مجله حقوقی دادگستری
پیاپی 114 (تابستان 1400)

Fraud as an exception to the principle of independence of documentary credit from the underlying contract is one of the key challenges facing the issuing bank, which in particular has been more the center of attention in deferred payment letter of credits. In case, the proceeds of the credit are assigned to third party by the beneficiary through the discount of the credit and it is later discovered that the beneficiary had committed fraud, so in such a case, this question arises whether in Iranian legal system, the third party assignee shall be immune from the effects of fraud committed by the beneficiary? In this regard, some believe that according to the general rule that "no one can transfer to another more rights than he has", the assignee of proceeds shall not be immune from the effects of fraud. From a comparative law perspective, there are two profoundly different approaches concerning the impact of fraud on the rights of the assignee of proceeds. According to the first approach accepted in the English legal system, an assignee of proceeds shall not be immune from fraud, even if it is considered as a bona fide holder. However, according to the second approach which is reflected in Section 109 of Article 5 of the US Uniform Commercial Code, the assignee shall be immune from fraud on condition that it is considered as a bona fide holder. In Iranian legal system, although there is no specific law in the field of documentary credits, such a person must be immune from the effects of fraud having regard to the banking practice, case law, and legal doctrine, as this is requisite for maintaining the commercial utility of letter of credit as an important financing mechanism.

"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although with the return of the legislator from the managerial approach and determining the two criteria of "specialization" and "order", in drafting Articles 448 and 465 of the Code of Criminal Procedure, It has taken an important step towards the rule of law and the oversight of managers, but the lack of full entry into this field, The challenge of overcoming this problem remains unresolved. And despite the Supreme Disciplinary Court's commitment to legislative safeguard policies, the lack of coherent rules and adequate safeguards in this regard allows any referring authority to abuse its powers and legal loopholes to curb the initiative. And by his purposeful referral, divert the course of the proceedings from the path of justice and deprive the parties to the dispute of the right to equality and the enjoyment of an impartial tribunal. Therefore, diligence in training and reducing the concentration of power of the referral authority, selection and appointment of experienced, committed and specialized managers, explaining the position of the referral in the trial process and aspects of appealing against votes, setting appropriate deadlines and comprehensive criteria for referral, along with performance guarantees Special and providing desirable oversight, can help to refer wisely and impartially and thus improve the efficiency of the judiciary and community satisfaction.

The suspension of the human rights is one of the solutions which was designed to strike a balance between the need to respect human rights and human freedom and safeguarding of public interests in the emergency status. In the meantime, in order to prevent any possibility of misuse of authority in recognizing the necessity or non-necessity of the suspension of the human rights by government, some preconditions have been provided. In this context, due to the implicit recognition of the possibility of suspension of human rights within laws of Iran, the present study aims to investigate with a descriptive-analytical method whether the judicial oversight in the process of suspending human rights can play an effective role in preventing possible human rights violations in this process? The results indicate that after review of existing jurisprudence one can conclude that judicial oversight of the judiciary on implementation of preconditions of the suspension can play an effective rule in protecting the rights of the citizens. It is important to note that in the entire supervisory process, three basic criteria and principles, namely the rule of law, judicial independence and impartiality, must always be at the forefront of the work of the relevant institutions in the judiciary; Criteria that each of them depends on appropriate guarantees by the judiciary.

Human rights are traditionally discussed in public law and in government-citizen relations, but this does not mean denying its impact on private law. In contract law, principles such as the rule of will or freedom of contract are themselves in line with human rights principles, but are not sufficient to fully protect fundamental human rights. For this purpose, it is necessary that other principles can be introduced as principles in line with traditional principles in contract law. The most basic principle of human rights is the principle of human dignity. The question is, to what extent and in what way can this principle be applied in contract law? Can fundamental rights derived from this human rights principle be revoked by a contract? In this article, with emphasis on various cases in the jurisprudence of some countries and the European Court of Human Rights, we have come to the conclusion that The principle of freedom, which includes important rights such as human dignity, the right to respect for family life, and the principle of non-discrimination, which encompasses various aspects, sometimes as a limiting factor of the will to prevent the infringement of a condition or contract contrary to them and sometimes fundamental rights arising from these principles. As general civil rights, they are also partially irrevocable or revocable. The research method has been library and by studying the judicial practice of countries and Iran.

The New York Convention of 1958 as the major international instrument about arbitration, despite its title, does not entirely concern recognition and enforcement of arbitral awards, but also deals with the recognition and enforcement of arbitration agreements. It was dealt with this later subject in Art. II which was, at the initiative of Dutch delegation, included into the text at the closing date of the Conference and led to various ambiguities before Doctrine and inside the case law of member states and it can be said that Art. II is one of the thorniest provisions of this international instrument. The issues ranging from arbitration agreements covered by the Convention, the applicable law to arbitrability of the dispute, and compliance with formal requirements, inconsistent with international trade, to conclude arbitration agreement, to the issues regarding the ambiguities of Para. 3 of this Article concerning process, conditions and obstacles to the enforcement of arbitration agreements, caused the application of Art. II of this instrument to be viewed as Achilles' heel in the case law of member states to the extent that even some old proponents of the Convention have insisted on amendment of this instrument, including Art. II, and proposed for a so-called Miami Draft. In conjunction with examination of the ambiguities of Art. II, this essay examines its application in the case law of the member states and as well as the Miami Draft. It is hoped that this enriched case law could help Iranian courts in harmonized application of the Convention in the stage of recognition and enforcement of arbitration agreements.

Legal systems and International documents to ensure the rights of persons in contractual relations have paid attention to various sanctions and have accepted the compensation method as one of the most important sanctions ; therefore, there is no doubt that damages in legal systems and international documents are compensable. However, when the damage is subject to the judgment, the criterion of Assessment of damages becomes important; because the lack of criteria for Assessment of damage leads to inefficiency of the sanction. Accordingly, in legal systems and particularly international documents, have been attempted to provide criteria for assessing damages. Regarding the weakness and ambiguity of the Iranian legal system on damages, the results of this study can be useful for lawyers and judges and on the other hand, it can be useful for the legislator to inspire the criteria provided in order Regulations.

The outbreak of the coronavirus was first reported in Wuhan, China in December 2019, and gradually spread to the rest of the world, including Iran. Among the effects of this epidemic are the hardening, frustration, and impossibility of contractual obligations, which are discussed under the Hardship, Frustration, and force majeure, respectively. Of these excuses, our legal system has only accepted the explicit criteria governing the Force Majeure, which is also based on the impossibility of the commitment. the months-long experience of countries and the comments of official national judicial authorities indicate a tendency to accept the maximum of coronavirus conditions as Force Majeure. The corona pandemic and its limitations are temporary in nature. In the meantime, however, it will be necessary to consider the type of commitment in terms of unity or plurality of the desired, with this explanation that in cases of unity of the desired, the conditions resulting from coronavirus will essentially lead to the termination of the contract and the discharge of the obligation, as opposed to the multiplicity of the desired, which temporarily impedes the suspension of the restrained part and the retention of the obligation in the possible parts. Predictability of legal prohibitions due to corona outbreak has discharged a wide spectrum of corona-driven conditions from the title of Force Majeure. Ultimately, it is the judge who must have to state if they meet the conditions of Force Majeure, and the mere declaration of a state of emergency by national and international authorities will have no effect on its realization in single cases. However, the legislature's intervention in determining the legal status of obligations that have become hard-to-perform due to corona pandemic, results in judges not needing to rely heavily on secondary rules such as principle of “la zarar” or “la haraj” principle” of hardship.

By passing Article 729 of Civil Procedure Code of 1318, term of “Civil Penalty” was entered in Iranian legal system which of course it is an adaptation from "Astrant" –a legal entity -in French legal system. By passing Civil Procedure Code of 1379 and because of its changes and modifications that was without an article like Ex 729, some believed in Legally abrogation of such a legal entity from the Iranian legal system while the others think according to the note of Article 47 of the Law on Enforcement of Judgments, this entity still exists in our law. Notwithstanding about mentioned dispute, recently the legislature in some rules such as Note 1 to the repeated article 10 of The Rule of Ownership of Apartments and article 21 of The Rule of Execution of Financial Sentences has set kind of fine that is similar to “civil penalty”. Thus, here we intend generally to study Islamic and Iranian legal systems to determine; whether the entity of “civil penalty” is against Sharia law or not and what it is its nature? Or could we identify it as a general theory? Method which used in this research, was a descriptive-analytical typical (by using libraries facilities, to investigate the answer of these questions) and outcome shows: “civil penalty” is compatible with sharia and sort of punishment that we call it “Taazirat” and we could identify it as a general theory and by the way it is similar to “punitive damages” in English law and also more functional than that entity. So if we pass it as a rule in our legislation, it can help lots of issues of civil law.

The "uniformity of the judicial precedent", according to the provisions of Article 161 of the Constitution, is one of the aims of our judicial system. There are various ways to create uniformity of the judicial precedent, including issuance of Decision as a Unified Judicial Precedent. Both the Supreme Court and the Administrative Justice Court have the legal authority to issue of Decision as a Unified Judicial Precedent, and so far, many of the two chambers have issued Decisions. However, the Decisions as a Unified Judicial Precedent faces many challenges that, given the important position of these Decisions in our legal-judicial system, it is necessary to address these challenges. The first step in achieving this goal is to identify the challenges that are the subject of this paper. The main question of this article is: What are the challenges facing the Decisions as a Unified Judicial Precedent? The results of this descriptive and analytical study show that some of the challenges of this institution are structured in nature, which can be inconsistent with the constitution, the lack of religious and constitutional supervision, the multiplicity of issuers and overlapping subordinates, inaccurate basics of Decisions, Lack of coverage of out-of-Decision conflicts. The unclear timing of entry into force and the extent of their impact on the past can be mentioned. Others are rooted in the functioning of the issuing authority, which points to Non-Sufficiency, Not timely, non-compliance with Choosing more important things, and lack of Strength.

The relationships between the prosecution service and the police follow distinctive models (hierarchical or network) in accordance with the ruling procedure system (accusatorial or inquisitorial). In the system of the Islamic Republic of Iran, the hierarchical model is used in the relationship between the prosecution service and the police. Studies show that there are deficiencies in the relationship between the two organizations. The present article seeks to provide an optimal model of the relationship between the prosecution service and the police in the Islamic Republic of Iran. This research has used the library methodology, and the proposed model is designed according to the existing circumstances and realities of Iran's criminal justice system and addresses its aspects. The model of prosecution service and police relations at its best situation, results in more efficiency and effectiveness in detecting, prosecuting and investigating crimes. The aspects of the optimal model for Iran's police and prosecution service relations are as follows: 1- Assignment the crime detection function to the police, 2. Two-way communication based on the network model between the two police and prosecution service and, as a result, the equality of the two organizations with each other 3. Assignment of execution of investigations to the judicial police, 4. Separation of the investigating authority based on the severity of the crimes 5. The administration of the prosecution service on the judicial police; in this way, the judicial police are established and run under the dominion of the prosecution service, and at the same time, in proportion to the circumstances, enjoy a flexible and moderate sovereignty.

The process of acquisition of land in English and Iranian law takes place under a specific procedure that may be questioned for validity. One type of the examining of objection is judicial review, which is high supervisory, will be applied in such manner that all actions will be in accordance with the elements that are necessary for acquisition. The source of the judicial review is different between English jurisprudence, so three views have been put forward on the subject that compilation of ultra vires doctrine with common law, has excelled. But in Iran, despite judicial precedent effort, the law-based view remains dominant. The English judicial precedent has also taken appropriate steps in the development of this theory in the law of acquisition of land and has outlined various ways in motives of judicial review; substantive ultra vires and procedural ultra vires, infringement human rights, legitimate expectation, natural justice, proportionality, unreasonableness. However, the English judicial precedent has made some exceptions as general policies of the country. The major of decisions in judicial review in acquisition of land, are in the form of quash. However, there are some cases in the English judicial precedent that have been cited another decision.

Committing a crime for self - defense is justified provided that, instead of defending against attacker, this crime is necessary for repelling the danger. In cases of escape possibility, because of elimination of danger repelling necessity, prohibition of battery and murder for “ nahye az monkar” without permission of ruler, and respect for the attacker right to life, it is not justified to use deadly self – defense. Deadly self - defense refers to inflict grievous bodily harm, or using cold weapon or firearm thereby puts the attacker right to life at risk. This article studied the topic with descriptive analytical methodology, and concluded If the defender, despite of escape possibility, uses deadly self – defense, thereby commits an intentional crime against the person, considering Islamic jurisprudent bases of note 2 of article 302 Islamic penal code, legal interpretation, and case law of supreme court, he will be subject to the rule of the mentioned note. Studying the United States legal system comparatively also shows that in compliance with the “ duty to retreat “, deadly self – defense could not be used.

Community service order is considered as the most prominent example of community-based punishments, entered in 2013 into the Iranian Legal and judicial literature. Therefore, it was expected legislator by a set of comprehensive statutes that are far from multiple challenges, created a context for effectiveness of this new institution in line with achieving its main aim of reforming and reintegrating the perpetrator. Thus, the main question of the present article will be whether the set of statutes and rules and in accordance with the targets intended for community service order, so that it leads to the greater effectiveness of this concept? In this regard, the authors at first studied 150 related judicial decisions and identified the judges issuing them (purposive sampling) as the main actors in this study and the gathered the data afterwards by conducting semi-structured in-depth interviews gathered its data. The data indicated that there are legal challenges at the sentencing stage and subsequently after conviction. The research findings also show that Iran's macro-judicial policies related to community service order (reducing the punishment of Community Service Order as an alternative to imprisonment and considering it as a means to reduce prison population) were not commensurate with the inherent goals of this community-based punishment. And finally, it has paved the way for many challenges. This disproportionate targeting can be categorized into the following two classifications: “Failure to identify actors in proportion to the nature of the punishment”, “Failure to identify situations appropriate to the nature of the punishment”.

The Law on Translation and Reproduction of Books, Magazines, and Audio Works, passed in 1973, is one of the rare laws that has not yet been discussed in any paper. Perhaps one of the reasons for this inattention is the ambiguity and ambiguity that each of the articles of the law in turn raises. Undoubtedly, the lack of a coherent intellectual flow of the law by the legislature, the lack of social sensitivity in protecting people with neighboring rights, especially artists-executors, the researchers' disregard for the rule of law, all contribute to this valley. The subject of this article is to ask these questions and answer them first, according to the national and international laws governing copyright and related rights. I hope that in future research, it will be promoted by well thought out and well-liked researchers of intellectual property rights and will be effective in protecting the neighboring rights.

There is no doubt that mother or father, who is not awarded to have the custody of the child by the court, has visitation right, as Article 29 of the Family Support Act (passed in 1391) and other related acts including Article 1174 of the Civil Code clearly recognize this right for them. However, Article 29 of the mentioned law claims that in addition to parents, relatives are rightful to visit the child. According to the law, visitation right is mentioned in divorcement chapter and therefore this question arises that their visitation right exists only when parents are legally divorced or they also have the right when parents live apart or even when the child is under custody of both parents. To answer this question, this article is pursuing to prove that relatives who are in blood relation with the child (known as relative relatives) do not have absolute and independent visitation right; In fact, their right is conditional upon death or absence of parents, unless emotional attachment and child's interest and prudence exceptionally necessitates visitation to relatives.

In the latest edition of the 2020 Restorative Justice Handbook, restorative justice is defined as any program that uses restorative processes to achieve restorative goals and outcomes. This definition shows that restorative justice adheres to common goals, norms, and criteria for adopting restorative measures in various legal, social, cultural, and economic contexts, without being limited to an ideal pattern, procedure, or process.So, the desirability of a restorative justice program does not depend on a particular model, but on having features that can bring restorative interventions as close as possible to the goals and outcomes of restorative justice. Accordingly, this article, which is qualitative in nature and descriptive-analytical in method, addresses two main issues: First. What are the characteristics of a desirable model of restorative justice; desirability in terms of the extent to which the most restorative goals and values ​​are achieved, regardless of the model of restorative justice and second. using the method of interviewing twenty judges of criminal court (1) in a Tehran province and thirty victims of sexual violence (both men and women), also addresses this issue that if a judge's restorative interpretations are to be one step away from the status quo in cases of sexual violence and contain more and more features necessary to achieve the most restorative values, then what is the procedure? The result of the research shows that "using trained actors of restorative justice in criminal courts", in the current conditions of the Iranian criminal justice system, is a procedure that can represents the most number of features of a desirable model in these cases.