مجله تحقیقات حقوقی
پیاپی 93 (بهار 1400)

The area of Law, Fiqh and Usul Al Fiqh, is the field of conflict of different matters. Among the conflict occurring in the area of Law and its branches, there’ll be “Conflict of Laws” in Private International Law, that is not limited to judiciary review or hearing and is prevalent in arbitral tribunals too, and its topics has been had a great development and depth, due to increasing references to arbitration. There is a topic in the area of Fiqh and especially Usul Al Fiqh, that is named “Conflict of Sources”,which in particular deal with conflicts occurring in these areas. Existing mentioned conflicts have to be dissolved and this important matter would be possible just through recognition of the “Logic” governing them. The resemblance of “Conflict of Laws” and “Conflict of Sources” is the element of “conflict”. Through the study of the “Logic” governing Conflict of Laws in International Commercial Arbitration and Conflict of Sources in Usul Al Fiqh, some resemblances and coordination between the conflicts occurring in these two areas, might be found. These resemblances might be arose, intentionally and by patterning or unintentionally and by accident.

A clinical approach to crime, offender, victim, and criminal justice as a model of criminal policy has a unique and impeccable position before most of the criminologists. In the past and present criminology literature, the clinical approach is recognized to have the same meaning as the concepts and standards of human rights such as preventing recidivism and social deviations, observing the human dignity of offenders, supporting the victims’ rights, rehabilitation of criminal convicts, fair trial,corrective function of punishment and aligning the offender’s interests with the supportive benefits of the society.While challenging the clinical approach in delinquency field through redefining it, using medicalization concept, this essay tries to show when, where, by whom, with which methods and principles and through what claims-making, the process of medicalization of crime and deviance has been done, and what results or outcomes have been or will be brought by this process for the medical profession, offenders, victims, criminologists, those who lay down criminal policies, the government and the people, who all are the claims makers.The result of medicalization process is the power to manage the criminology and criminal policy grounds in the favor of claim-making group – the reward which the medical profession has been benefited so far.

Nowadays, the high costs of litigation (attorney's fees, expert's fees and court costs, etc.), known as a challenge to access to justice, have encouraged the parties to seek justice and truth by using a variety of methods, such as third-party litigation funding to finance these costs. In this way, the investor, who is not originally a party to the suit, finances the party’s litigation costs in return for a share of the proceeds of the court verdict or settlement. Despite the benefits of third party litigation funding mentioned by proponents, it is essential to identify the challenges that have involved the judiciary and players in this industry. The lack of proper regulation, overall increase in litigation and particular frivolous suits, ideal rather than the reality of the "development of access to justice" as an important achievement of this entity, commoditization of justice, threat to the integrity of the judicial system, are the challenges of this entity in US and UK judicial system. In Iran, in addition to some of the above problems, authorizing the third-party litigation funding before preparation may lead to increase in the problems in the justice system.

Referral by a State Party is one of the methods set forth in Article 13 of the Statute of the ICC. The State Party may refer the situation to a prosecutor who has appeared to have committed one or more crimes under the jurisdiction of the Court. It should be noted, however, that the initiation of the investigation by the relevant government is a high priority, and therefore the drafters of the Divine Statute sought to prevent the perpetrators of international crimes from being included. The referral of the situation by the State party to the Court Prosecutor is of great merit and will undoubtedly contribute to the efficiency of the Court.The main focus of this research is on state referrals and not other methods of referral. In order to have a comprehensive analysis of government referrals, it is inevitable to examine the formal and substantive issues associated with it. For this purpose, basic issues such as referral, referrer, referral rituals, reference works, and finally the possibility of returning the referenced status will be studied.This research will analyze state's referral of status in the Divine Statute in the light of its practical application. The Court's main approach and priority is to prosecute international crimes by national courts. The foreseeable principle of supplementary jurisdiction in the Divisional Statute implies the validity of such a priority. State statistics on cases referred to the Court indicate that this method is favorable to other methods of referral in the Statute.

Due to economic power and less bargaining, the consumer needs special support from the powerful, and he does not guarantee his rights solely on the basis of the principle of contractual freedom. The consumers of the stock market, which are part of the financial market and are, in contrast, the real market, are no exception and even due to more specialized financial markets, paying attention to the weak stratum of the activists of this market is more important. Therefore, Consumers should be identified and eligible for special protection. Persons investing in stock exchange, are two categories some of them are beginner and non-professional and some others are specialist and obviously the first category needs special support. Although some believes that it is impossible to enforce the rules of consumer rights in the stock market, but it seems, despite the silence of the legislator, must the retail investors of this market, whose main occupation is not securities trading but also a subsidiary and complementary profession and their information is weak, called consumer and the right to use the special benefits of the Consumer Protection Act of 1388 in our country and other related regulations. . In contrast, institutional investors, who are specialist people and securities trading in their main job and due to economic and information power, they do not require special legal protection. As you can see, The concept of consumer in the exchange is somewhat different from the traditional definition in the relevant laws.

Tug-boat and barge are among the marine vessels operating in the sea, especially in the Persian Gulf. Tug-boats in the field of transportation of goods along with the barge can be used as a unit, and also play an undeniable role in field of providing services, especially in the oil industry. Because transportation contracts using this device in the Persian Gulf based on domestic law, in practice, there is a great divergence of opinions, and courts often decide, based on Articles 377 and 386 of the Commercial Code of Iran. This study was carried out aimed to investigate the responsibility of the owner of the tug-boat in various assumptions in accordance with existing maritime laws and conventions which Iran is one of their member, and to explain that the activities of tug-boat and barge owners, especially in the field of commercial twage and maritime transportation are subject to maritime law, and the owners can use the benefits of the Act, including limiting the liability of tug-boat owners in compliance with the 1976 Convention, which Iran has joined it in 2014. Another point is that the maritime law emphasizes the unpredictability of the owner's mistakes in barge and tug-boat owners in collisions at sea.

“Attribution of data message” is one of the most important issues in Iran's e-commerce law. Due to the novelty of the subject and the weakness of the relevant legal and technical literature, the subject could be improperly interpreted and understood. In this article, while analyzing articles 18 to 21 of the Electronic Commerce Law of Iran as well as proposing an amendment to the provisions of Article 19, an attempt is made to remove the ambiguities related to them. The precise concept, elements and factual and evidential aspects of “attribution of data message”, proposed methods in proving attribution, the concept and instances of the third party which have been impliedly and very vaguely provided in paragraph b of article 19, have been analyzed and discussed. Factual and evidential aspects of attribution of data message in the form of three assumptions; namely a method introduced by or agreed with the originator and the actions of the third party; have been explained and interpreted. Other important topics such as secure and insecure methods and secure procedure have been discussed: a secure procedure and its instances in proving attribution of data message could be technologically very sophisticated such as an asymmetric cryptographic system (using public key and private key) or could be as simple as a telephone call to confirm the identity of the sender through another channel of communication.

From a long time ago, law has always been considered as a means of peace and regulator of the relations between individuals and human societies. The pen of the various philosophers and thinkers involved in the field of war and peace has been ultimately stopped on the word "peace" and attempts by prominent writers such as Hugo Grotius in his book The Rights of War and Peace in order to explain the legitimate reasons of war had no purpose except to reach “peace” via the reality of “war”. The new doctrine that is changing the international relations of countries and that will extend its shadow on the purpose of law as a means of peace is the doctrine of “lawfare”. The present article, through a descriptive-analytic method and by means of content analysis, with a philosophical critique and a futuristic look, aims to illustrate the possible future of international law influenced by this doctrine. This article will conclude that in order to cope with any diversion and change in international law, by emphasizing the unity and integrity of international law; preventing its fragmentation and strengthening the concept of legal peace (Lawpeace), the theory of legal war or lawfare won’t materialize more than this.

The authors of the Iranian Civil Code tried to codify and write the code based on or in accordance with Imamiyeh jurisprudence. . In the general rules of contracts and obligations, translation and adaptation of French law - which is based on the theory of obligations - has taken place, while in certain contracts it has been mainly adapted from Imamiyeh jurisprudence. The different foundations of these two sources, one based on the theory of obligations and the other based on the theory of property transferring, have caused conflicts in several cases of civil coded. Iranian jurists do not have the same view in analyzing the provisions of civil code: based on the general theory of obligations or the theory of property transferring. Citing some narrations (ahadis) and interpretations of some Islamic jurists, some believed that Imamiyeh jurisprudence as opposed to Sunni jurisprudence was based on the theory of obligations. Others, by specifying the alienation of the general theory of obligations, consider the theory of obligation as a secondary matter in Imamiyeh jurisprudence. It seems that Imamiyeh jurisprudence and most of the provisions of Iranian civil code are based on the theory of property transferring. This research answers several questions about the above mentioned matters .

The atrocities committed by Ukrainian government forces and pro-Russian separatists are one of the deadliest in a decade. The United Nations Human Rights Monitoring Mission in Ukraine(UNHRMMU) reports on the escalation of casualties in the conflict and the occupation of Crimes, and its participation in the conflict in eastern Ukraine as a serious violation of the international law, including massacre, harassment. abuse, violence, unlawful detention, and other forms of what has often been described as individual and collective human rights violations as war crimes. Therefore, the jurisdiction of the International Criminal Court can be established in dealing with such crimes. Although war crimes can be committed in the context of international and non-international armed conflicts, despite the commonalities in nature, it is acknowledged that some war crimes are not criminalized in international armed conflicts. This article seeks to confirm the link between war crimes and armed conflict in Ukraine, which is a tool for identifying useful criteria for the International Criminal Court, and the criminal responsibility of actual and potential perpetrators of horrific acts on both sides of the conflict in accordance with the Court's jurisdiction to measure.

Informal constitutional change (Foundations, Cases and Approaches)Informal constitutional change is one of the issues raised in the constitutional theory that is under discussion in the constitutional reform. In constitution there are ways to reform and revise the constitution that recognized as formal constitutional change. But the constitution changes in other ways, which is called the Informal constitutional change. In this way the constitutional text remains constant, but its content and meaning change. This method exists in the constitutions, but it is not easily detected. Among the Informal constitutional change the interpretation of the constitution and the constitutional convention are more famous than other methods. In this paper attempts to examine the foundation and reasons for Informal constitutional change, approaches and practices, as well as the limits of Informal constitutional change. The research is analytical and descriptive, and seeks to identify the foundation and methods of informal change in the constitutions.

Provision of certain conditions of the penal liability provisions of Article 91 BC is subject to the application of these penalties. Contrary to note 2 of article 88, article 91 of the Islamic Penal Code of 2013, there has been a serious change in the criminal response to juveniles who have committed the crimes punishable by Had or Retribution Sanctions. This article identifies the three situations as factors for the punishment of retribution or retribution. In these cases, he has been sentenced to one of the punishments mentioned in this chapter, rather than punishment or retribution, according to his age group. At the same time, the criterion for growth and perfection of reason has not been determined and this can cause many problems and ambiguities in practice. In this context of various challenges, it has generated a great deal of controversy, on the one hand it raises the question as to what crimes, perpetrators, and in what ways can juvenile delinquency alleviate juvenile criminal liability to punishment of retribution and retribution? He knew, and on the other hand, which challenges faced in the legal and judicial frameworks would make the development of juvenile delinquency in the process ambiguous. Accordingly, this paper, with a descriptive-analytical approach and an overview of the various jurisprudence and opinions of different judges, has led to the conclusion that juvenile delinquency in adultery and retribution offenses is a new but at the same time very different challenge. It has not been properly expressed in judicial procedure.

Achieving gender equality is a long-term project that is required gender mainstreaming and comprehensive reforms inside of legal system and outside of it via legal measures. Completing such a project requires long-term perspective that includes these steps: first determining dimensions of necessary changes as goals of project; second choosing a model for reforming as tools of project, and third recognizing indicators to evaluate achievements of project. In this article four dimensions are recognized as gender equality: redressing disadvantage, stigma, stereotyping, humiliation and violence, accommodation and transformation norms, and agency and voice; and good governance is presented as a model. Results show good governance, as a procedure-oriented method, focuses on process and context of lawmaking instead of content of rules. If its element, namely Participation, Rule of law, Accountability and promotion and protection of human rights are fulfilled simultaneously, the process and context of lawmaking will be changed in favor of gender equality.

Determine the arbitrary nature from various aspects is very useful. Definition of arbitration by considering four specifications: being binding, settle the dispute by a third person, being legal and being contractual are preferable as follows: arbitration is legal and enforceable settlement of the available or future dispute by the contract’s parties, by the third person or persons whom are elected by the parties or are appointed by a court or third person. Regarding the nature of arbitration condition some independent condition theories, result condition and the condition of being action are stated, but it should to be mentioned that the first discussion about the acquisition of the will power of the parties is the condition of arbitration. If it is deduced from the contents of arbitration condition whether explicitly or implicitly that the parties’ will and intension implies that by termination of main contract, arbitration condition is cancelled, in this case, there is no doubt about subordinate nature and non-dependence of arbitration condition. In domestic arbitrations, because of the absence of legal precision and in case of finding no will power from the parties, We conclude from the contents of the contract regarding the independence or the dependence of the condition of arbitration and in the attribution state e conclude that the arbitration condition in this manner is a type of independent condition whose nature indicates that the parties agree on the method, manner and the authority of dispute settlement in a contract.

AbstractCivil code is the central pin of legal systems in every country. The more the terms of the code are based on popular, present national and historical traditions of the country and, as Seqat-ol-Eslam Tabrizi calls, are congruent with “the taste of the Country,” the more its consistency, durability, and efficiency will be. Iranian Civil Code was likewise compiled by Civil Code Compilers Assembly based on Shia jurisprudence and was legislated by the Legislative Assembly of Iran. With respect to the fact that the code was legislated at the ministerial period of Ali Akbar Davar as the Minister of Justice, some have asserted that he was to compile civil code based on Western communities laws and by utilizing foreigner consultants, an idea which was confronted by Mohammad Mosaddegh; and backtracking from his former idea as a result of Mosaddegh’s speeches in Sixth Constitutional Parliament, Davar decided to compile civil code based on Shia jurisprudence by aid of an Iranian assembly. Investigating and comparing related historical documents, the present study aims to investigate such a hypothesis, and the results indicate that neither Davar was to compile the Civil Code based on Western laws nor Mosaddegh claimed the same posit.

If one can define the International Law System as the legal regime governing the creation and evolution of applicable rules in International Community, the study of position and functioning of each individual factor in this system is derived from its position in the Community. Present paper tries to find the essential element in the definition of Community and its effect on the functions of international courts and tribunals to justify their position within the system and community. a Normative approach to Community puts the concept of Legal Authority at the heart of any argument; therefore, position and functioning of system’s factors is a derivative of our understanding of this Authority. Since the permanent mutual interdependence between a structure and functioning of its factors is guaranteed by the Circulation of Meaning in a Social Systems, contribution of international courts to international legal authority is subject to their contribution to generation and evolution of meaning on international rules.Therefore, there is a hierarchy among (quasi)judicial institution in international law that reflects the hierarchy of meaning in international community.