نشریه دیدگاه های حقوق قضایی
پیاپی 91 (پاییز 1399)

The purpose of this study was to identify the legal-jurisprudential position of the jurist in law. The research is theoretical and has been analyzed by reasoning and deductive method. In the Islamic Republic of Iran, Islam is the core of all laws. These principles and principles are governed by the principle of Article 4 of the Constitution and the principle of the guardianship of the Supreme Leader as a just and truthful Islamist, and the director and leader of the Guardian Council and the embodiment of the Guardian Councilchr('39')s exclusive jurisprudence with the  conditions of poverty, justice and awareness. It is unique in the requirements of the time and the issues of the day and in its competence to examine the origin and conformity of laws and the right to invalidate laws contrary to Islamic law. The Velayat-e Faqih is one of the most important institutions of the Islamic Republic of Iran, which, according to the constitution, plays a vital role in the direct and indirect exercise of law by electing members of the Guardian Council and the Expediency Council.

Taking into account of rapid growth of international trade and the dramatic increase of the disputes arisen therefrom, it is indispensable to recognize the opportunities and challenges of "Electronic Alternative Dispute Resolutions (EADR)" for commercial disputes and to identify the conditions of interventions by the relevant governmental entities in the regulation and control of activities of online arbitration or mediation tribunals.This Article, at first, describes the history, opportunities and challenges of “EADR” and prevailing obstacles hindering its development and then, in the following sections, we will endeavor to clarify the roles and function of Judicial Power in its support, contributionand supervision for the development of “EADR”.As a conclusion, any intervention by the Judiciary Power in these activities must be planed and executed in the close cooperation with other relevant governmental and non-governmental entities so that no parallel action occurs in these regards and any inconsistent or insular official program is avoided. In addition, the prerequisites for the recognition and enforcement of online dispute resolutions should be identified in more details. Thus, we must try to provide coherent judicial precedent and realize and introduce the potentials and specific roles that the Judiciary Power can play in these reagrds..

In the study of parliamentary structure, sub-objective criteria should be considered, which in practice have given a concrete concept to the legislative matter, and this concept, which has the accompaniment of object and subject, is realized in the form of parliament. This paper examines the formal criteria for the emergence of legislative structure. Because the structure of the legislative system affects both the nature of the law so that it is not produced from the wrong form of the right content and is itself influenced by other components. These components are a set of formal rules that are in place during Nation-State building has played a significant role in every country and can be examined under the three criteria of legal forms of nation-state, cultural diversity and social, political, racial, religious and other minorities. Also, these formal criteria play an important role in the structure of countrieschr('39') legislation in the form of single-session and two-session systems. An effective way of determining the structure of legislative systems is discussed.

The Internet and new Information and Communication Technologies (ICT) have influenced not only the traditional institution of arbitration but also has led to the emergence of “online arbitration”. These tools have created an environment for audio and video conferences in cyberspace, which mostly removed the need for face-to-face and physical meetings between the parties and arbitrators. It also allows the whole dispute resolution process to be processed solely in cyberspace. The award is also issued electronically and communicated to the parties by e-mail or other communication tools agreed upon. This paper, while introducing online arbitration, examines the arbitration proceedings, issuance, notification and enforcement of awards in the online arbitration. By trying to provide answers to the relevant challenges, it is concluded that online arbitration is a reliable and effective method for solving disputes, and the award issued via this process is also applicable in the framework of the New York Convention.

The process of reporting an illegal occurrence in a structure is called whistle-blowing by the person in the same structure or outside it. The whistle-blowing is divided into different types depending on who does it and direct communication with Corruption or a fraudulent act. Although not widely used in the legal literature of the world, it has a rich history in the fight against economic and administrative corruption in terms of the performance of the person doing it. Today, whistle-blowing has received the attention of many lawmakers in the countries. And domestic legal systems and numerous laws have been enacted about that. Providing a precise definition of whistleblowing and revealing its nature regarding its evolution from the past to the present, as well as its relevance to modern journalism activities and evaluating the benefits of whistleblowing compared to other costly methods of discovering economic corruptions while examining the legal systems of selected countries and the strengths and weaknesses of existing laws in Iranian law is The Noteworthy of this Research.

Natural Obligation is an Obligation which its Implementation has Conscious Aspect and ignores the Legal Executive Guarantee. Regarding to the Lack of written Resources in the full Description of the Article 266 in Civil Law, The Institution of Natural Obligation has not found its place in the Iranian Legal Literature and this is the reason for the Lack of Judicial Procedure in This Context. In this Article, with Respect to the Decomposition of the Essence of the full Legal Obligation to the two Elements of "Debt" and "Coercion to Payment", We Consider the Basis of Natural Obligation as "Incomplete Legal Obligation of the denatured Type" in which, the Natural Obligation is the Obligation that Formerly was formed based on a Complete Legal Relationship and then, according to the expediency, the Legislator has deprived it of the Element "Coercion to Payment". Successive to the Identification of Basis of this Legal Institution, We have expressed the different Types of Entering Methods of a Natural Obligation into the World of Full Legal Obligations, Including Contractual, Unilateral, and Involuntary Ways.

The main idea of this paper is to explore different legal instruments in addressing environmental pollution. Given that from the public interest theory, traditional instruments such as tort and liability rules are not sufficient to control environmental damages, we need some forms of government regulation. However, the need for government intervention does not deny the role of private solutions in preventing environmental harms. Therefore, the question arises how liability rules and regulation can jointly deploy to mitigate the environmental risks and how they influence each other? Finally, it should be asked that which of liability rules is more efficient for internalizing environmental externalities.

 Conflict of legal evidence is one of the most serious issues in the law.The legislator is unable to provide a complete rule despite of careful attention and predict all the things that happen in the future;so conflict may occur in their laws and their materials.conflict of laws, leads to chaos issuance of verdicts,absence of  the justice and fairness and confusion of judges.the Conflict of law belong to the process of legislation and it may occur between laws at the one level or at hierarchical orders. Another genus of conflict may happen between common law and canon law. therefore, the jurists have sought to find a solution to solve this problem. in this study,after analyzing multiple books and articles and also with detailed study of the unanimity of policy unity, consultative theories, judicial meetings, are trying to explain different forms of conflict and the criteria to solve it; especially in the case of criminal law that is to balance the balance between individual rights and public security. therefore, the importance of this issue is obvious in creates a fair order and prevents the imposition of different tastes.

comparing the conditions to match the accuracy of contracts in terms of conditions and the arbitration agreement In the Code of Civil Procedure no definition is offered of arbitration, but paragraph C of article one of the code of arbitration in international commerce has offered a definition if it. Arbitration agreement is contract and agreement by and between parties throughout which the manner of resolving the upcoming or current disputes is bestowed on a third party for arbitration except for judicial courts. Proviso  falls under the category of the term contract which is inserted in the beginning of the article 190 of the mentioned code because it is intended by and is mutually agreed by the parties and the two parties by free will write it to establish this condition. Within the domain of the term transaction which stands at the top of the mentioned article 190.The condition of arbitrations an independent condition, despite its appearance which is a proviso, is that it has an independent essence and is valid and in terms of independence is considered as an independent legal act such as contracts

Sometimes people have priority to others due to having the right of Priority In conducting a legal action or demanding the fulfilment of right of a certain property. Sometimes the legislator has considered it for some reason for some persons in a particular position. The right of priority is protected by the legislator, and sometimes it is explicitly forbidden to opposing contract with it. However, the guarantee of this ban, there are disagreements between jurists and lawyers in the cases stated. Some believe conclusion of opposing contract with priority is void; in contrast, some are considered valid, in the end, others they have chosen the middle solution and they believe that the deal is not affected. In the examples of priority, the overall conclusion is that opposing contract with priority is un enforceability to third party; Because these transactions have all the components of the contract, except that there is a barrier to their influence, and that obstacle is the right of priority of the beneficiary, which, in the event of the subsequent payment of his rights, automatic be valid. Accepting this guarantee solution will not only supply the rights of the rightful owner butalso the rights of the parties.

One of the common ways of transfer of commercial documents, ownership (bill of exchange, promissory notes and cheque) is endorsement. If the endorsement is subject to Commercial Code, it is considered a commercial endorsement. And if it is out of the scope of this Code, it should be regarded a normal and on the basis of request (claim) transfer. The question that arise here are “how long are the endorsements of commercial documents considered commercial and should its endorsement be considered ordinary or civil?”Although Iran’s Commercial Code is silent on this issue, the Geneva and UNCITRAL conventions have explicitly or implicitly clarified the issue. The result of the study indicates that if the document is endorsed before due date or even after it and before making a protest or until the expiration of the protest, the endorsement should be considered commercial and subject to the rights and obligations set forth in the aforementioned Code and conventions; otherwise, he transfer is regarded normal and justified under the provisions of the Civil Code and the above-mentioned conventions.

Criminalization of an act in cyberspace, and limits of other formal, and informal control means is considered as a determining factor for liberation scope; so it should have strategic principles. These criminalization principles are: Principle of Criminal Interaction Intervention with Supportive Interventions, the principle of determination of criminal titleschr('39') scope, and other mentioned terms in the Budapest convention on cybercrimes, and additional protocol of 2001, that is a pattern, and guide which determines Selection method, and applying of moral rules, and framework of criteria, and limits based on certain theoretical bases, and normative considerations. In an analytical-descriptive manner, this paper tries to answer this question how much an action is considered in two legal systems of Iran, and Germany to criminalization in cyberspace, and what the useful findings of German criminal system for Iran criminal system are? Findings show that German legislator has made, according to cybercrimeschr('39') convention and some international instruments, a determination between criminal scope and limits, and used of pecuniary based on administrative, and civic enforcements as much as possible. But this determination has been not made by Iranian legislator.

In the law of Iran, it is possible to agree on Maintenance in temporary marriage. On a permanent marriage, despite the fact that article 1106 of the civil code has entrusted the husband with the maintenance of a woman, but the legislatorchr('39')s position about an agreement on abandonment or change in the obligation to maintenance in permanent marriage is not clear and there is no legal provision in this case. On the contrary, English legislator has put the agreement mechanism at the top of the list to regulate coupleschr('39') financial relationships. The present article explains the approach of the two legal systems regarding the issue. It is concluded that The Unilateral duty of maintenance and Compulsory approach of Iranian legislator, in the present era is not consistent with the specific circumstances of all Iranian families. In present situation, it has been suggested that, like the Law of England, the Iranian legislator expresses the possibility of an agreement on maintenance in the permanent marriage as a start in changing the legislative approach and modifying the unilateral duty of maintenance.

It is said that the externality is the consequence of an action being taken on others in the form of profit or expense without being calculated at the market price of the commodity and it is usually unintentional and unelected.In this article with descriptive–analytical method it has been answered: what is the pattern of Iran legal system related to the environment to compare with the externality? It has been more emphasis on “licenses” or “punishment” pattern? The research findings are first; The primary focus of the Iranian legislative system is on the "punitive model" and the pattern of permissions is not institutionalized Therefore, the recent pattern faces many obstacles. This pursuit viewpoint is incompatible even with the main objectives of the judiciary (sections 2 and 5 of article 156 of constitution). Second; it not used the balanced the all of the tools in the use of tools compare with the externality but some of tools, in particular market-oriented tools, has a very low position. Thirdly; however, "Eco-friendly" tools are listed in some legal documents, but in some documents, the principles of environmental friendliness have been marginalized and as a result, green taxes have not been well-positioned in our legislation.

This article contains a critique of the religious intellectual approach to human rights from the perspective of universality or relativism and organizes this critique in the light of Islamic principles. The intellectual-religious approach to human rights begins with the ideological assumptions of this movement and is defined between Islamic and Western approaches. The Western approach claims the universality and transcendence of human rights. The Islamic approach, while emphasizing on the Human Nature, believes too in universality of human rights; but first, it disagrees with western approach on the nature of the Rights and secondly, it takes into account some sort of relativism as a subsidiary approach to the issue. Meanwhile, Religious Intellectualism, in spite of basically relying on the philosophical foundations of relativism, admires Western universality of human rights. The authors, using Descriptive–Analitical Method, try to provide a critique to this duality under the dialectic between Islam and western human rights and answer to the question that what are the criticisms on the Religious Intellectuals approach to human rifgts in the light of Islamic principles and between the two approaches of universality and relativism?