نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 22 (بهار 1400)

Accusation is one of the manifestations of criminal law contracting, on the basis of which the accused and the prosecutor agree that the accused should accept the accusation and cooperate with the criminal justice system in exchange for benefits such as change of type. This research, which follows a descriptive-analytical method, examines the feasibility of implementing a charge transaction in Iran. Existence of restorative justice institutions, justification based on measures of justice and expediency, possibility of criminal deviation in the process of handling charges leading to ta'zir punishments, etc. are examples of the grounds for accepting this institution in criminal law. The instructions of the head of the judiciary and flexibility in criminal and judicial policies, legitimacy and enhancement of the criminal justice system and the use of constructive criminological consequences are some of the grounds for accepting this institution in our country. This study has found that due to the existence of links with the prosecution institution in our country's criminal justice system, it is possible to predict this criminal institution in the future developments of Iran's criminal procedure.

The sovereignty in any legal system is divided into separate sections with independent functions. The legislative task is generally delegated to the legislature, whose members are elected by people. In the system of the Islamic Republic of Iran, the general authority conferred by the Constitution in accordance with Article 71 of the Constitution has been assigned by specific legislative bodies. The existence of these institutions is necessary and useful for organizing minor affairs and community events. Certain legislators sometimes violate the hierarchy of laws and the rule of law, inflate laws, function in parallelism, and fail to recognize rights and duties by departing from the jurisdiction of other entities. The Supreme Council of Cyberspace is one of the special regulatory bodies in Iranian legal system whose review shows that the Council has set out rules beyond its jurisdiction and intervened in other matters. In this paper, which has been formulated through a library approach, it has been suggested that the High Council of Cyberspace, in cooperation with other authorities and organizations, should replace the enactment of necessary approvals.

According to the Maa Yodhman rule, if after concluding the contract, it becomes clear that the contract was void, each party will be required to reject the other party in return. In the meantime, the application of the rules on patent transfer contracts should be carefully scrutinized, as it would be difficult to enforce the concept of a bill on such property and it would be difficult to enforce them. Therefore, the authors were encouraged to write the forthcoming article by gathering information in a library-based manner and using a descriptive-analytic method. The findings of this study show that due to the immaterial nature of the patent, it is collected differently and through the delivery of positive documents. Therefore, the Maa Yodhman rule in case of invalidity of the patent transfer contract is fully applied and the inventor is obliged to reject the exchange and the transferee is bound to return the exchange.

Today, in light of the developments in criminal law, the mens rea has been accepted as one of the elements of crime. However, the legislator generally does not pay adequate attention to explaining the elements of the crime in the exact explanation of the mens rea, which sometimes causes conflicting views about the mens rea of crimes, and the same is true of the crime of smuggling goods and currency. Due to the legal definition of this crime and numerous examples of this crime in different laws, there has been a serious disagreement among jurists in relation with the mens rea required to commit this crime. Accordingly, some believe that this crime is intentional and some believe that it is a no mens rea offence. This article explains the reasons behind these views, and finally reasonably describes the author's view that the crime of smuggling of goods and currency is intentional. The principle of intentionality of the crimes, the principle of exceptionality of the strict liability crimes, the principle of innocence, the principle of interpretation in favor of the accused, the principle of proportionality between the crime and punishment etc. indicate that this crime is intentional, but sometimes the approach of legislative and judicial penal policy implies a kind of tolerance in obtaining intentional elements, which is rooted in the fact that smuggling of goods and currency is an economic crime.

Turkey, as an upstream state in the Tigris and Euphrates Basin, has initiated a project called Southeast Anatolia Project (GAP) since 1936. It has begun to build numerous dams and hydroelectric power plants on the Tigris and the Euphrates River since 1977. Considering that the implementation of this project has had and will have numerous environmental, social and economic impacts on the surrounding countries i.e., Iraq, Syria and Iran and according to experts, Turkey has not performed the environmental impact assessment process of this project correctly, the question is whether Turkey has a binding international obligation from the international law perspective to implement its commitment to environmental impact assessment. The results of this article show that, given to the international documents and procedures, today's commitment to conduct environmental impact assessment in projects that have the potential to create significant transboundary damage has been known as a mandatory customary commitment and it is necessary for all countries. Thus, Turkey was also obliged to carry out this task in the implementation of the Gap project, which by failing to comply, it has international responsibility.

By concluding a pre-sale contract, a part of the estates or land will be transferred to the pre-buyer for the purchased share. Pursuant to Article 1 of the Building Pre-Sale Code and other articles of this Code, the pre-sale contract, as a specific contract, along with other contracts, has the following characteristics: ownership, consent, exchange, necessary and exclusive. In Article 20 of the Building Pre-Sale Code, the legislator, while determining the competent authority for resolving disputes arising from the pre-sale contract and deeming it necessary to resolve the disputes of this contract through arbitration, also limits the authority of that authority for interpretation, interpretation and execution. The provisions of the contract have been determined. On the other hand, the same Code stipulates requirements for the parties to the contract, such as formally concluding the contract, appointing arbitrators and including the provision of Article 20 of the Code in the contract. That legislator's silence regarding the guarantee of non-compliance with the above-mentioned cases in arbitrating the subject matter of the Code has caused a dispute in the judicial procedure. Also, the lack of will of the parties in referring the principle of dispute to arbitration, raises suspicion that the true title of arbitration does not apply to the dispute resolution authority subject to Article 20 of the Code. The present article seeks to deal with the guarantee of the performance of the first forms along with justifying and explaining the nature of the dispute resolution authority of pre-sale contracts.

The repeated article 251 of the Direct Tax Act has brought a special opportunity to Iran's tax system. On the one hand, it has created an “extraordinary tax system” alongside “ordinary taxation”. On the other hand, the most important capacities of extraordinary tax proceedings are summarized in this article, which is limited to this article. Understanding the importance of this, the present paper answers the following question: What is the position of the most important advanced principles of administrative law and principles of fair administrative trial in the super-tax system of proceedings? In this regard, using a descriptive-analytical research method, the following conclusions are drawn: First, this investigation has been able to identify the principles of fair administrative litigation in the context of extraordinary tax proceedings. Second, despite identifying some of the principles of fair trial, it should be said that the fair hearing as a legal establishment cannot be extracted from repeated Article 251. Third, the present investigation was able to fill some of advanced principles of administrative law on the legal vacancies of the extraordinary tax proceeding. Fourth, it is appropriate and necessary to think of a favorable context and process for tax affairs; in this way, the possibility of "economizing" on tax matters is increased. If the principles of fair trial are imposed in the context of the mentioned article, the space will be provided to economize the extra-tax proceeding.

The requirement of contractual relations is based on the fulfillment of the obligations of each party. However, sometimes the obligor refuses to do so, on condition of anonymity. The policy of the legislator in this situation is based on maintaining the solidity of the contract, trying as much as possible to maintain the legal relationship, and it has considered several solutions to this end. Iranian religious jurists have explained in detail the title of the right to withhold performance in case law in one of the methods of obliging the obligor to coerce and Iranian civil law has stated in its provisions without specifying the title in various topics. On the other hand, the term of the right of suspension is based on the objection of non-performance in European law, and the French legislator emphasizes that the non-performance should be essential, but in Iranian law, the concept of essential non-performance is not defined. The right to withhold performance is a concept which derives particularly from Imamiah Jurisprudence and is fundamentally different from the right to suspension. The authors of this article attempt to analyze the concept of the right of suspension and objection to non-performance of obligations and to distinguish it from the right to withhold performance by an analytical-descriptive method and by using valid case law sources, legal works in Iranian law and taking into account recent reform of French law.