نشریه تمدن حقوقی
پیاپی 8 (بهار و تابستان 1400)

The expansion and development of cyberspace, like other human achievements, in addition to it’s undeniable benefits, has created challenges and disadvantages, including the launch of Roman games in gambling and online betting in this space. Gambling is one of the most destructive and ruinous games, which unfortunately the corruption is being covered as a deceptive intellectual sport. In this writing, with the descriptive-analytical method and the use of library resources, the jurisprudential aspects and theories of criminology and the preventive measure of this phenomenon are examined. The results of this study show that Iranian law is as reliable as the articles (705 to 711 of the Islamic Penal Code (Punishment) approved in 1996) that may be available on the Internet, and therefore it’s openness between betting and gambling, the materials available on Betting is not reliable. Article 2 Law on Intensification of Bribery, Embezzlement and Fraud approved in 1988 of governs it. It should also be kept in mind that criminalization is not the only solution, however he should act like a physician, and a competent physician, to figure out the tendency of young people to gamble and seek preventive measures; because prevention is better than cure.

One of the jurisdictions of the International Court of Justice is to give advisory opinions on any legal question at the request of the General Assembly, the Security Council, or any other entity qualified under the provisions of Article 96 of the UN Charter. Since nearly eight decades of operation, this institution has given 27 advisory opinions; a petty number, bearing in mind the concurrent evolution and development of international law and institutions. These decisions, though not having a binding nature, their review and analysis can greatly help to clarify and enlighten the minds of the lawyers. The advisory opinion of the ICJ on the legal consequences of the separation of the Chagos archipelago from Mauritius in 1965 is the newest of these few advisory opinions, which by the way has provisions against the apparent interests of two permanent members of the Security Council (the UK and the US). This article through a descriptive-analytical method and in qualitative research nature, is trying to review and analyse this decision of the court. In the end, it has been concluded that this advisory opinion, though not binding, has shortcomings especially for not paying enough consideration to the consensual nature of the policies carried on by the UK in Mauritius, and the agreement concluded between representatives of the colony of Mauritius and the United Kingdom. However, such an advisory opinion per se indicates the fair mechanism governing the UN and its organs in observing the interests of the weak nations and developing countries.

Depositing a property as collateral of the belonging to debtor in order to guarantee the creditor’s claim has been formed from the very beginning of the establishment on the basis of regulating the economic and social relations of individuals in society. Accordingly, in financial obligations, various types of securities have been established. However, security contracts with the same basic basis gradually prevailed, and taking into consideration the requirements of modern business, legislators adopted different procedures regarding security and it’s instances based on some laws, regulations, and instructions. However, all the different stances of the legislature have always been accompanied by a basis for securing and reassuring the guarantors and facilitating the granting of credits to the production units which deposit collaterals. In the legal systems of many countries such as Iran and the United Kingdom, security contracts are recognized to secure financial obligations; Collaterals that gives the creditor the right of precedence and prosecution in order to enforce an objective right over the pledger's assets. In this study, we seek to answer the question that, considering the differences and commonalities in Iranian and British law, how the legal nature of the institution of collateral is included in the framework of legal arrangements. In this regard, it seems necessary to recognize the legal establishment of "collateral" as a new face of collateral contracts, regardless of the difficulties of civil collaterals. By accepting the mentioned theory, the provisions of civil pledging contracts are applicable in cases of silence insofar as they do not contradict the basic elements of commercial collateral accepted by special laws.

One of the solutions used to deal with the financial crisis in the international arena is the integration of commercial companies and is one of the effective legal institutions to coordinate companies with the competitive environment, economic and commercial activity, to increase their economic power and competitiveness. Is. The merger of commercial companies by increasing their power, the risk of creating a monopoly in the market in order to reduce the power of other actors in the field of merger companies also has consequences, so it has a dual function and impact on the market. The effect of the merger on the law of the European countries is more for the merging company than the merging company and this effect can be more negative than positive because it confronts the shareholders and persons affiliated with the merging company with a new challenge that can deprive them of their rights. Or deprive them of their rights. The effect of the merger on the rights of shareholders, whether a minority or a majority of the companies involved in the merger, and the creditors and non-shareholder debtors, is a significant one. In Iranian law, merger companies can be considered as a way to avoid financial problems, increase revenue, reduce costs and also as one of the most important ways of investing. There are also many goals and benefits in merging companies. Of course, there are drawbacks, the most important of which are monopolization and monopolizing the market. In this article, the effects of mergers of commercial companies are examined.

International law is a mirror image of current international rules in the international community with a humanistic approach and the ideal of international behavior. In this course of action, the divine religions, beyond their religious framework, have necessary theories in various fields of human life. For example, the religion of Islam, which itself has a special emphasis on Islamic international law and not only considers the international law of Islam as a chain of communication of all basic principles in international law, but also puts ethics and moralization of legal principles based on ideal justice from A global perspective is the basis of your work. In this regard, the school of Islam considers jurisprudence, justice and morality as the most fundamental principles of the framework and considers its dissemination due to the presence of religious schools as a necessity and emphasizes its universality. The purpose of this study is to investigate the basis of the stable link between ethics and justice in the legal world through the special view of Islam. Let's pay attention to the proper position of ethics and justice.

Sexual violence against women has a deep and historical context; this violence stems from thoughts about the plurality of women and their reduction to the physical body. For decades, people have abused the conflict of sexual violence as a war tactic in order to intimidate, terrorize, and control the civilian population during domestic and international armed conflicts. Inadequate services for sexual assault, survivors during war time formal disregard for the harm inflicted on women and girls, and a lack of commitment to prosecuting sex offenders have made this fact more complicated. Despite the heinous nature of sexual crimes, these behaviors were a common and unavoidable consequence of hostilities, and therefore perpetrators were not prosecuted. Following the armed conflicts in the former Yugoslavia and Rwanda and all kinds of sexual violence against women and girls during these conflicts, the international community came up with an innovative way to prosecute sex offenders. Although since the early 1990s, international criminal courts have ruled more explicitly in these areas and prosecuted criminals, unfortunately, there are still many legal and administrative gaps in this matter. The present study responded to how to prevent such acts of violence and concluded the ICC Statute is the first legal instrument to include crimes of sexual violence against women; however, it’s applicability and implementation faced numerous legal and practical gaps and challenges.

Human life has experienced many crises throughout history, many of which are due to the actions that humans perform in their environment. Every action has a reaction. The reflection of these actions from the environment also goes back to human. Existence of Covid-19 disease worldwide and emergency by the World Health Organization; It put the world in a crisis and It shows that human activities in the environment can have very dangerous consequences, including the loss of the human life right. Solidarity rights, which derive from the third generation of human rights, show that some rights should not be looked at alone but collectively. This pandemic provides an opportunity to consider the relationship between human rights and environmental laws. According to studies, a close and dependent relationship has been observed in both rights and Looking at both rights at the same time can also reinforce the effects of sustainable development and prevent an epidemic and better control if it happens.

A review or investigation is a method in the light of which it is possible to review judicial judgments and make justice possible. The principle of permission to appeal in the legal systems of Iran and France is based on the fact that the initial verdict may not be correct for any reason, including the mistake of the judge of the first instance, and was issued against the right. Therefore, the convicted person should be given the right and opportunity to challenge the verdict and request that it be reconsidered by another competent judicial authority. This has been taken by the legislature to achieve justice and accuracy in the proceedings, so that the appeal or inquiry is a review of the decision of the court of first instance and in a way this method of appealing the decision imposes restrictions on the court of appeal and the litigants. Since appeals or researches in Iranian and French law have important effects and aspects and each of them is effective in better advancing justice, so in this article we will examine these cases.

One of the most important economic phenomena of the present century is foreign investment, and since it has been considered as one of the main methods of obtaining capital, technology and the possibility of continued economic growth in countries. On the other hand, foreign investment is considered as the main way to access advanced technology for developing countries and both directly and indirectly increase domestic production and is the main key to economic development of any country. Also, the most important role of foreign investment is to bring capital, skills and technology to countries. Despite the significant dimensions of foreign investment in other countries and the adoption of the Law on Encouragement and Support of Foreign Investment in 2001 and it’s executive regulations adopted in 2002, Iran has faced serious challenges due to the lack of a coherent and dynamic legal system along with other factors. So that not only the shortcomings of foreign investment have not been eliminated, but even legal shortcomings have prevented the realization of an efficient legal system governing foreign investment, which is examined in this article.

The purpose of this article is to examine the condition of the absolute guarantee of the tenant in maintaining the same tenant in Imami jurisprudence and civil law of Iran, which has been analyzed in a library method. The condition of tenant guarantee is a common point in rental contracts today, which has been discussed and studied in depth in jurisprudential texts. Article 493 of the Civil Code "The tenant is not a guarantor of the same tenant, which means that he will not be liable if the same tenant is lost in whole or in part without his misappropriation or abuse." This article, in fact, states the non-guarantee of the tenant in case of non-encroachment or misconduct of the tenant and does not make any reference to the status of the lease and the condition of the time condition by the landlord and the tenant in the lease contract. It should be said that the Iranian civil law has been silent in this regard, but in jurisprudential books this issue has usually discussed in detail, now an important question is facing us, and if the lease stipulates in any case If damage is caused to the same tenant, the tenant will be responsible for paying the damages. Such a condition is valid or doomed to invalidity in terms of jurisprudence and civil law of Iran. A group of jurists believe in the invalidity of such a condition with their arguments, and another group of jurists believe in it’s validity by mentioning some reasons. However, in this article, we have examined the views of the opponents and those who agree with the inclusion of the guarantee condition in the lease contract.

International Criminal Law (ICL), in order to meet the multidimensional requirements of international community, plays different roles and has contributed to the consolidation and improvement of international legal order. This article, which is conducted through a descriptive-analytic method and by means of a library-based approach in collecting data, aims at reviewing the most significant roles and achievements of ICL in international legal order. Doing so, as the first role, it deals with adding and fixing the notion of international criminal justice to international legal order through the establishment of international criminal tribunals and specifically International Criminal Court (ICC) and the institution of individual criminal responsibility. Thereafter, systemizing and reinforcing the rules of international legal order through codification and progressive development of international law and revitalization of general principles of law as the fundamental but forgotten source of international law that implies the domination of natural rights school’s view regarding the sources of law is taken into account as the second role of ICL. Afterwards, the interesting subject of preservation of fundamental values and interests of international community as the mandate and raison d’être of ICL would be discussed. It appears that ICL is both a sign of evolutionary development and a factor in dynamism and sustainability of international law. Furthermore, it seems that emergence and development of ICL should be regarded as a sign in the gradual formation and relative consistency of international community and transition from international society.

Corruption at the highest levels of society, the most important of which is embezzlement, has spread with the development of societies and is hurting people and governments. Such phenomena are important in Iran, because it is an Islamic State, and these acts endanger the freedom, political development and legalism, and ultimately the legitimacy of the system. Despite the intensification of the punishment for the perpetrators of the crime of embezzlement, its perpetration continues on a large scale. In this study, we examine the objective effects of the crime of embezzlement in the law of Iran and the United Kingdom by looking at international documents. In Iranian law, the betrayal of government officials and employees concerning the property entrusted to them on the occasion of duty is considered as embezzlement and the perpetrator deserves a “ta'zir” punishment. Even the taking of property of non-governmental joint-stock companies, parties, unions, private banks, and cooperatives by their employees for their own benefit or the benefit of others can be subject to the crime of embezzlement under certain conditions. Under English law, the crime of embezzlement is a form of theft, if a property is first deposited and seized by people who are considered trustworthy, such as employees, and then those people change it in their favor or ownership. “Stolen”, which is a kind of emphasis on the crime of embezzlement. The international community is also working to combat this crime at the international level. Hence the ratification of UN conventions, including Merida, the American Anti-Corruption Convention, and the African Anti-Corruption Protocol. These conventions, through a comprehensive definition of embezzlement, and the expansion of the scope of perpetrators and properties subjected to this crime, seek to effectively combat this crime by anticipating the criminalization of preliminary acts and the concealment and maintenance of the embezzled property, and the adoption of mechanisms for international cooperation.

Good Faith that is interpreted as the principle of good faith and fair play in law works, expresses a kind of honesty and ethics in legal relations and the necessity of its compliance in the contracts is known as an important principle in achieving various aims in considering how to prepare and set the terms of contracts, establishing the equilibrium and balance in conducts of the parties to a contract, concluding and interpreting the contracts and so on; it has therefore gained a special status in the law of contracts, as well as  the international agreements so that the article 1104 of France new civil code has realized this general principle of good faith. Accordingly, the purpose of this research is to study the status of good faith obligation from the perspective of its various aspects (concept, nature, territory, and warranty of performances) in Iranian and French law. Finally, by studying these cases we will find that in the Iranian legal system something as good faith is not usable as a standalone theory, and the practical criterion in this regard is the authority of the kind emergence (Reliable Emergence Theory).  For the basis of good faith in Iranian law, the requirements of contracts have to be addressed, since the requirement of contract is an agreement as well as interaction. In agreement, the parties try to reach a common goal, and in interaction, they effort to achieve that common goal. So the principle of good faith must prevail throughout the lifespan of a contract.

Forgiveness is a moral principle that, like other moral rules, has permeated legal institutions. Accordingly, the “Arfaqi contract” is one of the most important institutions of commercial law in the matter of bankruptcy law, which is concluded between the debtor trader and the creditors. The subject of this contract was legally raised for the first time in Iranian law with the enactment of the Trade Law of 1311, which was in fact adapted from the 19th century French Trade Law. The mechanism of this contract can play an effective role in the prosperity of society's economy because society needs commercial and productive activities to meet the material needs of its people, and therefore the liquidation and dissolution of economic organizations can sometimes have adverse effects on society's economy at the macro level.  In the case of bankruptcy, the government's economic policies must be designed to effectively support businesses or key economic entities. “Arfaqi contract” is a conciliatory solution that prevents the commercial and economic death of the businessman, and saves him from extinction. This method of protection is for commercial law, and if the bankruptcy operation does not end in this way, there is no choice but to sell and divide the property of the bankrupt businessman, which is a general rule. Therefore, this contract is concluded and implemented between the debtor and the creditors with the aim of solving the problems of the trader, and continuing his activity and preserving all the rights of the creditors.

One of the most important financial rights of a wife is alimony, which, unlike other financial rights, also applies during married life. In Iranian law, the couple is responsible for financing living expenses, which is expressed in the form of alimony, and due to the concept of alimony and the emergence of new needs, the need to examine the relationship between the two is felt more than each other. Changing the lifestyle of women and the family, the emergence of new costs and the growth of legal awareness in the family are issues that show the importance of the alimony debate. From the perspective of Iranian jurisprudence and law, alimony is a financial right for women and obligated persons who, if they have this right, must be entitled to it, so that alimony in the field of financial relations both during marriage and after dissolution. It is used in all stages of life. Under French law, a spouse is responsible for protecting the wife for life, and alimony is an obligation under which one person who has the means is obliged to provide for another person. In this country, the duty of assistance and the obligation to participate in the expenses of marriage form the basis of the alimony relationship between the couple. Since the needs of women today have changed compared to the past, it is necessary for the legislator to amend the laws of the past in accordance with the new needs of the sections of society or.

Non-influence is a situation in which a legal act has no full legal effect until it is enforced in some legal acts due to non-compliance with the legal requirements for validity. Invalidity is a situation in which a legal act, having this status in the world of law, is considered extinct and lacks legal existence and effect. According to Article 190 of the Civil Code, the absence of consent can be proposed as the main basis for non-influence in contracts, and in principle, any contract between the parties is valid and requires the parties to implement its provisions; if the contract is invalid for any other reason, it may be revoked or ineffective. Relative invalidity is also one of the guarantees of breaches of contract rules, which is a well-known legal entity in French law. Whereas in Iranian law, what is called relative invalidity is a kind of inability to rely on a contract, and this is important to protect certain persons (third parties), and to eliminate losses and repel it from these persons who enter into a contract in good faith. Given that part of the Iranian law is adapted from the French Civil Code in the General Rules of Contracts, some consider non-influence to be equivalent to a guarantee of relative invalidity in French law while examining the status of relative invalidity in French law shows that relative nullity is not the same as non-influence and the two guarantees of execution are completely different because in an impenetrable contract, the pre-null contract has no effect, while in relative nullity, the pre-null contract has legal effects and in French law in addition to relative invalidity, non-influence is also accepted, which indicates the difference between these two performance guarantees. The relative invalidity accepted in French law has a few instances in Iranian law as well, which are exceptionally included under some articles of commercial law.

Criminalization is one of the important tools and mechanisms of the criminal policy of any country in the fight against crime. Criminalization is a very delicate and precise act in society, which if not done based on a reasonable policy, not only will not achieve the desired result but will also impose huge costs on society. Creating behavioral restrictions through the process of criminalization is contrary to the principles of freedom and permission and authorization; therefore only in important and necessary cases it is required, and when criminalizing a behavior will become necessary that such behavior represents a serious social threat that actually or potentially is detrimental to others and can no longer be dealt with by other social or legal means. If the quality and manner of the criminalization process and the creation of prohibitions are not subject to a reasonable policy, it can itself become an important factor in the development and increase of delinquency and the escape of criminals from punishment. The results of this study indicate that in the Iranian penal system, the most important personal, social and judicial harms of criminalization include impunity for criminals, the institutionalization of revenge and violence in society, declining ugliness of crime and increasing insecurity in society, violation of the constitution, violation of human dignity, criminalization of the penal system, forgetting the role of non-judicial institutions, increasing the costs of criminal proceedings, and so on. The type of the present study is applied in terms of its objectives, and in terms of nature, it is using descriptive-analytical method benefiting from library and documentary sources.