مجله حقوقی دادگستری
پیاپی 117 (بهار 1401)

The modern legal system in Iran has always been influenced by the textualism movement and legal formalism. The interactive resultant of these two currents has led to a kind of legal positivism in the Iranian judicial system, according which judges must present their judgment with formal judicial logic and within the framework of legal textualism. These assumptions lead us to the main question of this article, which is the nature of legal textualism and legal formalism and how they affect the rule of legal positivism in the Iranian judiciary System. In this article, we will first use a descriptive method to discuss the concept of legal textualism and legal formalism and legal positivism in order to be able to analyze the rule of paradigm based on these concepts on the Iranian judicial system and its consequences. The findings of this study will reveal that the rigid approach to law and the method of judicial inference is not always in line with legal ideals and justice. The other findings of this study will reveal interactive resultant of the textualism movement and legal formalism in the Iranian judicial system is the rule of kind legal positivism, which has confused the ontological, epistemological and anthropological foundations of legal systems based on the principles of modernity with the Islamic legal system in several principles of the constitution and ordinary laws.

The sexual abuse of the wife by the husband is not explicitly recognized in the Iranian legal system. However, in light of some of the provisions in the family law, one can find the grounds to consider this issue. Due to the legislator's silence in defining conjugal obedience, separating general and specific obedience and determining the limits and scope of each, identification and recognition of the sexual rights of couples in family lawsuits face challenges. This study answers the questions that, given the sexual abuse by the husband, what legislative mechanism is provided to support the wife in the Iranian legal system and how family court judges interpret these laws. This paper, using a qualitative approach and case study methodology, after reviewing jurisprudential texts and reviewing legal laws investigates the judicial procedure of family courts in Tehran province in issuing rulings requiring obedience or judicial divorce due to sexual harassment of the wife by analyzing the content of cases, interviewing judges and women applicants of divorce. Findings show that judges’ interpretations of the instances of sexual misconduct are varied and verification of the wife's sexual hardship, in addition to the difficulty of proof, lacks clear criteria and is based on judges' personal interpretations of the scope of conjugal obedience. Therefore, there seems to be a need to include the conventional sexual rights of couples in the family laws and establish a unified procedure in issuing a sentence of non-obligation to obey and verification of the wife's hardship in cases of sexual abuse by the husband.

The addition of the clause of "by oath of defendant" in Article 197 C.P.C. (Approved in 1379) raised questions, doubts, and discussions about the possibility or impossibility of issuing a sentence of acquittance of defendant without his oath, in cases of failure to provide evidence and not requesting the oath by the claimant, as well as the power or omission of the judge to swear defendant without asking. The analysis of this article requires the study of the subject in jurisprudence and the study of the viewpoint of the jurists. In jurisprudence, the issuance of verdict in favor of the defendant was not permitted solely on the basis of practical principles, including the principle of innocence, in cases of failure to provide evidence or requesting the oath by the claimant, and also the swearing of the defendant without the applicant's request. In the analysis of Article 197 C.P.C. it is necessary to provide an interpretation that does not contradict this article with jurisprudence and what is known as certain among the jurists.

The International Criminal Court is unable to prosecute all international crimes that fall within its jurisdiction. The situation selection falls within the Prosecutor’s discretion that is done by conducting a preliminary examination. In this filtering process, three factors are taken into account, namely jurisdiction, admissibility and the interests of justice. Nevertheless, the Prosecutor prefers to extend its discretion behind the preliminary examination stage. Accordingly, the Prosecutor selects a situation not only to initiate an investigation upon conducing a preliminary examination but also to open a preliminary examination in itself. This article argues that the Prosecutor’s discretion to open a preliminary examination is limited to consider the jurisdiction requirement in a narrow manner, namely to exclude those crimes that are manifestly outside of the Court’s jurisdiction. Due to the role of preliminary examinations in combating the culture of impunity, the Prosecutor shall not adopt a conservative approach to open a preliminary examination.

Nowadays, right to water, increasingly has recognized in international documents as one of the human rights that is inextricably linked to other instances of human rights, such as the right to life, the right to health, and the right to adequate standard of the living. Recognizing this right in human rights discourse, on the one hand, obliges States not to interfere in the free access of human beings to water, and on the other hand, it rests the responsibility of providing the arrangements of water supply and access to this vital substance for them. Although the main commitment of fulfilling the obligations of the right to water is the executive bodies of a country, but the legislative and judicial institutions also have responsibilities for the full realization of this right. The question that this study has been written in order to answer it, is: what role does the judiciary of the Islamic Republic of Iran play in ensuring the right of Iranian citizens to water? The result of descriptive-analytical studies in this paper, which is obtained using library studies and review of international documents and domestic laws, is that judiciary with the main task of establishing rights and justice and reviving public rights, can guarantee the right to water in three general areas: prevention, monitoring and litigation. However, the lack of explicit recognition of the right to water in domestic law is the most important shortcoming, which has largely limited the scope of action of this body to guarantee of right to water

Compatibility the rules governing a joint stock company and a medical company is not easy; can’t be accepted all the rules of a closely held corporation as the best tool of modern capitalism to performance medical profession. There is concerns about for the compliance of the rules of such a company in all stages of the company's existence, which is the formation, life and end and in relation to all the characteristics of medicine, including non-commercialism, independence and special scientific competence and the result that's mean, the patient's conscious trust. Nevertheless, fortunately optimal compatibility is possible in the light of proper benefit of rules of companies of persons and results of comparative law. Patient trust is gift of physician's duty to perform exclusively and effectively in the company and unlimited liability of partner and company. Physician independence is enhanced by apply restrictions in attracting a partner, acceptance of the rule "Each partner, one vote" and the right to withdraw the partner. Manage all partners, prohibit the manager from interfering in the profession and strengthen the majorities improves the situation. Equality of different bringers it leads to the denial of business in medicine: an approach that is reinforced by the limitation of attracting external capital an approach that is reinforced by the limitation of attracting external capital. In terms of vital services, the subject of the company's activity which is achieved thanks to the special scientific competence of physicians requires that causes of invalidity and dissolution are reduced and remove the regressive effect. However, medical the possibility of life in "Small shell of a special joint stock company" Finds and it benefits from its advantages, especially the Independent legal personality.

Understanding the principle of proportionality in data and system seizures depends on a correct understanding of the nature of data and systems. Data is used as information or any symbol that can be stored, transmitted and processed through computer systems and a system for data-related actions and capabilities. The connection between the two forms the computer platform and the sphere of information and communication technology, and the principle of proportionality should be interpreted according to this feature. The principle of proportionality in data seizure means balancing the four elements of the need for seizure, the importance of the data and the system, the relationship of the data or system to the crime, and the relationship of the data or system to the data and other systems. The present article, using library resources and judicial decisions, has tried to show in a descriptive and analytical way that the appropriateness of confiscating data and systems is comparable to confiscating the platform of activity and not confiscating property or documents and has reached this conclusion. The appropriateness of confiscating data and computer systems relies In addition to relying on approaches based on the requirements of traditional space, such as the application of precautionary measures to respect the rights of society and the victim and the requirements of cyberspace Like understanding the place of computer exchange space in today's activities, she has also paid attention to protecting the rights of the accused.

The Influence of criminal and legal on Verdict each other is one of important subjects of legal and penal cases. Upon view of some judges and doctrine of the legal court is bound to follow the final vote of the penal court and in case of simultaneous proceedings , the legal court is bound to cease the proceedings. If each of the legal and penal judicial court proceeding vote , upon the case, without consideration to the other court's votes , its vote is effective in the related case, there are adverse effects such as contradictory and unenforceable effects and accurate study of the judiciary proceeding in this regard is effective in representing of favorable solution. This article, while studying and consideration to the judiciary procedure has being become a position of dependency rule the legal court from penal definite vote in Legal law of Iran and a legal base of the mentioned rule such as validity rule of a competed affair and communication of the vote of the penal court with public discipline and dimensions, limit of rule and its judicial documentaries was investigated and finally the indicator judiciary proceeding and presentation of a base of an accurate law has been represented according to the judiciary rules.

Social behavior as a subject of law is one of the most important issues that has been affected by the emergence of new technologies. In recent years, legal technologies (LegalTech) have been tried to increase public access to justice. These technologies affect three categories of judicial proceedings, private legal services, and government regulatory actions. Develope LegalTechs, like any other legal phenomenon, requires programing in the direction and in accordance with the principles of the legal system. Inattention to the relevance of legal systems governing and the LegalTechs that used in judicial proceedings, causes similar experience for LegalTechs, like imported technologies that not only did not facilitate and strengthen the quality of previous practices, but worse and irreparable problems. Have also been accompanied. In this article , we have tried to achieve the requirements of the legal system of the Islamic Republic of Iran on the judicial proceedings' LegalTechs by examining the principles of fair trial by analytical-descriptive method.

Sentencing studies indicate that female offenders typically receive less severe punishments than males and that the criminal justice system treats women more leniently than men. The current study, through theories such as paternalism (and its more recent versions) and evil woman theory, seeks to answer how gender as an extralegal factor affects the process of sentencing in drug offences and whether there is a difference in the effectiveness of theories depending on the social structure of the two societies, Iran and the United States.In this study, qualitative research methods have been used. The content of documents, including cases of drug offences conviction (60 samples) between 2010 and 2020, and criminal justice officials’ discourse have been analyzed. In-depth interviews with judicial activists and drug lawyers (24 cases) were also used to understand the factors that encourage judges to impose lenient or severe punishments on women.The findings of this study show that paternalistic attitudes toward women in Iranian society, Childcare, the social costs of punishing mothers, and the subordination of the partner are the main factors that reduce the likelihood of conviction of harsh sentences, such as the death penalty for women in Iran. On the other hand, criminal records in drug offences, high quantity of drugs, or illegal relationships are factors that lead to violations of gender norms and deprivation of women of leniency approach in the criminal justice system about drug offences.

Most legal systems to protect the property of a bankrupt merchant and creditors provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. Analysis of the legal and economic logic governing the invalidity of such transactions shows that in the Iranian legal system there are shortcomings such as no time limit regarding the length of twilight periods, the scope of avoidable transactions, the provision of remedies and the necessary conditions for the avoidance of perfectly valid transactions. Regarding the above shortcomings, it was suggested that a specific length of twilight periods (6 months to 2 years, as the case may be) be provided in the law And the criterion for insolvency should be permanent and incurable cessation, not the oldest cessation. from the date of cessation of the company The principle is the correctness of transactions and the invalidity is considered an exceptional matter, Use the Unenforceability (Inopposabilité) guarantee instead of the nullity guarantee And the effect of some requirements such as good / bad faith of persons in the invalidity of transactions due to its negative economic effects should be limited to specific cases.

These works have a completely different nature from traditional and modern paintings due to the lack of special rules, lack of uniform style, contradiction and foundation-breaking, and as a result individualization; To date, no specific criteria for valuing these works have been mentioned. These works may be brought by a commercial company, or may be mortgaged, or in some cases may lead to civil liability. The research of this article shows the following results by descriptive and qualitative research method The psychological hermeneutic method can provide the necessary aesthetic interpretation for the judicial procedure by providing comprehensive and barrier criteria and then adapting this aesthetic to the cost valuation method with the re-costing approach can lead to the theory of the forensic expert that procedural justice and robustness. Guarantee judicial rulings. The psychological hermeneutic method can provide the necessary aesthetic interpretation for the judicial procedure by providing comprehensive and barrier criteria and then adapting this aesthetic to the cost valuation method with the re-costing approach can lead to the theory of the forensic expert that procedural justice and robustness. Guarantee judicial rulings.

When concluding an insurance contract, the insured has more information comparing to the insurer. At the other side the insurer takes the risks by relying on the materials represented by the insured. Because of this lack of balance in information, it is not enough in insurance contracts that the parties not having bad faith. This specific feature is the reason to create an important duty in insurance contracts which is named “the duty of representation”. The remedy for breach of the duty of representation in Iran Insurance Law is that when the breach of the duty is unintentional the other party has the right to rescind the contract and when the breach is intentional the contract is void. The England law through case law and recently by acting England Insurance Law 2015 is intended to adjust the remedy and limit the avoidance cases; but Iran Insurance Law acted 1316 without considering the developments of insurance industry during the century, is not trying to adjust or limit the rescission and avoidance cases. In this article some approaches are suggested to the legislator and case law to limit the rescission and avoidance cases cause of breach of the duty of representation.

Well-known Imami jurists believe that insanity after crime committing does not prevent the execution of punishment. Although this opinion has been questioned by some jurists and also the Iranian legislature has provided conditions for the possibility of executing this punishment in its criminal law, but it seems that by carefully documenting the validity of this issue, more restrictions can be placed on the execution of insane punishment. This research has reached the conclusion by descriptive and analytical method and by examining the authenticity and signification of the relevant narrations that the narration indicating the punishment of the insane does not apply in terms of the type of crime committed and the time of proof of the crime, i.e. the time of correctness or insanity and the method of proof, And its inclusion in the commission of any crime and also the presumption of proving the crime at the time of insanity and in any way is questionable. And it seems that what can be used from the evidence is the permission to perform the whipping punishment, which has been proven by the person's confession at the time of his health; This is more compatible with the defendant's defense rights and with the rule of Caution in bleeding.

The assignment of national lands is provided in Iranian law in two definitive and temporary forms. The land is temporarily assigned in the form of a contract between the Ministry of Agriculture and eligible applicants. The contract has a definite form approved by the Cabinet of Ministers. Contracts are made in the form of a lease contract and in accordance with specific procedures such as formality and compliance with a specific form. The parties to the contract are the agricultural director of the province as a representative of the Ministry of Agriculture and, on the other hand, applicants with special general conditions and legal priorities. In addition to paying a fare, the tenant must execute a draft plan on rental land. In addition to land delivery, the landlord should provide the tenant with the conditions for issuing the document. Violation of the tenant will be result in the termination of the rental agreement. In the event of a landlord's violation, the tenant will first demand the coercive and terminate the contract in case of compulsory issuance. Objections to decides of the supervisory board and third party claims of land assigned are the most significant disputes arising from the implementation of the contracts.

Despite the widespread use of negotiable instruments in ordinary and commercial transactions, legal literature has less noted to the issue of validity and consequences of the transfer of negotiable instruments after maturity. In this paper, in addition to a comparative study of the various approaches in regulations, it also has been examined and criticized the existing legal theories in regard. These theories sometimes forbid the transfer the document after maturity whether it has been done by endorsement or delivery. It has sometimes been considered as an ordinary (noncommercial) transfer. Finally, one tries to say that this transfer just has some of the effects of the transfer of such instruments. Based on commercial customs, lack of any prohibition in regulation, existence of some indication on regulation, this essay shows that in Iranian legal system citation to the weakness and instability of the instrument and thus the holder's reliance on the transferor's credit is not compatible with ordinary willingness of parties to instrument. Apart from this reason, such deduction denies the most of the features of a protested negotiable instrument in favor of its new holder.