مجله حقوقی دادگستری
پیاپی 118 (تابستان 1401)

Due to the need to pay attention to dejudicialization and decarceration strategies, the repentance can be an effective tool to reduce the criminal population of prisoners. In 1392, the legislator for the first time made a general rule regarding the effectiveness of repentance in ta'zirat. Considering the legal changes and the approval of Article 115 of the Islamic Penal Code, it is important to address the realm of repentance in time and the periods in which this institution can be used. In this article, with a descriptive and analytical method and with a critical approach to uniform judicial precedent vote No. 813 of supreme court, regarding the time of acceptance of repentance, this claim is proved that based on jurisprudential and legal principles, not only before proving the crime, in all ta'zir crimes, the repentance of the accused will result in the cancelation of the punishment, but also after proving the crime and even at the time of Execution of punishment, this institution can be used.

Fundamental human rights have traditionally been discussed in public law and can be applied to state-citizen relations (vertical relations). However, its application in the relationship between citizens (horizontal relationship) is undeniable. In this article, we first describe the principles and methods of exercising fundamental rights in contractual relations between individuals. These foundations are based on the theory of state action, fundamentalism, and public policy. We will then see how the social principle at the source of rights such as freedom of education, strike, access to information, freedom of employment and freedom of religion, which are necessary for social life in a democratic society, should not be violated in contract law. The main question is how social dignity as a principle is respected and respected in contract law. In case of violation of the principle, what effect does it have on the validity of the contract? This article answers this question with analytical and library methods and relying on the analysis of different opinions of the courts of some legal systems of European countries, it can be said, in Iranian law, the rights arising from the principle of the above are general civil rights that cannot be revoked by contract, even in part. Violation of these rights will invalidate all or part of the contract.

Judges have both considerable power and discretion in exercising it. Given the power and discretion, the personality of the judge is essential. Especially in hard cases, the "who is the judge" is no less important than the "what is the law". If the law is in the hands of a virtuous judge, it is more likely that his judicial power and discretion will lead to justice and fairness. Therefore the virtue approach to judicial judgment is important. The most important judicial virtues are: lawfulness, legal intelligence, judicial wisdom, courage, temperance, impartiality, independence, incorruptibility, judicial skill, justice, and compassion. An essential advantage of the virtue approach to judicial judgment is that it is compatible with the Islamic jurisprudential tradition. Thus, a rich dialogue can be established between modern virtue theory and the Islamic jurisprudential tradition. In the present article, while outlining the theoretical foundations, the application of the virtue approach in "judicial selection" is examined.

As any other legal discipline, conflict of laws follows a predetermined methodology. Two diverging methodologies have been applied in two sides of Atlantic. European countries follow a two-steps method, according to which the interested parties know or can find out ex ante the law applicable to their regal relation. Au contraire, the fashionable American method of governmental interest analysis does not let the parties know the applicable law unless a dispute is brought before the court in this regard. Iranian legislator since the first days of legislation followed the European a priori style. Nevertheless, the 2020 Draft Commercial Code includes an a posteriori provision on lex contractus. This abrupt paradigm shift would entail some problems not only for the contracting parties and judges, but also in connection with conflict of laws methodology itself. This paper takes archive research method in illustrating competing legal systems’ approaches. Then I focus on Draft Commercial Code with a future studies approach to evaluate the paradigm shift and probable problems caused by this Draft.

According to the Commercial Code, a bankrupt merchant is exempt from paying late payment compensation after stopping. Disagreement over whether the guarantor of the bankrupt merchant follows the merchant regarding the compensation for late payment compensation has caused the General Assembly of the Supreme Court to issue a unanimous decision No. 788 dated 2020/06/16in which, in authors opinion, Civil opinion overcomes the issue of dispute and the special conditions of the Commercial Code and the comprehensive provisions that apply to bankruptcy are abandoned and regardless of the circumstances of bankruptcy according to the rule of guarantor liability compliance with the main debt in civil law, The guarantor is also exempt from paying the compensation for the delay. The question that comes to mind is whether in all cases the amount of liability of the guarantor is a function of the amount of liability of the subject and follows it? In this article, through descriptive-analytical research method, the commercial law and the different view governing trade relations in different fields were considered and led us to believe that, basically, except in special cases, purely civil views and provisions of the civil law should not be used in interpreting commercial regulations and the theory of commercial regulation independence should have been protected to meet the commercial needs of society. This independence has been violated in the unanimous vote of the mentioned procedure and has caused confusion of the provisions of commercial law and civil law. Inevitably, like the vote of unity of procedure 811, which was held to explicit the vote 733; By issuing a new unification procedure, or explicitly amending articles such as Article 405 or Article 421 of the Commercial code, the guarantor shall retain responsible for paying the late payment compensation despite the bankruptcy and exemption of the trader.

The method of determining punishment for perpetrator of various crimes has always been the subject of theoretical discussions and legislative developments. In the latest developments resulting from The Law on Reducing the Imprisonment, passed on May 12, 2020, the Iranian legislatore has issued different rules on distinguishing between "different" crimes and non-different crimes in the case of material multiplicity of crimes, but refuses to set criteria for separating these two categories of crimes. This has led to a divergence of views and procedures in this regard. In this article, four criteria for identifying different crimes have been explained and criticized by descriptive-analytical method. Unification of criminal title, unification of legal element, unification of constituent elements of crime, unification of constituent elements and punishment. Finally, according to the advantages and disadvantages of each of these interpretations, the criterion of unification of the constituent elements and punishment in order to comply with the principles of criminal law and narrow interpretation of criminal texts, more than other interpretations, is considered a legislator and as an autonomous view, has been introduced.

The main issue of the court is the realization of the right, not the termination of the case. Therefore, the judge must use all kinds of arguments and ways to discover the truth. This requires judicial ijtihad, which is different from jurisprudential ijtihad. It depends on whether the judge can look for evidence to find out the truth, and whether the search for evidence has a place in judicial ijtihad. In this article, we have examined this issue based on the paradigm of judicial ijtihad. The method is descriptive-analytical and in the field of jurisprudential and legal ideas and thougths. For this discussion, first the validity of the knowledge of the judge in jurisprudence and law has been discussed and then the position and role of studying evidence in the knowledge of the judge from the perspective of jurisprudence and law has been examined. The result is the permission and obligation of the judge to study the evidence based on the paradigm of judicial ijtihad, which requires a change in the way judges are educated and the use of new methods of experimental sciences in detecting crime and achieving reality.

One of the most important aspects of consumer protection that has received little attention is the facilitation of consumer litigation. Costs of Litigation are one of the major barriers to consumer litigation. In Iranian law, the lack of special assistance for consumers and the limitations of the general rules of insolvency and the limited financial resources of consumer protection organizations, in practice have created obstacles for consumers to sue. In different legal systems, different mechanisms are considered in order to remove this obstacle. legal expenses insurances can be considered as one of the tools that are effective in removing this obstacle and facilitating consumer litigation by covering cost of litigation and have been considered in most legal systems. The present study in a descriptive-analytical method and through collecting data with library method, while studying these insurances in some pioneering legal systems in this field, have studied these insurances in order to facilitate consumer lawsuits. The experience of the studied legal systems confirms that these insurances, along with other assistance tools, are a good solution to facilitate consumer litigation. In the Iranian legal system, despite the predicting of these insurances in the bylaws of mandatory advocacy, with the issuance of Unanimous decision of the Supreme Court, there are currently no special provisions in this regard. However, considering the acceptance of the insurance contract and the principle of freedom of contracts, these insurances are also defensible in Iranian law and while having a deterrent effect on the inflicting of loss to consumer, can have some deterrent effect on litigation costs. Therefore, it is necessary to revive the provisions of the recent regulations and legal protections for these insurances in order to use its positive functions.

The system of land property is a pluralistic system that is uniquely organized in each society based on the legal basis and necessity of that society. This pluralism can also be found to a large extent in land registration systems and the substantive effect of registration on the contractual transfer of immovable property. In such a way that some systems concentrate on creation effect of registration and others on opposability. The question, however, remains whether these different effects are due to the pluralism of the land property systems.On the other hand, Developments in the Iranian land registration system after 2016, which took place with the presentation of the Guardian Council's advisory opinion and the adoption of the Permanent Development Provisions Act, raised the question of the status of registration formalism in the contractual land transfer in Iran.In this study, based on the library studies and refer to legal documents method of collecting information and descriptive-analytical research method, with a comparative study of the three systems of England, Switzerland and France -as three model systems in the field of land property and registration– We concluded that the diversity of land registration systems is directly due to the diversity of countries' land property systems. In this regard, based on the two descriptions of absoluteness or exclusiveness, land property systems are divided into Property systems and Estate systems. In Property systems such as France, the land registration has an opposablility effect; While in Estate systems such as the England and Switzerland, registration has a creative effect.Accordingly, and within the framework of the ownership structure that has been established in the Iranian Land and Deeds Registration Act of 1931, land registration is still a title by registration system and developments after 2016 have only targeted the need to prepare notarial documents.

Applying the “rule of sharia” over laws and regulations is one of the most important issues of the Islamic Republic of Iran legal system. The implementation of this rule, which is mainly addressed in Article 4 of the law, has created variable legal and judicial effects on the legal system. In other words, announcing the inconsistency or non-inconsistency of the approvals or laws and regulations that have been absorbed by the jurists of the Guardian Council in various forms on the legal and judicial system.Therefore, the manner of announcing the opinion of respected jurists is important. This has created the ground for the realization of Article 4 of the Constitution and the Islamism of laws and regulations in the legal system, or on the other hand, has created the legal system with ambiguity, conflict, and legal creation. Therefore, in this article entitled "Legal effects of the supervision of the jurists of the Guardian Council by announcing and general laws and regulations in the judiciary of Iran" an attempt has been made to make extraordinary works that have emerged as a result of the comprehensive or complete announcement of the jurists of the Guardian Council That is analyzed.Therefore, first, with a descriptive method, the types of objections raised by the jurists of the Guardian Council have been counted, and as an example, the objection of "application or general laws and regulations" has been mentioned, and finally, with an analytical method of works It can be examined and summarized to show its impact on the country's judicial system, in such a way that in order to achieve the purpose of Article 4, the opinions of the jurists of the Guardian Council in the cases subject to this article must be documented and reasoned, and concise opinions must be avoided.

Penal trial is a process which starts from crime detection and ends in a criminal conviction. In this regard, the stages of prosecution and investigation has special importance in criminal hearing. The close relationship and, in some cases, the conjunction of some detective and prosecuting procedures with each other and their belonging to a prior stage of trial would in effect made their absolute separation and thus their complete independence so severe. Meanwhile discovering of the accused’s real conduct is the cornerstone of justice in respect to the other stages of judicial proceeding and hence the independence of the interrogator could be resulted in a fair trial. Comparatively studying of the independence of Interrogatory institution from that of Prosecution in both Iran and Lebanon, we may find that the principle of their independence has been recognized, though in Iran the Interrogatory authority which is placed amid the structure of Public prosecutor’s office and under the administration of the Attorney General has defected such independence that in several cases obliges the Interrogator to administratively serve under the attorney general’s authority. However, both-mentioned institutions are separated and independent in Lebanon and although the Interrogator has to acquire the Attorney General’s opinion in the process of investigation, but the ultimate decision would be independently issued by him and in case of conflict in their views the dispute would be referred to a distinct authority which may be called “Accusation Bureau” and as such the principle of independence is better guaranteed in Lebanese legal system.

There is no clear solution, in civil justice system and judicial procedure of Iran, how to resolve the dispute among courts regarding to the recognition of full connection among related actions. The question is that which judicial authority should recognize the full connection? And in the event of a dispute on the recognition of the full connection between the two courts, whether in same jurisdiction or in two different jurisdictions or different degrees, how to resolve it? In the current legal order, is there a judicial authority to resolve the dispute? The necessity of answering this question is important because lack of clear and precise rules in this matter causes delays in judicial proceedings, conflicting verdicts, inadequate judgments, and a loss of public confidence in the judiciary. In this article, in a descriptive-analytical manner and with library resources, in addition to analyzing ambiguous cases, suggestions and solutions to silent cases under internal regulations, judicial procedure and comparative law are presented. The result shows that according to the current legal order, despite recognizing the full connection by one branch of the court and sending case to another branch of that court, this branch of the court has obligation to hear related actions for preventing the cessation of the judicial proceedings. However, it is contrary to the principle of judicial independence and imposing the substantive opinion of one branch of the court on another branch of that court. Therefore, it is suggested that in future amendments to Civil Procedure Law, disputes among courts in recognizing full connection in two courts with same jurisdiction, the head of the jurisdiction is in charge and if two courts are in two different jurisdictions or being between supreme court and civil court, the dispute resolution shall be conducted under rules settlement of jurisdictional disputes.

With the enactment of the Islamic Penal Code (May 1, 2013), a number of community-based punishments entered the Iranian legal literature under the title of alternatives to imprisonment. In this regard, the study of possible challenges in the application of new criminal institutions is one of the important topics in criminal science, which will indicate the effectiveness of these institutions The authors of the article by focusing on the experience of key actors in issuing and enforcing community service orders, have attempted to identify such challenges at the judicial level through (first) a focus group was formed with the presence of 12 judges and (in the next step) interviews with 13 judges who have had experience in this area. The data gathered from the focus group and interviews indicate multiples judicial challenges in application of community service orders, which can be following into two main categories: "current and continuing punishment criteria inconsistent with the nature of community-based punishments (imprisonment- orientation and statistic-orientation)" and "lack of attention to enforcement infrastructures of community-based punishments. Based on the collected data and by analyzing the above findings, it can be argued that the existence of such challenges has been a subordinate of the wrong approach of criminal policymakers in relation to community-based punishments. This means that the legislature has been enacting policies on community service orders merely for reducing the prison population; And so, have been abandoned the preconditions for the main purpose of this punishment, which is the rehabilitation / reintegration of the convicts.

In United Nations Convention Against Corruption and other international conventions and National law having a wealth without justification by public officials it has been introduced as one of the examples of corruption. Wealth without justification or disproportionate is said to be disproportionate to the legal and recognized income of the public officials. One of the main reasons of anticipation of such a regulations in international conventions and domestic Law is the complexity of the proving of crimes related to corruption and the help of the prosecution to exempt them from the proving of crimes so as to justify the legitimacy of the property on the public officials. The penal reaction to such wealth varies in different countries. Some emphasised the wealth and the attempt to confiscate assets that are unjustified and some have emphasised the types of sanctions such as fines, imprisonment and confiscation. According to relevant laws and regulations, it can now be said that iran's law lacks a penal response to the unjustified wealth of public officials and the article 49 of Constitutional law and Article 2 of the punishment of perpetrators of bribe and embezzlement and fraud cannot be used in this regard.

Creation of Exceptional Courts for Proceedings Industrial Property Law Claims and Complaints has some advantages and in contrast some disadvantages. Unjustifiable high costs, grounding for abuse and misconduct, undermining the generalism view point of judges, difficulty of public access to these courts and debilitating the independence of the court are the most important disadvantages that have been raised for exceptional courts in industrial property cases. In contrast creating and maintaining a specific integrated and coherent procedure in doctrine and judicial procedure, promoting and improving the status of protection of industrial property rights, improving and accelerating the process of reviewing and issuing awards in this area, reducing costs related to litigation in judicial authorities, The dynamics of judiciary system of a country in the field of scientific and practical developments in industrial property and improving the protection of business are the most important benefits of this type of courts. This article has been written based on descriptive and analytic method for study of assessment and feasibility of desirability of industrial property exceptional courts with attention to aforementioned advantages and disadvantages. The results of this study show that exceptional courts in each of its forms are not efficient for all countries and in countries such as Iran, due to the status of industrial property, the numbers of related claims and complaints and the structure and organization of courts and method of their proceeding aren’t justifiable. At present, in Iranian law, the model adopted in Articles 8 and 9 of the Commercial Procedure Bill in relation to the establishment of commercial courts in all provincial capitals (Article 8), which some of them are dedicated to intellectual property (Article 9), subject to expansion the jurisdiction of these courts to industrial property crimes is a desirable model.

Capacity is the competence of individual statuses as natural persons and also juridical persons who are entitled to exercise rights and obligations. The concept of capacity has been accepted by most of the legal systems. Based on their capacity, individuals are aware of their potential rights and obligations.The purpose of such regulations is to regulate the trading system in the general sense from birth (or formation) to the time of death (or dissolution). In this research, a comparative study between Iranian and French laws has been carried out by library and descriptive-analytical methods.First, the concepts and principles related to the capacity of natural persons are mentioned. Then, this subject is examined in the field of commercial law.The main question in this research is whether the rules related to the capacity of individuals in the field of business are similar to those of civil law or each field is governed by a distinct system. The other question in this research is whether the incapacitated persons have the opportunity to do business or not. Besides, whether or not the natural and legal guardians are capable to conduct businesses as the legal representatives of the mentioned individuals. This research is based on the assumption that the regulations of civil and commercial capacity are similar to each other. However, there are some dissimilarities which need to be assessed.Despite advocates beliefs, critics assume that, even in the case of permission of guardians, incapacitated adults are not able to carry out business activities. Meanwhile, the legal or natural guardians are not capable to conduct businesses as the legal representatives in this case.