مجله تحقیقات حقوقی
پیاپی 97 (بهار 1401)

In the Islamic view, the public rights of the people are of particular importance. In the position of conflict between the right of God and the right of the people, he considers the right of the people before the right of God In addition, harm to the general public guarantees and compensates. Whether this damage is caused directly or indirectly. Instead of advising solidarity and intimacy, the culture of urbanization and living in an apartment has the convergence and separation to avoid conflicts of interest, and in explaining the damage to neighbors in the neighborhood, minor and insignificant examples. It has been noticed and more important issues and losses have been neglected. Keeping animals in the apartment causes the spread of viruses whose damage is not limited to the apartment where they live, and most of the neighbors may be affected. The present article tries to examine the jurisprudential-legal guarantees of animal owners in the apartment space by resorting to constitutional laws, the bill of the Environment Organization and the plan of the members of the parliament regarding the subject and rules of jurisprudence of La zarar and Tasbib, and make suggestions for correcting and supplementing the relevant laws and regulations.

“Foundationalism” is the dominant approach in the epistemology of “Uṣūl al-fiqh” in which absolute authoritativeness of certainty belief (Qat’) is highly famous. According to Shiite epistemological thought, non-authoritativeness of conjecture (Zann) is perceived as a primary axiom and doubtlessly concluded that the “Theory of Insidad” is invalid and ineffective. However, in a state of certainty inadequacy, authoritativeness of conjecture is the secondary principle and the following acts based on conjecture would be considered rational. Therefore, arguments and justifications are necessary for refuting the analogy (Qiyas) and dedicating the authoritativeness to tradition (Zann al-khabari). Finally, the conflict between “Akhbarism” and “Insidadism”, led to “Loss of Certainty and Availability of Certainty-bearing” (Insidad bab al-'ilm, Infitah bab al-'ilmi) and the implications of Insidad have been entirely neglected. Theory of Insidad can validate rational conjecture as a reason to prove or defeat and based on this theory, the fiqhī rule cannot simply attribute to God; So Insidad is capable of establishing a rational and secular system. From this epistemic point of view that decreases inefficiency and incoherence, fiqhī rules become more compatible with modern law and the secularization of legislation and judgment in the legal system would be facilitated. This study seeks to examine Shiite epistemological thought and explain the abandoned theory of Insidad, along with its implication for the legal system in a religious society.

The purpose of arbitration is to resolve a dispute and this brings the arbitration closer to the judiciary, then it creates the impression that the arbitrator must also be subject to the same conditions as are necessary for the judge. These are qualities that are essential to a judge but are optional for the arbitration body, that is, arbitrator or arbitrators appointed by the parties to the dispute. Even if, this feature does not conflict with the “judgmental" feature of arbitration, and the requisiteness of having the character of a judge by the arbitrator, was not called into question, at the very least, it casts doubt on the necessity of the arbitrator's independence and impartiality. Because, generally, the parties to the dispute select persons for arbitration that are somehow related to them. This is more evident in three-person judgments. Because in this type of arbitration, essentially, the parties to the dispute have the full discretion to choose their own arbitrator, and usually, they look for a judgment that has the most affinity, relevance, and affiliation with them. This article by separating the concepts of independence and impartiality will review and analyze the prevailing approach in international arbitration.

Different communities with various methods of control of terrorist crimes seek to reduce the rates of crimes in order to provide security and maintain sovereignty. However, the growing of terrorist crimes and the inefficiency of the criminal justice system of different countries in this field indicates that it must be used to face this phenomenon. One of the most important preventive mechanisms in the field of terrorist crimes is social prevention, which is critical to various tools in the effort to prevent entry into terrorist activities or taking out people from the crime cycle, however, the way to implement these mechanisms is critical because these long - term measures should eventually lead to loss of crime or sustainable reduction. The prevailing belief in the perpetrators of terrorist crimes is that a terrorist is always terrorists, and for this reason, the only way to eliminate them from the cycle of crime is physical punishment such as execution or permanent imprisonment. However, the findings of cognitive studies show that the probability of success of social prevention programs on individuals is exposed to the risk of delinquency or stopping the delinquency among terrorist groups.

In commutative contracts, the actual exchange of two considerations is basic to contract and compulsory delivery of subject matter of contract and compulsory performance of obligations arising therefrom is also among the rules of the synallagmatic contracts for mutual exchange. Also, any negligence in the performance of the contractual obligation or the supervening impossibility of performance subsequent to the formation affects the status of the contract. In the case where an external factor renders the performance of one of two reciprocal obligations impossible, if such impossibility is permanent, the contract becomes dissolved and if it is of a temporary nature, it shall give the obligee the right to rescind the contract known as the option of the impossibility of delivery. However, in case the obligee does not wish to terminate the contract the question is that is he entitled to withhold performance of his own obligation and to bring the performance of the contract into suspension? Iranian Civil Code has not expressly mentioned this rule, but such a right can be deduced from a number of statutes as well as the general principles of commutative contracts. Furthermore, in the course of suspension, the obligee is not liable for the non-performance or delay in performance of the obligation. Suspension of the performance of the contract is similar to right of lien in some respects. Our aim in this article is to review the right of suspension of the contract and then to substantiate the existence of this right under Iranian Law.
 

It is not mentioned to the necessity of “inducement” between “non-disclosure and representation of circumstances” and concluding the contract in Insurance Law of Iran and Marine Insurance Law of England. If the insured had the right to contract voidance merely because of non-disclosure and representation of circumstances, the economic result of this would be so heavy.  In this article, the legal provisions of Iran and England are analyzed. One approach to adjustment of the heavy remedy of non-disclosure and representation of circumstances is the necessity of inducement between non-disclosure and representation of circumstances and concluding the contract that the insurer after proving the materiality of circumstances according to the “objective test” must prove according to the “subjective test” because of non-disclosure and representation of circumstances has concluded the contract.

Ministry of Petroleum of Iran predicted a competent Iranian partner for cooperating with the International Oil Company (IOC) in Article 4 of the Council of Ministers Resolution. The reasons stated as empowerment of Iranian companies for executing local mega projects, regional and international markets presence, and upgrading national technology in the petroleum upstream industry. In this regard and based on the procedure of qualification method of exploration, development and production companies of petroleum fields, seventeen Iranian companies were qualified as Exploration & Production (E&P) companies. Now that IOCs have left the Iranian petroleum market, are there still legal restrictions on the use of other contractual models for Iranian oil companies? The purpose of this study is to investigate the possibility of using Concession contracts by an E&P company. The research method is descriptive and analytical. Governing laws of Iran are reviewed in this study. Since Iran’s government makes the final decision on the conduct of oil operations, it cannot be described as the domination of oil resources, and therefore does not seriously contradict the Articles 43 and 153 of Iran’s Constitution. Furthermore, E&P companies will not be subject to Article 81 of the Constitution. In Article 6 of the Oil Law, the only restriction on the inflow of foreign capital in the upstream industry of Iran has been observed, which again does not apply to E&P companies. Finally, the results show that there are no major legal barriers to applying Concession agreement in case that the operator is an Iranian E&P company.

Economic corruption and governance approach is a matter that is overlooked within the Iranian academic literature. Though the grand/Systemic corruption is more correlated with the field of political economy. However, since the political structure of a state by which the Governance is formed and executed has a direct and dramatic impact on the formation and expansion of corruption, it should also be examined from this standpoint. The political structure of a state should be designed in a way that prevents the possibility of corruption and thus the role of public law here is substantial. It should define what characteristics should not exist in order to eliminate corruption to happen. This article is aiming at exploring and elaborating on the elements of public law in explaining the causes of economic corruption in a political system with reference to Iran.

In human societies, power has always been used in the service of the government and in its protection and establishment. Therefore, governments can use different sciences in this regard with the support of systematic authorities to enjoy the various theories resulting from years of study in justifying the pressure they are putting on different social strata. With such an approach, criminology, which can be used with the idea of elevating human society by removing the limitations of grammatical formalizations and ordered criminalization, with different reading and in obedience to the government, depending on socio-political conditions as a tool for a suppressor to use control or guidance of any opposition movement. The position of criminal science, especially criminology, causes the establishment of criminal justice to become the executive framework of criminological theories and the commitment of the operating institutions and the independence of these institutions. In this regard, governmental criminology is established, which foundations are not based on considering the humankind, his needs and eliminating his shortcomings, even with the occurrence of crime, but it is based on an institution in the service of power to establish and maintain sovereignty. As political crime is defined in direct opposition to the type of power and government, or a religion-motivated crime is manifested in countries formed with governments based on religion.

The relationship of law and biotechnology becomes clear if we know how to find solutions to the challenges of biotechnology. Given the various legislative approaches at the national level and the existence of international treaty law gaps, the adoption of a human rights-based approach in regulating the application of biotechnology is of particular importance. Using comparative analytical methods, this study seeks to address the challenges of biotechnology applications from a right to health perspective. The question is to what extent biotechnology applications contribute to the realization of the right to health and whether the protection of the right to health has the capacity to provide a favorable normative model in response to the challenges of biotechnology. Among the applications of this technology are fundamental, normative and structural challenges. The research hypothesis suggests that reinforcing the right to health protection mechanisms at the national and international levels could provide a suitable model for uniform regulation in response to biotech challenges related to human health.

There is a rapid increase observed in the number of marriages between different nationalities. The validity of marriage either celebrated in the domiciliary state or abroad, between persons of different nationalities, must comply with certain formalities in order to ensure the legalization of marriage. The legal validity of international marriage in most national laws is subject to certain meritorious and formal conditions. The scope of these conditions varies considerably from one national law to another. Therefore, essential conditions of dual domicile of each party tend towards the invalidity of the marriage, because the domiciliary laws differ regarding the validity of a marriage. According to the general rule of private international law, it is firmly established in most national laws that the formal validity of marriage is governed by the law of the place of celebration (lex loci celebrationis). Although there is no exception to this proposition, due to differences in the national laws, some propositions are considered where the marriage is considered valid when is in conformity with the law of nationalities of the parties, like marriage in the Consular Office. Non-compliance with these forms according to the law of the place of celebration has its own consequences.

Both public procurement and competition law represent two of the basic components of market regulation and affect highly on the efficiency and development of economics. Economics has always played a more significant role in competition law while public procurement regulations and practices are a source of market failure. By their inflexible price policies, they generate a big negative impact on market dynamics and impose an efficiency loss on society. The government as the main buyer can cause monopsony and their action in the market can detract from perfect competition. The public procurement regulation may remove a number of suppliers from public market. Whilst government may benefit in the short term from cost-saving and low prices, by these reductions of opportunities and imposing prices on suppliers, the long term effects can be destructive and worse market conditions for fringe buyers—both in terms of reduced variety and (in the long run) in higher prices. In order to justify the view that public procurement is a source of potential distortion in market competition, this research has criticized the monopsony of government and its effects on suppliers and other smaller buyers.

The "Joint Criminal Enterprise"(JCE) doctrine is a special form of liability that innovates in the International Criminal Court for the Former Yugoslavia (ICTY). According to this form of liability, all the members of a criminal group that try to reach a criminal enterprise, have the same liability as to the accomplice. However, the JCE has faced different legal dilemmas since its introduction in the ICTY Judgments both in respect of actus reus and mens rea of the persons who are found liable based on JCE. How a court can convict a person who doesn’t commit the actus reus of a crime like a perpetrator and more important how it can convict a person who has no actus reus and mens rea related to committed crime, at all. This paper will scrutinize these issues and if this kind of liability recognizes in Iranian criminal law. Finally, this paper concludes that this form of liability has no conflict with criminal law principles and Iranian criminal law recognizes JCE in some crimes such as Baghy.

Healthcare services form the part of the public health system in each country. These services must be accessible, available and economically affordable. Moreover, the protection, promotion and extension of health care are subjected to constructive prerequisites of health such as education, house, food and employment. In international law, states are obliged to use their maximum available resources for the purpose of developing health care services and providing all necessary coverage for all their people.  Ratification and execution of the “Evolution Scheme of Health System” in Iran is a step toward universal health coverage and the realization of the highest attainable standard of health. The main question of the present article is: what legal obligations have been provided in international law in the promotion and development of health care; and what is the “Evolution Scheme of Health System” ’s role in achieving to international health standards.

Statutory laws need to be revised and amended based on cultural requirements and social consequences and feedback in order to prevent the increase of inefficient laws, reduce the great number of various cases and improve and optimize the efficiency of the judiciary. The existence of an exclusive legislative assembly consisting of professionals and elites can facilitate reaching qualified results. The other amendatory priorities in selecting the most qualified judges and improving the judiciary could be including the “wisdom age” and prior legal experience of judiciary position candidates, revising the laws regarding the personality selection of prime candidates, and enacting up-to-date laws based on Islamic teachings. It is worth mentioning that the less qualified judges may make use of some modern tools improperly to compensate for their inferiorities, which is of no benefit as their legal actions lack scientific background. Therefore, the result would be inauthentic and spurious actions leading to the degradation of judicial decisions. Having been said, considering the fundamental role of judges in ongoing cases in the judiciary, this article is an attempt to investigate the significance of revising the employment and selection rules, and the necessity of improving the quality of legislation.

The CAS which was established by the International Olympic Committee with the idea of becoming the “Hague Court for Sport” in 1984, is now around 600 cases per year. As its founders had intended, CAS has gone through the path of becoming a global institution, the judgments of which the international community of sport can rely on. The structure and rules of proceedings of the CAS has been amended several times during the past 4 decades of its existence, nonetheless, issues related to the principle of fair trial, including compulsory jurisdiction of the CAS, holding proceedings in public and most importantly independence and impartiality has always been amongst the challenges confronted by the CAS. By briefly addressing the basis of the need to apply the procedural safeguards by the Court of Arbitration for Sports in its proceedings, this essay analyzes the extent to which these safeguards are applied by the Court and concludes that there exists serious shortcomings with regards to the application of these rights by the Court.