مجله حقوقی دادگستری
پیاپی 119 (پاییز 1401)

An approach to the concept and nature of Taxes approved by local councilsAbstractThe nature of local council Taxes is not explained in any of the relevant legal texts and regulations, despite the precedent of Approval and Received and direct connection with public rights. As a result, various inferences have been made from this concept, and many differences have been created between legislators and taxpayers, and a major capacity and power of regulatory bodies has been engaged in these matters. Also, the requirements explained in the lawsuits of the Judicial Oversight Body of the Administrative Court of Justice have not been sufficiently deterrent in reforming this process. Therefore, the nature of taxes approved by local councils, its sources and uses are questionable. we achieved at the same time or in the time frame before receiving and after receiving the taxes. And the service is the inherent basis of the nature to which the approve of taxes, sources and place of expenditure is linked, and if it does not adhere to the elements of definition, approving of taxes is fundamentally distorted.

The claim is considered against the defendant when the court can consider the judgment against the defendant, assuming that the plaintiff's claim is true. This statement is effective in a lawsuit with the same respondent and defendant. However, its effectiveness in the claim against the deceased is questionable; Because in this claim, the plaintiff's claim is against the deceased and the defendant is a person other than the deceased, ie his heir. Hence, the question is «how can we identify being the claim against the heir in such a lawsuit?» In this article, an attempt is made to provide an answer to this question by the library and field methods. In this regard, by searching the opinions of Imamiah Jurisprudents, it is observed that they have considered some conditions necessary for being the claim against the heir. In this article, while reviewing these views, which have been discussed below regarding the conditions for taking the oath to the heir, the hypothesis is strengthened and proved that the relationship between the conditions for being the claim against the heir and the conditions for taking the oath to him is general and peculiar in some respects meaning that by proving three conditions including death, remaining the estate, and the inheritance relationship between the decedent and the defendant, the claim is against the heir. In Iranian law, in addition to accepting the need to prove foregoing conditions to be the claim against the heir, inheritance certificate as a way to detect the death and the relationship of inheritance between the deceased and the defendant and the rules on acceptance and non-repudiation of inheritance as a way to detect remaining of the estate are identifiable.

Shareholders’ claims for reflective loss, also called indirect claims, are a certain type of shareholder lawsuits in corporate law. Reflective losses are those damages incurred by shareholders of a company in the form of devaluation of their shares resulting from losses sustained by the corporate entity. Whether a shareholder is allowed to seek compensation for such devaluation by bringing a direct action against the wrongdoer is the main question this paper addresses. The article attempts to answer the question in light of corporate law and civil liability principles. In doing so, reflective loss claims are analyzed after a brief review of other types of shareholders’ claims and by reference to common law and civil law jurisprudence. The article also examines feasibility of such claims under Iranian law. The article also reviews the UK Supreme Court’s decision in Sevilleja dated 15 July 2020 as the latest judicial development concerning reflective loss. The article concludes that these damages are barred under major legal systems and also under Iranian law.

Although the focus of judicial decisions is on laws and evidence, other factors also play crucial roles. Judges' gender is one such factor hypothetically influencing judicial decision-making. The present study seeks to determine whether, based on statistical and empirical evidence, a correspondence can be detected between the judges’ gender and their judicial decision-making. Using descriptive-analytical method, the present study tries, first, to achieve a coherent understanding of this issue by analyzing the researches already carried out on the judges' gender and, in the next step, to provide solutions to control –or at least minimize- the unconscious impact of gender on decision-making. The solutions presented in this research fall into two categories: personal strategies and structural strategies. In the first category, we try to provide recommendations to strengthen cognitive powers, while in the second, we will suggest ways to minimize the impact of judges' gender by structurally reforming the judiciary system.

In this article, the facilitation of causation in medical accidents has been studied comparatively in Iranian and French law with emphasis on the jurisprudence of the two countries. The purpose of this study was to show the constructive role of French judicial procedure in the evolution of the legal system of this country and to provide constructive solutions to facilitate causation in medical accidents and to use the solutions provided for the Iranian legal and judicial system. By descriptive-analytical research method and by studying the jurisprudence, it was concluded that French courts have facilitated the causal relationship by using the presumption of attribution of damages or causality, the negation of other causes, equality of causes and conditions and the theory of loss of opportunity. . The jurisprudence of our country has also used some of these solutions, although in a more limited way and mainly in the case of infected blood. However, further use of these legal solutions is necessary in our country to establish a causal relationship in various areas of medical accidents and compensation of victims. Therefore, the use of these solutions as a judicial authority is proposed to the courts.

One of the main goals of any legal system is to regulate the social life of individuals and legal persons and, at the same time, to keep pace with the ever-changing developments of modern life. The realization of such a function, which on the one hand requires stability in legal provisions and situations (as the predictability of the rights and duties of the subject of any legal system) and on the other hand, depends on keeping pace with new needs. It depends on the diversity of resources of each legal system. Examination of these sources indicates that the general legal principles have the greatest capacity to implement these two basic objectives. Indeed, if the substantive law- as from the positivist point of view - was the only source of traditional law and you alone carried out what was expected of law, the emergence of branches and tendencies The new legal system has highlighted the ambiguities, contradictions and legal gaps, and the need to pay attention to legal principles as a dynamic resource that was not subject to the stability of the legal system and even seemed to be the basis of this reliability. Therefore, the present study considers this neglected source in our country's law as a factor for the dynamics of law, while maintaining its strength and stability. In other words, cohesion and dynamics of the legal system can be realized in the approach of the theory of legal principles. The research method has been library and with the study of Iranian judicial procedure.

In intellectual property law, in some cases (especially in the digital world), ‎public and formal protections arising from the intellectual property rights are ‎not able to fully guarantee the exclusive rights of right holders. Self-help is a ‎way that is well able to cover the shortcomings of formal systems that protect ‎intellectual property and play a complementary role alongside formal ‎institutions. The legitimacy of personal actions is limited to cases where there ‎are grounds for exercising the right; therefore, any reciprocal and retaliatory ‎action is illegitimate due to the lack of grounds for exercising the right. Of ‎course, protecting the right through personal action is not immune. Lack of ‎restraint in the implementation of personal actions can make it a means for the ‎right holders to abuse their rights and endanger the public interest and peace. ‎Therefore, it is necessary for legal systems to always consider the balance ‎between the public interest and the interests of right holders and to make it a ‎tool in order to respect rights by targeting personal actions.‎

In Iran legal system, according to Article 166 of Labour act (enacted 1990), the verdicts of labour dispute resolution authorities must be implemented in the Judiciary by the Civil Judgments Enforcement Unit. Although the general process of enforcing these verdicts set out in acts, including the Civil Judgments Enforcement Act (enacted 1977) and the Enforcement of Financial Sentences Act (enacted 2015), but the implementation of the verdicts of these authorities is sometimes accompanied with ambiguities and challenges; So that workers face difficulties in achieving their rights. The present article examines these ambiguities and challenges on the basis of descriptive and analytical method. Its findings indicate the ambiguities in the process of implementing the most important rulings of labor dispute resolution authorities, including rulings on financial condemnations (including labors' premiums and their salaries and benefits) and verdicts on non-financial condemnations (including verdict to return to work) has led to the emergence of various procedures in the enforcement units of civil judgments of the judiciary. In addition, the implementation of these verdicts in practice is associated with several challenges, some of which are: Ambiguity in verdicts, the employer's financial inability (whether insolvency or bankruptcy), the employer's refusal to implement the verdict and the Social Security Organization's refusal to implement the verdicts on premium.

Criminologists have long used every opportunity to warn criminal policymakers about the adverse health, criminological, moral and social consequences of incarceration. In our country, however, considering the abovementioned costs and adverse effects, decarceration has been given priority, especially for minor crimes and criminals without a criminal record; but its implementation in practice faces several judicial and operational challenges. In this paper, the judicial and operational challenges of decarceration are examined in the light of court rulings, using an analytical-descriptive method.The obtained findings indicate that the most important identified challenges are frequency of criminal cases, sustainable incarceration oriented culture among judges, lack of proper infrastructure, unprepared accepting bodies and the society incarceration-centered public culture, respectively. Some of the proposed solutions to cope with the current situation are: changing the culture of incarceration among judges by providing proportionate execution guarantee; increasing the supreme judicial authority’s attention to the equipment needed to implement this policy in such a way that the statistics oriented procedure of the judiciary do not distort the decarceration policy; monitoring the performance of judges in terms of adherence to macro-judicial policies in the field of community-based punishments; real and continuous monitoring of how to file Personality Record; improving the level of knowledge of judges by holding continuous training courses; upgrading the level of hardware and software facilities for applying non-custodial sentences and increasing the awareness of relevant institutions, regarding their rights and duties and reforming the culture of public punishment.

It is obvious that a large part of the quality of a judicial system depends on the quality of the decisions that judges make. Even judges with high experience and knowledge may make some mistakes, but it is expected that judges do not make systematic mistakes. However, based on the results of studies in behavioral economics, it can be said that in different parts of judicial decision-making, including the discovery of case events, assignment of criminal responsibility, and primarily sentencing criminals, some factors affect judges decisions that normatively logically should not be important. Behavioral economics is a branch of economics that tries to make economic assumptions more realistic by using sciences such as psychology and sociology. So describing judicial decisions by using cognitive biases make it closer to the field of criminal sociology and judicial psychology.Recognizing that factors beyond legal issues can influence judicial decisions and judges' behaviors provides the basis for interdisciplinary approaches to explaining judicial decisions and judges behavior. This descriptive-analytical article seeks to explain the above factors and identify possible solutions to improve judicial decisions and increase judicial justice. The proposed solutions can be summarized in the form of in-service training of judges and a more appropriate architecture of decision-making structures.

The development of electronic technology has led to the growth of economic and social relations in the context of electronic exchanges.Along with these Developments, the issue of ownership and validation of electronic documents and evidence has become more complex; therefore, it may not be possible to update the rules in each case of the Advent of a technology. Therefore, standardization for the attribution and accuracy of electronic evidence can provide the flexibility to update it. This issue needs to be met to assess the validity of electronic evidence. In Iranian law, the e-commerce law and the cybercrime law sporadically refer to some of these criteria, which include secure methods and safe methods as part of them. But what has been neglected is two issues: the separation of the authenticity of the document by the judiciary as a general procedure for proving security and authentication by an IT specialist as specialized procedures. It is noteworthy Assessing specialized procedures of proof by methods of assessing the method can be a step to improve the knowledge of the judge by the judicial authority by training and qualifying. With the research that was done, the use of the Lorraine standard and the examples of Article 901 of the Federal Evidence Law for the validity of general methods of proof and the use of the Daubert standard and the examples of Article 902 of the said law for measuring expert and self-help methods are introduced. On the other hand, due to the lack of separation of general and specific criteria in the Iranian Electronic Commerce Law, the defect of paragraph 2 of Article 2 governing paragraph 4 of paragraph H of the said Article and the need to separate it as an innovative research achievement to advance the knowledge of the judge is effective.

Differential proceeding has different aspects and objectives. Despite completing the general rules of criminal procedure and eliminating the insufficiencies ,this model of criminal procedure may have some other objectives such as orbital security, increased punishment in some special cases, the consideration of legal persons , the protection of human personality in criminal process and effective confrontation with new forms and methods of committing crime.The subject of this study is to analyze the necessities and principles in this field and to present specific criteria for investigating legal person’s crimes in accordance with analytical-descriptive. Some of the necessities of this differentiation include the guarantee of rights of the parties of the case, the consideration of changes in committing crime practices ,the prediction of appropriate tools for the criminal process, the structural differences of a legal person compared to an natural person , and the principle of equal weapons. considering the innocence principle and exceptional acceptance of the criminal responsibility of legal persons forms the important legislative basis for regulation in this type of procedure. A correct insight from criminal justice practitioners and other active practitioners of these principles plays an effective role in the interpretation of law, fair trial achievement and the protection of the rights of individuals and society. The temporal and spatial unity of crime, a commonality in the charge between the legal representatives and the legal person and the similarity between the reference and the judicial authority are the common rules of this kind of proceeding. However, predicting the explanation of charges, particular criminal guarantee votes, derivative and exceptional criminal responsibility for legal persons, a different punishment regimen and the right to protest and an independent defense against judicial decisions and opinions are considered as specific rules of a legal person’s proceedings.

Taxation of the right to assign the place is one of the tax law issues that has been less studied about its legal aspects. The existing legal definition of the “right to assign the place and its instances" is faced with the two problems "ambiguity and imperfection" and therefore, in this article, an attempt has been made to provide a comprehensive definition of these examples.Also by following the sources of tax law, five conditions were extracted for the "realization of the transfer of the right to assignment", which must be met in order to include this type of tax.Regarding the "method of transfer of the right to assignment", this is not limited to transfer through official documents and the transfer is also realized with ordinary documents. Also, in order to determine the "time of taxation", the "agreement of the parties to transfer the right" should be considered as a criterion, and in "determining the taxable income", the "customary price of the right to assign the place" is generally used as a criterion for tax officials; A method that is not only a cause of financial indiscipline, but can also be criminal and corrupting, so alternative solutions have been proposed in this case.The method used in this research is descriptive-analytical and attention to the latest "tax regulations" in addition to the votes issued by the "supreme tax council", "general assembly, specialized committees and branches of the court of administrative justice" has been considered in this study.

One of the necessities of the rule of law at the level of political institutions is to provide enforcement guarantees for violations of laws by political authorities. The Iranian constitution has tried to meet the aforementioned necessity by providing various mechanisms for the responsibility of the president. Despite the possibility of the president being tried before the Supreme Court for violating his legal duties under Article 110 (10) of the Constitution, Iran's constitutional system is both doctrinaire and procedurally poor. Accordingly, the present study uses descriptive-analytical method and through historical legal genealogy, paying attention to the approaches of comparative constitutional law, identifying the existing challenges and providing solutions to resolve them, looks for to strengthen the teachings of Iranian constitutional law about the responsibility of the President before the Supreme Court and to provide the basis for establishing and strengthening procedures in this regard. This study seeks to answer the following questions: In the current legal system, what are the ambiguities and challenges of identifying and applying jurisdiction of the Supreme? And whether the jurisdiction has legal and political justification and desirability? Research findings show that not enough laws have been passed to implement this responsibility, the generality of the constitutional provision on the violation of the president, ambiguity in the competence of the Supreme Court and the General Courts of Justice in exercising this responsibility and the abandonment of the implementation of the first part of the aforesaid paragraph in the Constitution are among the notable challenges in this regard. Amending the constitution and adjusting the president's responsibility to the Supreme Court and passing the necessary laws to put in place it should be considered as a solution by the Iranian Legal system policymakers.

It is commonly assumed that the costs of litigation are provided by the parties. However, the increase in litigation costs, the need to manage the risk of litigation along with profit minded have led to the emergence and prevalence of investment in litigation. Under a process called "litigation financing," a third party pays costs to receive a profit in the event of a successful litigation, without relinquishing the right or transferring the litigation. Despite the advantages of this method, concerns have been raised about its adverse consequences on litigation. This article, through an analytical study of the nature and effects of litigation financing, seeks to answer the question of whether the nature of this legal entity is valid or not. And how can we take advantage of it and reduce its negative consequences? What can be accepted is that the financing of litigation is valid and its use will bring benefits to the Iranian legal system, but in order to manage it properly, it is necessary for the legislator to use the experiences of other systems before the popularization of this legal institution. The article brings main issues that should be considered in legal regulating of litigation financing.