مجله حقوقی دادگستری
پیاپی 120 (زمستان 1401)

In Iranian criminal law, in addition to criminalizing insults to persons, which are interpreted as simple insults In Iranian criminal law, in addition to criminalizing insults to persons, which are interpreted as simple insults and have a private and forgivable aspect, there are several instances of insults with a general description of aggravated criminal insults. While they have more severe punishments, their most important and common feature is that they have a public and unforgivable aspect, and because of this feature, regardless of the real victim's complaint, the public prosecutor, assuming he is aware of the crime or report It is obliged to prosecute the offender and bring him to justice. In Article 11 of the Law on Reduction of Imprisonment, approved in 1399, one of the cases of aggravated insult, i.e. insulting officials and employees while serving, is excluded from the category of unforgivable crimes and the general aspect of this crime has been removed. This legal change and the subsequent judicial procedure, from the perspective of structural coordination and efficiency of criminal policy regarding the crime of insulting the authorities, have created questions and challenges that have been addressed in this study through analytical and interpretive methods. In this study, by examining the challenges arising from the deprivation of the public aspect of the crime of insulting the authorities, it is proposed to amend the law or provide a favorable judicial interpretation to resolve the problems.

Being the litigant of the insurer together with the responsible of the accident is legally and economically justifiable for the injured party, but explaining the responsibility of multiple defendants to pay a single debt is one of the problems of the judge in issuing a verdict; In such a way that in some cases the subject of litigation to one of the defendants is silenced or the litigation is completely rejected. The purpose of this study is to explain the position of the insurer and the person who caused the accident in the lawsuit with descriptive and analytical methods, in addition to recognizing the need to decide on each of them, to explain their responsibility in the sentence and to provide logical theories for compensation. The inference of the independent or collective liability of the insured and the insurer is based on various reasons. Sharing liability between the insured and the insurer has no logical or legal basis, and the liability of the insurer's collateral does not serve the purpose of better compensating the injured party. Court waiting for invoking the injured party to the insurance contract also does not solve the problem of explaining the liability of multiple defendants, and differences in the type and amount of liability remain. Recognition of joint and several liability of the insured and the insurer in the Compulsory Insurance Law adopted in 2016 is compatible with the aim of better guaranteeing the injured party, and some law bases and legal justifications justify the need for the theory of joint and several liability of the insurer and person who caused the accident.

Detention of a convicted person in a civil case is considered as exceptional subject. In Iranian legal system it is applied as the last resort for a situation where the convict is not willing to execute the convictions in any way and no property is found from him. The jurists - and following them Iranian legal system - have always been cautious in this regard and the legislator is under different assumptions such as filing a petition for insolvency or finding property of the convict, denies her detention. In this paper, we examine the conditions and challenges to the detention of a convicted person in civil matters and we will discuss the legal and practical problems of the issue. Rare cases in which the possibility of detaining a convicted person is not explicitly stated by law, including arbitral awards, foreign awards, restoration of executive operations and the impossibility of enforcing an objective awards, are examined in this article, relying on judicial procedure and practical problems.

The municipality, as a prominent item of the public law legal person, sometimes on one hand violated the provisions of urban planning by granting licenses, has caused high buildings and stabilization of air pollution. On the other hand, as one of the institutions that is obliged to prevent air pollution, with Failure to perform its legal duties will cause and intensify air pollution. Air pollution is one of the main causes of physical injuries (crimes(. The position of the municipality as a responsible and punishable perpetrator of air pollution crimes depends on establishing a longitudinal link between the conduct of the crime, criminal liability, and ultimately suffer the criminal sanction. The municipality, both as a representative and as an activity, shows its behavior in its act and omission form in the perpetration and causation figure in creating air pollution and for this reason, there is no difference between the behavior of a municipality as a legal entity and the behavior of a natural person.However, knowing the municipality as a criminal responsible has two conditions: First, establishing a citation relationship between crime and air pol

Driverless cars have made the jump from fantasy to the physical realm and their use is increasing. In their most advanced form, a driving system is replaced with a human driver which takes controle of the vehicle when driving. Regardless of the conventional issues of civil liability, what draws attention in the first place is the mechanism of compensation for accidents caused by these driverless vehicles. Therefore, the main question that we seek to answer in this article is whether the compensation system for traffic accidents that currently prevails in Iran can be responsible for the widespread use of these vehicles assuming that liability of insurers as social cooperation one? Relying on the descriptive-analytical method of research and use of library resources, this article has reached the conclusion that the compensation system outlined in the Compulsory Insurance Law of 2016 which is based on social cooperation can handle this important issue, although it needs to be developed.

One of the elements of a fair and efficient judicial system is the exactitude and integrity of verdicts issued by the courts of this system at different levels of the judicial structure. To be obtained this feature in the verdicts, judges should observe and consider some criteria. In this regard, the judges oblige to explain the reasons and causes of their judgment in detail when they are writing the justifiable reasons in verdict. In some cases, human rights documents may be cited as reason of verdict at the discretion of the judge. So it is necessary for judges to observe some special formal and substantive principles; because the hierarchy of norms in legal system is different in the domestic legal system, also the type of document (and how to approve any one) affects on binding of each documentThe present study seeks (by using a descriptive-analytical method) to identify and explain the criteria for the validity and Impeccability of the verdicts issued by family courts in this matter (by using the opinions and experiences of judges). Finally, the author has expressed these indicators in the form of general rules of composition of the verdict and special requirements of criteria for exactitude and integrity of judge‘s verdict based on International Documents in family litigation.

Given the importance of the offence of smuggling of goods and currency, the legislature has taken a strictly differential approach to this offence, but in some cases, the legislature has taken a more differential approach to some instances of this offence that organized smuggling of goods and currency is one of them. With a descriptive and analytical approach, this article seeks to identify the concept of organized smuggling and then the measures taken by the legislature to combat it and the challenges combating it. In the Law of Combat against Smuggling of Goods and Currency, the legislator for the first time introduced the concept of organized smuggling of goods and currency into the Iranian legal literature and, with the aim of a strict response, envisaged differential substantive and formal measures, such as: Absolute criminalization of this behavior, intensification of punishment of organized members and leaders of the organized group, anticipation of jurisdiction for the Revolutionary Court, identification of special discoverer organizations and provision of special powers and duties for discoverer organizations. Despite the large volume of smuggling in the country for reasons such as the narrow interpretation of the offence of smuggling of goods and currency from the Supreme Court, the lack of familiarity with the characteristics and criteria for detecting organized smuggling and the haste of attending authorities of smuggling of goods and currency, In practice, many detected smuggling cases are considered normally.

After the completion of the preliminary investigation, if the investigator deems that the accused is in charge with that crime, he order a summons to the trial against him. If the prosecutor agrees with that, he issues indictment against the accused in order to send the case to court. Article 279 of the Code of Criminal Procedure sets out the items that should inserted in the indictment. Clause "c" of this article states the accused criminal record as one of the items of indictment. However, the judge of the court will need the accused criminal record when he finds him guilty and want to determine appropriate punishment for him. While the accused may be acquitted in court and there is no need to determine a punishment for him at all. In this article, with a descriptive method, while reviewing the possible foundations of the mentioned legislative sentence, it will be explained that because there is no need to inform the judge about the accused criminal record before proving his guilt, inserting that in the indictment and consequently informing the judge from that is contrary to the principle of prohibition of espionage and may violate his privacy. In addition, the judge's knowledge of the accused criminal record before he or she is found guilty also damages the fair trial process and creates a negative prejudice in the mind of judge, which can violate the presumption of innocence and judge’s mental impartiality. At the end, we will provide some suggestions for fixing these problems.

The Civil Code recognizes that most of the natural wealth and public property without an owner can be owned by members of society under the general title of permissibility. This sentence, which is stated in Article 27 of this law and is detailed in Articles 141 to 182 of this law, is based on the natural theory that was prevalent in the world in the eighteenth century and with the entry into force of the French constitution and civil law, other Legal systems, including Iranian law, have been infiltrated.However, changes in social conditions and shortcomings in the natural theory of private property led to the passage of several laws in Iranian law that were inconsistent with the provisions of civil law on permissible property. These changes, which took place especially after the years of World War II, after the victory of the Islamic Revolution, were accompanied by a change in the jurisprudential view due to the establishment of the Islamic government and the tendency to nationalize public property and further encouraged this. Article 45 of the Constitution is the culmination of the incompatibility of the provisions of the Civil Code with other laws in this regard.In the present article, by discussing the above issues and examining the evolution of rulings related to the possession of public property in French law and in Imami jurisprudence, we will examine the need to amend the rulings related to permissible property in civil law and provide suggestions for this amendment.

Advances in science and technology have created amazing developments in the field of evidence to prove criminal cases, so that in parallel with the traditional evidence, a range of new evidence has emerged, all of which are effective in discovering the truth and obtaining the satisfaction of the judicial authority and making a fair and just decision on his part. Among these arguments, the use of polygraphy has become common in some legal systems, which can be effective in determining the truth or falsity of the speech of each of the actors in the litigation process. Relying on this technique, the legal systems have opposed it by claiming to protect the rights of the accused and have considered its use in conflict with some rights and the principles justifying those rights. Their claim is that polygraphy is in conflict with the defendant's right to silence, inherent dignity and psychological privacy, while first of all, performing polygraphy is subject to the consent of the accused and the person will never be forced to undergo this test. Expressing this consent will remove the objection of ignoring the right of the accused to remain silent and interfering with his psychological privacy. On the other hand, it is not always possible to imagine a negative function for polygraphy towards the accused. Polygraphy has a dual nature; while it may be a way of convicting the accused, it may be a way of proving his innocence. Also, the need to protect the rights of society and victims of crime and the preference of public interests over the private interests of individuals requires that by standardizing polygraphy as a sound scientific reason and its implementation by experts to the most important goal of the criminal process is the establishment Justice is achieved.

Prospectus is an important document at the securities and exchange market activities that have several functions. It should be considered as a complementary document of corporate statute and as well as one of the stock and exchange market regulation that was approved by both stock exchanges organization and financial market supervisory. Financial market supervisory, Bourse, some financial institutions, issuers, and investors make the prospectus the source of numerous rights and duties that give it a special nature that is came because of relation between prospectus and those other organizations of stock exchange market. At this article the legal functions of prospectus regarding the securities and exchange market actors will be reviewed. In view of above, the nature of this issue, legal status, its features and its value added to be mentioned. Prospectus has the joint features of document (deed) and regulation So it led to some affects in terms of public and private law that these rights and commitments to form a variety of relations between actors. The prospectus reduces the possibility of investors being misled and harmed and covers the investor's risk and the responsibility of the investment service provider or issuers and their managers. While prospectus can be considered as a consequence of the corporate’s statute, because the type of commitment in it is an obligation and responsibility not a debt - in a specific concept that is in the Islamic jurisprudence or contract law. Thus, it is necessary the other features to be consider for it and to be interpreted beyond of a contractual relation. first, its effect will be determined by contents and rules governing it. Second, it has legal responsibility and liability disciplinary that the kind of these responsibilities depends on subject and process of setting of the prospectus.

The purpose of the parties to a contract is the emergence of its results and effects and legal principles guarantee the stability, validity and reliability of contracts. But, the nature of the object of contract and various events beyond the parties` control may lead to impossibility of the execution of the contract. Different situations can lead to the lapse of contract; for example, physical destruction, and the loss of a future object or illegality. The Iranian and French laws do not expressly declare the legal status of the legal relationship in various cases of lapse of contract. Dissolution, lapse, nullity, retroactive and judicial termination are among the descriptions mentioned in this regard. This inconsistency is seen both in case law and doctrinal theories. But in 2016 revision of the French contract law, through study of the case law and doctrine in a descriptive and analytical method, caducite was introduced, which could resolve the mess; It is the sanction for a contract validly concluded, but lacking an essential element following a subsequent event. One of the essential elements in a contract is the object, the loss of which leads to the automatic and non-retroactive lapse. This experience can inspire the Iranian law-makers in better leading the case law on loss of object of contracts, through categorizing the causes of impossibility of the execution of contract due to the loss of its object.

Good faith, as a general legal principle, enjoys a privileged and special position in all branches of law. This basic principle is explicitly or implicitly mentioned in many countries’ statutes today. Of course, in criminal law, unlike other areas of law, especially private law, good faith is a less recognized concept and in practice neglected by many writers and researchers. In the literature of Iranian criminal law and in comparison with Western and Arab countries, the principle of good faith is not properly explained. Although the legislature has implicitly noted goodwill in some areas, including legal excuses, mitigating circumstances, and justifiable causes of committed act, he does not explicitly refer to this concept; In addition, the criteria for identifying good faith and the criteria for recognizing it have not been clarified. Only according to the legal doctrine, some judicial officials pay attention to the perpetrator’s good faith while writing the verdict and in the position of justifying the reason for modifying or changing the title of the accusation and also changing the type and amount of criminal response. In the general theory of crime, good faith finds meaning around the perpetrator's intent and reveals its effect specifically in relation to criminal guilt; in such a way that by proving the absence of malice, the person’s good faith in status of execution or exercise of the right is defended. The research method in this article is descriptive-analytical and at the same time comparative and library tools have been used to collect subjects.

Supporting production and business requires identifying challenges and barriers in various areas. One of the most important of these areas is obtaining contract insurence, especially contracting contracts that in the current practice of the Social Security Organization and the claims assessment boards of this organization there is no precise and logical criterion for calculating the contract premiums. This situation has become one of the most contentious issues in the branches of the Administrative Court of Justice and the vots of many claims assessment boards are violated for various formal and substantive reasons, which require serious attention. So this question has been answered: What are the most important challenges and causes of violation of claims in the branches of the Court of Administrative Justice? In answer to this question, using the research method descriptive-analytical, the most important results are as follows: First, there are various challenges, such as how to calculate and obtain premiums, the composition of claims assessment boards, and the determination of premiums based on audits of financial offices. Secondly, these challenges indicate a lack of indicators, principles and conditions governing the receipt of premiums in the relevant legal documents that need to be corrected.

One of the most controversial legal and political issues in recent decades - especially since the 1990s - is the recognition of welfare rights in the constitutions of different countries and how to recognize them. Although it seems that most constitutions have recognized these rights, the status of them in the constitutions does not follow a single pattern, and unlike the first generation of rights, the very existence of these rights is seriously questionable. Despite the diminishing challenges at the international level, internal disagreements persist, and these rights continue to be criticized by various thinkers, especially right-wing thinkers. This issue has led to the inconsistent recognition of these rights in the constitutions of different countries. In this article, we seek to examine the models for identifying welfare rights in constitutions. Given the wide impact of the theories of various thinkers on the current state of these rights, it is necessary to examine the objections to them. The results of the research show that the general principle in identifying these rights is their acceptance as "aspirational goals" in the constitution, and their recognition as a "justiciable right" is an exception.

One of the interlocutory orders is the criminal bail writ with various types specified in Article 217 of the Criminal Procedure Code. According to paragraphs A to G of this article, the investigating judge shall make an agreement with the accused, obliging him/her to attend in or not to leave the designated place or to appear there periodically. Restricting an accused person who has not yet been proved guilty is against the Principle of Innocence, Lack of Guardianship Principle (the principle that no person has any naturally-vested power over any other person) and the Rule of Domination. Any violation of the mentioned principles requires a permit with special jurisprudential-legal titles, and their occurrence through orders for own recognizance (OR) release necessitates identifying their nature. To interpret the nature of these orders, theorists have put forward various doctrines such as indefinite contract, judicial action and non-contractual obligation. The existence of ambiguities in these doctrines led to the emergence of new possibilities such as declaration of damages, and compromise. The result of this desk-based descriptive-analytical study indicates that the orders for OR release are, by nature, the guardianship ordinance considering the hierarchy in the appointment of officials, and the penalty clause for them is ta'ziri (at the discretion of the judge), imposed by the Islamic ruler on the accused person who violates the ordinance.