نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 17 (زمستان 1401)

 The inequality of the powers of the prosecutor and the accused and the increasing powers of the court in ascertaining the truth are important features of the Inquisitorial system, and arbitration proceedings, the equality of powers of litigants and the passive role of the court in dealing with their reasons are features of the Adversarial system. Italy and Iran have taken steps to accept the components of Adversarial Model. The 1988 Criminal Procedure Code of Italy, inspired by the accusatory system, created fundamental reforms in the provisions of the 1930 Criminal Procedure Law, which are useful for Iranian legislators to study.

 This research was done using library sources in a descriptive-analytical way.Findings of the research: Some reforms of the Italian legislature were not successful in accepting the components of the prosecution in the judicial culture of this country and were sidelined by the opinions of the Constitutional Court. Iran's criminal procedure system has accepted manifestations of the accusatory system since the passage of removing the prosecutor's office in the Law on the Establishment of Public Courts and the Revolution of 1996 and the recognition of some defense rights in the Criminal Procedure Code of 2017. However, with the revival of the prosecutor's office headed by the prosecutor; Consolidation of powers to detect, prosecute and investigate crimes in the prosecutor's office; Delegating the authority to conduct preliminary investigations to the prosecutor in crimes other than Article 302 of the criminal procedure; the authority to supervise on investigator by prosecutor; Agreeing or disagreeing with the final orders and supply orders leading to the arrest of the accused; Superiority of the prosecutor's powers in relation to other litigants; The entry of judicial authorities into issues related to the separation of attorneys into approved and unapproved attorneys; The consolidation of executive and judicial powers of investigation and proceedings at the court stage and the possibility of issuing judgments without the presence of litigants has made the path of acceptance of accusatory proceedings in Iran uneven.

The divergence of opinion concerning the issue of jurisdiction between the prosecutor's office and the court concerning initiation of preliminary investigation is a challenge about which the law is silent and despite the fact that it has not been given special attention in research sources, there are many differences in this regard in judicial precedent.In this research, an attempt has been made to delineate the position of courts in the process of preliminary investigation and to examine ideas that can be proposed concerning the disputed issue, by a descriptive-analytical method, using certain decisions found in the judicial precedent.In conclusion, an effort is made to reduce discordance in judicial decisions in this area by suggesting a suitable method.In this regard, opinions regarding the absolute or relative compliance of the prosecutor's office with the court in conducting preliminary investigations can be presented. The unconditional acceptance of the decisions of the court by the prosecutor's office, which is due to the consideration of the difference in the position of these two bodies in the handling of criminal cases, and the fact that the prosecutor’s office is an accompaniment to the court, is more compatible with the hierarchical perspective and the joint position of the prosecutor's office and the court in the field of preliminary investigations and the preservation of the judicial independence of the investigator to determine jurisdiction strengthens the perspective that upholds relative subordination of the prosecutor's office to the court. Accepting the latter point of view, it is of particular importance to specify the body that settles disputes, and legal criteria and judicial expediency justify the acceptance of the provincial appellate court as the body empowered to do so.

According to the law, a criminal warrant will be issued by the judicial authority if the accused is considered guilty. Considering that one of the criminal security agreements according to the law of criminal procedure is the guarantee agreement. Upon the issuance of a bail agreement, the accused will be released on bail. In this case, and if the result of the criminal process is a final conviction, the guarantor is obliged to present them if notified. However, the guarantor's obligation to be present is a general obligation. In other words, the guarantor must appear before the competent judicial authority whenever summoned. "Professional sponsor" is a term that applies to persons who, in order to make a profit and not to present the accused, and sometimes by presenting fake identity and financial documents, sponsor several persons in the judiciary . Professional guarantors prevent access to the accused, as if no bail has been issued and the accused have been released unintentionally. This invalidates a clear violation of legal requirements and the effectiveness of criminal proceedings. A sponsorship contract is void due to the sponsorship of a professional sponsor due to having an illegitimate direction. The professional guardian is also prosecuted by the prosecutor for aiding and abetting the trial. The solution to this legal dilemma is to amend the law. In such a way that in addition to proving the guarantor's innocence, the status of the number of guarantors in the judiciary is determined and his non-professional guarantor is also verified.

In this article, the effect of the nullity and termination of the original contract on the condition stipulated in it has been examined through a study of Iranian and comparative law with emphasis on Imami jurisprudence. The purpose of the present study is to delineate a rule for a condition which is independent from a contract, and we were faced with the question of whether the condition in any case follows the contract in the stage of formation and continuance, ie, is invalidated by its annulment and terminated by its termination. We concluded that the condition in the stage of contract formation is basically subject to the contract and as a result the "nullity of a contract having a condition" causes the invalidation of a condition, except in cases where it is understood from the intention of both parties that they believe in the independence of the condition and want it to exist regardless of the contract. For this reason, the clause concerning arbitration and preservation of secrets is valid even if one assumes that the contract is void. In addition, contrary to the apparaet meaning of Article 246 of the Civil Code, "termination of a contract that contains a stipulation" does not lead to the termination of a condition, except in cases where a condition does not have the capacity to be separated from a contract, such as `a condition regarding a specific quality or quantity or an ancillary contract, such as mortgage and guarantee in the form of a condition stipulated in a contract or if it is clear from the intention of the parties that they have made the condition subject to the original contract in terms of permanence and durability. Therefore, the aforementioned article should be considered only as the effect of the termination of the contract on the condition stipulated therin and limited to an inseparable and ancillary condition.

One of the most important tools of the distribution system of goods and services is distribution contracts, which are one of the basic elements of distribution rights, and due to the anti-competitive and monopolistic consequences that the networks resulting from this type of contracts bring - along with their undeniable competitive effects and economic efficiency - The increasing attention of western countries has been paid, and in the meantime, the rules of competition law, by applying their standards and principles, play a decisive role in controlling and guiding these types of contracts and effectively reducing their anti-competitive effects, while maintaining and improving the efficiency of contractual distribution networks in optimally meeting needs. It serves the economy of citizens. This article is the result of an analytical study of the data obtained from the law library sources of the European Union and some European countries in the field of distribution contracts, and it analyzes and explains the nature, types, philosophy of origin and economic functions of these types of contracts with the aim of developing the legal system of Iran.

The theory of the cause of obligation has been one of the most challenging theories in French law in recent centuries.According to this theory, every contract that is concluded by the consent of the parties must have a cause, since every person who undertakes a commitment is looking for a goal to be directly achieved. The goal is called the "cause of obligation". The aforementioned theory originates from Roman law; In Roman law, in order for a contract to be recognized as valid and create an obligation, it must have a cause of obligation that is not illegal or contra bonos mores. The theory of the cause of obligation in Roman law entered French law along with certain conceptual modifications. For example, based on Article 1108 of the French Civil Code, one of the conditions for the validity of a contract was considered to be the lawfulness of its cause. However, this provision faced a lot of criticism from jurists and judicial precedent. Finally, based on Article 1128 of the new Civil Law (2016 amendments), it was replaced by " content which is lawful and certain" and the concept of cause of obligation mentioned in articles 1131 to 1133 of the French Civil Code was completely eliminated. Considering the fact that this theory has also been enshrined in Iranian law and examined by Iranian jurists, examination of its nature, origin and validity can be useful for the Iranian legal community as well.