مجله پژوهشهای حقوقی
پیاپی 53 (بهار 1402)

The burden of proof is one of the most important issues that judges would encounter with. According to Article 1257 of Iranian Civil Code, the burden of proof is on the plaintiff. But sometimes it may be difficult to recognize this seemingly simple phrase. In the incident of 2022-6-3 (robbery from the National Bank of Tehran), as far as it was seen and heard from the lawyers, the burden of proving the lawsuit was on the clients(victims). The purpose of this paper is to answer two basic questions about this incident in a descriptive-analytical way: 1- Who must bear the burden of proof in the current case i.e., in the lawsuit of clients and the National Bank? 2- By what criteria are the damages evaluated? In short, the answer to the first question is that the bank in the present lawsuit should bear the burden of proof. As for the answer to the second question, it should be noted that among the theories of national and foreign judges, the theory of the average of the stolen Safe deposit boxes should be accepted.

This article aims to address the human rights obligations of pharma companies regarding access to vaccines and other drugs that are produced for the prevention and treatment of COVID-19. It seems that the UN Guidelines on Trade and Human Rights are among the most important documents and organizations which give pharma and vaccine companies some responsibility and fair access to vaccines and special medicines, in case of emergency. Since the right of access to vaccines is a fundamental human right, access must be provided fairly in the emergency conditions of a pandemic virus. Besides, discrimination, monopolies and nationalism must be avoided as much as possible. The results illustrate that public access to the COVID-19 vaccine is justified under the heading of social contract and it persuades human rights to support the idea of corporate social responsibility more broadly. Other results of this article indicate that there are many challenges to achieving universal access to vaccines, including nationalism, monopolies, exorbitant pricing, and the spread of corruption. It is hoped that, with proper monitoring by international organizations and the World Health Organization, these challenges can be reduced to pave the way for fair access to vaccines as a fundamental human right.

In international investment agreements that a government enters into with foreign investors, the investee government may terminate the agreement between itself and the foreign investor unilaterally for reasons such as safeguarding its interests. Termination of the contract for convenience expediently refers to an institution in which the employer and investee government terminates its contractual relationship with the contractor, in whole or in part, before the expiration of the contract, in order to protect its interests. Research Method The present research is descriptive-analytical in terms of the method of collecting library methodological materials. Items such as the public interest, the implicit condition, the theory of effective breach, and the elimination of the purpose of the contract are among the principles set forth in U.S. law for the unilateral termination of the contract for convenience of the employer. Also in Iranian law, issues such as the public interest, the limits of the authority of the Supreme Leader are among the principles mentioned for this issue. Termination of the contract for convenience is expedient in terms of the nature of the contract, and it seems that its more precise nature, depending on its basis, can be a conditional option and even termination. In American law, in addition to the fact that the termination of the contract for convenience expediently can be terminated on the basis of an explicit or implicit condition of the contract, failure to comply with the terms of this right can be considered a breach of contract.

In obligations, there are factors that can delimit it and cause it to change or void. good faith is one of the elements that can make a difference. In French law, previously, good faith was considered effective merely in the performance of the obligation, but by amending its law in 2016, it extended it to pre-commitment negotiations and the creation of an obligation. Goodwill has been used in both general and specific meanings. The effects of that in delimiting obligations are different in the general and specific sense. Goodwill works in the general sense appear in the role of mistake, and in this regard, the laws of Iran and France have similarities and differences other And in a special sense, it is crystallized as a lack of information or dishonesty in behavior in this regard, Iran's rights do not have a common path with France and in some cases, it is not even recognized.

Banks and other credit institutions can face crises during their operations. The institution of temporary administration or conservatorship is one of the methods of restructuring banks and other credit institutions in times of crisis. The purpose of this study is to identify, legal description and explain the territory of temporary administration. Finally, while defining, legalizing and explaining the scope of this institution, we reached the following conclusions First, in the event of several circumstances, such as the suspension of a bank or credit institution, the regulator, such as the central bank, either directly takes over the management of the bank or the credit institution or delegates it to another person. Secondly, temporary administration is basically a kind of imposed and compulsory agreement arising from the law and public order. Thirdly, not only with banks, it is possible to implement the conservatorship for other credit institutions, such as credit cooperatives, leasing companies, exchange offices, Gharz al-Hasna funds and even insurance companies, Rather, the scope of the temporary administration is not limited to the management of deposits by the guarantor bank or credit institution, and for various reasons, has a wider scope, and the comprehensive administration covers all property and all matters. This analytical view of the issue can provide approaches to the legislature and the courts in the discussion of the temporary administration of a credit institution by another credit institution and fill its gaps in the Iranian banking legal system.

In the scope of Private international Law whenever external applicable Law is against to Public order of lex fori, it will be Prohibited from Performance. Initially in international institutions and Conferences , in concern with the criteria For determination of Foreign Law contrarity with Public order of Lex fori, in order to enumerate the rules which relates.to Public order efforts were made, but due to cultural, religious and civilization variety of countries , these efforts were not successful. so nowadays determination of this subject is conferred to judicial authorities which called “deduction method”. But Extensive Power of judges in this method cause to that private international Law scholars provide solutions for limitation of judge’s power.Planning the doctrine of “Acquired Rights”, the theory of diminished effect of Public Policy and the doctrine of intensity of the relationship with lex fori had been instances of this efforts. The result of these mentioned theories are that: If application of Foreign Law merely in practice is Contrary with Public order of Lex fori, the Judge prevented the implementation of Foreign law. This notion from public order is coordinate with the exceptional nature of public order rule in private international law.

With the adoption of the EU Compensation Guidelines for the 2014 EU Anti-Monopoly Act to compensate for all damages and even profits and lost profits (direct and indirect purchasers), absolute liability was foreseen for violators of competition law. There are exceptions to this rule, of course. This did not happen until the end of 2016, despite the Member States' requirement to implement these rules in their national legal system due to legislative and administrative challenges. Some of the challenges are related to being possibility to turn us over to absolute responsibility or agree contrary to the rules of procedure, the deterrence aspect, litigation, challenges associated with indirect buyers at the end of the supply chain and informing buyers These challenges and other challenges that have arisen have led to the Union issuing a statement on how to implement the provisions of this directive in the legal system of the Member States. Identifying these challenges and the solutions offered in this regard can pave the way for legislative policy-making for the development and enhancement of competition law rules in the Iranian legal system.

In the judicial process in judicial authorities, judicial official performs the judicialand legal (civil) matters. Granting of judicial representation will involve at least two judicial authorities in the judicial process. This paper is aimed at examining the authorities and competence of judicial authorities concerning the territory, types, and quality of granting and execution of judicial representation in the field of research, execution of rules as well as other appropriate judicial matters in terms of the necessity to comply with rules and regulations and laws related to judicial authorities’ competence and quality of judicial representation process pursuant to Articles 119, 120, 121, 122, 334, 558, and 659 of the Code of Criminal Procedure adopted in 2013, Articles 290-294 of the Code of Civil Procedure of General and Revolutionary Courts approved in 2000, Articles 20 and 50 of the Enforcement of Civil Judgments approved in 1977 and Article 5 of the Code of Non-litigious Jurisdiction act approved in 1940 and other related laws and regulations and addressing the issue as an effective judicial issue by an analytical and descriptive scientific research method. The objective of issuing judicial representation is to facilitate and expedite the trial besides preventing its delay. It is common in law- authorized cases and in accordance with judicial procedure and will be necessary at the discretion of the judicial authority. The quality of its issuance and execution is necessary according to Criminal and Civil Codes in the framework of the provisions of judicial representation, affecting the achievement of the reason and discovery of the truth as the effects of judicial representation, which will be important by making a decision and issuing convincing opinions leading to the realization of rights and the administration of justice.

The rule of immunity of states and their property from the jurisdiction of domestic courts is a rule of customary international law and exceptions are set out in customary international law as well as in the 2004 United Nations Convention on Immunity but some countries, such as Canada, have begun efforts to add a new exception called terrorism by amending their former immunity law earlier this century. The crash of a passenger plane with P. S. 752 belonging to Ukraine in 3 January 2020 as a result of hitting two IRGC missiles has several legal issues, including the legal and criminal liability of the perpetrators and culprits of the accident, how to compensate damages, violation of obligations under international conventions, has created the international responsibility of the Iranian government and the possibility of litigation by survivors in domestic courts or litigation in the International Court of Justice. Subsequently, some survivors of the plane crash filed a lawsuit in Ontario and a sentence was handed down to Iran, citing the deliberate firing of a missile and its terrorist nature. In the area of government immunity, as well as the draft of the 2004 United Nation Immunity Convention and the attempt to implement the vote issued by the survivors, the rule of government immunity has faced a new challenge.

With the withdrawal of NATO forces from Afghanistan and the Taliban's rise to power as the country's central government, the International Criminal Court's investigation of Afghanistan has undergone fundamental revisions. On the one hand, the Prosecutor of ICC declared that he has decided to "focus [his] Office's investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province ("IS-K") and to deprioritize other aspects of this investigation." On the other hand, as the central government, the Taliban controls the entirety of Afghanistan's territory and its military and non-military institutions and possesses the capacity for heightened violence and challenging the Court's decision. Since its inception, the ICC has encountered the dilemma of choosing between peace and justice on numerous occasions, adopting a unique approach in response to each. In some situation, it has opted for a strictly judicial solution in some, like the Sudan situation and the Omar al-Bashir case. In contrast, it has settled on a flexible attitude in handling the issue of peace in Columbia and Uganda. In dealing with the Afghanistan situation, the ICC can choose a narrow approach in the investigation phase, thereby alleviating the sufferings of the victims and their relatives through disclosing the truth supported by the right to know the truth, while at the same time paving the way for the punishment of the perpetrators of serious crimes. This study examines "the interests of justice” stipulated by article 53 of the Rome Statute. Furthermore, the article seeks to answer whether or not the interests of peace can serve as a basis for terminating the Afghanistan investigations.

One of the basic components of the contemporary world with a significant impact on human life, such as role-playing in inciting citizens to commit a crime, is the media. Therefore; the present study explains the role of Facebook in committing the crime of inciting genocide in the Myanmar civil war. Findings show that in Myanmar's civil war, pro-government militias used Facebook to directly perpetrate genocidal Buddhism by committing genocide against Muslims, using Facebook to directly influence public opinion and to alienate the taste of a violent society (an interaction between the media and citizens). They provoked the Rohingya. Therefore, the role of Facebook in inciting genocide in Myanmar is obvious; however, it is not possible for Facebook to be tried as an independent entity in international criminal courts. Just as the charges against legal entities such as the Millennium Free Radio and Television Station were not heard in the Court of Appeals, despite their direct influence in inciting genocide in the Rwandan Civil War; Because the purpose of the authorities dealing with international criminal law is to try natural persons. However, the impossibility of punishing legal persons in these authorities does not negate the possibility of domestic courts prosecuting the crimes of the persons in question.

Given the growing approval of peacekeeping operations by the UN Security Council and the possibility of war crimes and crimes against humanity by peacekeepers in the area under operation, it is imperative that these forces be criminally accountable for their actions during their mission. In fact, the importance of accountability of these forces for committing these crimes has attracted the attention of the media and the international press. Therefore, given the limitations of competence and the lack of a proper mechanism for prosecuting UN peacekeepers in the United Nations, the prosecution of these forces in the host government, the sender or the third government faces obstacles. In legal writings, the possibility of prosecuting peacekeepers in the International Criminal Court has been less considered. This article seeks to answer the question of whether such a prosecution is possible under international criminal law. The failure of governments to prosecute the criminal behavior of peacekeepers shows that an independent international tribunal is needed. If the conditions for committing a crime exist and the interested governments do not want or cannot prosecute the accused and the crimes committed, the peacekeepers can be prosecuted by the International Criminal Court for war crimes and crimes against humanity.

In the formulation and development of the international climate change legal regime, a retreat from binding compliance mechanisms and a shift towards the use of softer legal framework and bottom-up designs can be seen. Regardless of the effectiveness of international climate agreements in managing climate change, in terms of the use of hard or soft law and the type of compliance mechanisms design, this article seeks to find and examine the reasons for the soft law prevalence in the process of international climate law development from the perspective of the school of legal positivism.According to the positivist approach, although the mixing of wills, arising from objective and scientific facts, has provided the necessary force to shape the international climate change regime, the duality in the system of obligations and interests multiplicity of internal influential groups in the process of accepting treaties has caused the collapse of the States collective will before Paris Agreement. Therefore, in the Paris Agreement, with the preference of voluntarism over climatic requirements and attention to the national sovereignty of countries with the waiver of strict obligations, the ground for concluding an agreement and making a change in the legal regime of climate change was achieved.

In the feminist debate, the criminal justice system is considered as a failed model for the advocacy responses to victim women due to the domination of the masculine approach and lack of enough necessary attention to the concerns and traits of women. First, restorative justice which itself is the result of victim movements and feminist criminology seems to be in the same direction with the values of the women's rights movement by empowering women and creating an interactive and flexible environment between the offender, victim, and civil society.

By the documentary method, this study answers how much restorative justice programs conform principles and values of the movement of feminism and, on the contrary, what critics have feminism brought to restorative justice practices. From the perspective of feminism, restorative justice has acted more appropriately to the victimization of women in family violence compared to the criminal justice system.

Even though some of the criticisms come from the lack of correct implementation of restorative justice programs, but also feminist challenges of restorative practices regarding the victimization of women in family violence are serious. The most important challenges to restorative justice are: lack of enough attention to victim women's safety in restorative practices, imbalance of power, pressure on victim women and threat them, insist on forgiveness and forcing women to take part in restorative programs, or affecting the process by the offender, tolerance with the offender and lack of adequate accountability and so lack of general and specific deterrence, strengthen the cultural norms of male domination.

In the present era, elections are one of the basic pillars of the holy system of the Islamic Republic of Iran.. A successful election requires the four basic elements of candidacy on the part of the candidate, the quarantee of health by the oversight body,security on the part of military, and finally the active participation of the people. Now, if the health of the people,s vote is endangered due to committing to crimes and violations in this dangerous field, it is necessary to prevent the occurrence of crimes by providing solutions and taking the necessary measures in the area as much as possible.One of the most effective solutions is to identify the causes of electoral crimes by using theories and related schools of criminology.Realistic or positive approaches, theories of opportunity, rational choice and cultural criminology are among the most important teachings of criminology which is way forward in the etiology of electoral crimes and can also be effective in the field of marco-criminal policies in the field of appropriate response and accountability.In the present study, which deals with the criminological analysis of electoral crimes through analytical, applied and library methods, in addition to the etiology of committing such crimes, situational prevention and social prevention strategies based on the identified causes have been considered, which are largely useful and they are effective and their use can prevent the occurrence of these crimes in the election campaign.

Taxes are recognized as sustainable government revenues. Hence, the requirement for taxpayers and citizens to adhere to taxes can be the key to developing and improving social welfare and economic growth and development. This research has been written in a descriptive-analytical method to identify the factors affecting the non-compliance of taxpayers. Unfortunately, despite the various efforts made to spread and expand the acceptance of taxes, we still see a high level of tax crimes. The findings of the research indicate that the various causes that lead to tax crimes are discussed in different aspects of the tax system. Since the Iranian tax system consists of three pillars of tax laws and regulations, tax organization and structure and taxpayers, the study of the causes of tax crimes was initially investigated in these three pillars. For example, we see the existence of weaknesses in the framework of tax laws and regulations, and the lack of quality and transparency of tax laws as a legal basis for the commission of tax crimes.

During the last century, the "environmental issues" took on a global dimension and became a "sustainable crisis" of the international community; A crisis that poses a serious threat to humanity and is now taking on new dimensions with the escalation of global warming and the crisis of climate change. The result of environmental crimes can be as serious as damage to the health, safety and life of individuals and wildlife, as well as severe habitat pollution, biodiversity and climate change. However, the special nature of these crimes, which have high benefits and low risk, has made it impossible for recourse to criminal law to significantly reduce the rate of these crimes. Indeed, criminal justice alone is not able to respond effectively to such crimes. In fact, the restorative justice approach can have two main advantages over environmental crimes. On the one hand, it allows the multidimensional nature of environmental injustices to be considered and focuses on the wide range of needs of « non-human victims «. That is, the need to compensate and repair the past damages, the need to accept responsibility, the need to participate and cooperate in the process of investigating environmental crime to be conclude. On the other hand, the restorative justice process also makes it possible to prevent the recurrence of crime and damage to the environment in the future.

Cyberspace platforms provide countless services to their users; At the same time, they have access to a large amount of users' personal information and data. The value of this personal data is increasing day by day due to the possibility of commercial, economic, advertising, political, etc. exploits. The experience of a few years of technology development in cyberspace indicates the short life of many virtual platforms; So that most of the active platforms in 2004 were forgotten in 2021; Hence, today's popular platforms may not last long. The uncertain legal nature of personal data and its governing system, on the one hand, and the diverse value and uses of data, on the other, add to the temptation to take over this digital content and complicate its fate in the event of the virtual platform being shut down. The main purpose of this study is to evaluate the idea that property rights structures, along with privacy measures, can further protect individuals' rights over personal data. In this article, by applying the library research method, the ability of personal data to be classified as property is examined, then the status of personal data ownership is analyzed from the perspective of related regulations. The possibility and necessity of moving towards the establishment of a system based on property rights on personal data along with the quasi-contractual system of privacy, in order to draw the rights and duties governing personal data in the event of closure of the virtual platform, is proven in this article.

Child abuse is one of the growing crimes, in recent days and there has been a significant increase in child abuse statistics. Therefore, it is very important to take the necessary measures to prevent such criminal behaviors. Child and Adolescent Protection act, adopted in 1399, is one of the legislative innovations to prevention and legal confrontation with this phenomenon that provided significant legal protections to children and adolescents. However, there are still many legal and practical challenges facing it. In this library research, innovations and challenges of this act were examined, the result of this studies are as follows: One of the innovations of this act is maximizing the capacity of government organizations such as the Welfare Organization to prevent child abuse, identifying and providing legal protection to children and adolescents at risk of victimization such as children dropping out of school, children with parents Prisoners, addicts, and redefining the harms to children and adolescents, such as economic exploitation of children and child pornography. On the other hand, the practical challenges of this law are the restriction of the concept of emotional harassment and the lack of enforcement guarantees for it, the imposition of minimum punishments for abusive parents, the imposition of minimum punishments for sexual harassment, and the lack of appropriate mechanisms to personality file for abused children.