مجله حقوقی دادگستری
پیاپی 122 (تابستان 1402)

To identify the subject of this Article, the pure defense first must be separated from hybrid counterclaim. Hybrid counter claim has a dual function: the first aim of this claim is to reject the adversary claim. On the other hand, as similar as the pure counterclaim, it renders a claim, out of the object of principal claim. In Iranian Law, some proving criteria have been rendered by legal writers to distinguish these two judicial acts. In these theories the probative value of the defendant’s documents, determine the necessity of filing a counterclaim. Upon analysis of this paper, the proving criteria in theory and practice are not convincing for distinction of counterclaim from merit defense. Criterion accepted in this Article is that in counterclaim, the defendant claim to get a profit other than mere reject of adversary’s claim. In spite of apparent simplicity of this criterion of distinction of counterclaim from merit defense, its practical application is not without complexity.

There exist numerous theories regarding the decision-making process of a judge. Many legal experts believe that the judgment process is a fully conscious one. The judge consciously evaluates the issue and decides based on pure logic. On the other hand, some consider judgment an intuitive process influenced by factors other than law. In practice, however, the examples are such that they can confirm the opinion of both sides. In other words, the judge sometimes makes logical and sometimes intuitive decisions. A dynamic can be seen in judgment, which this article seeks to explain with a descriptive-analytical method based on the findings of psychoanalysis. The goal is to offer practical solutions to enhance decision-making based on the information presented. According to psychoanalysis, if a judge's emotional experiences and unconscious thoughts are somehow related to the case at hand, their judgment may be based more on intuition. That is, the judge makes his decision and then looks for logical reasons and justifications to explain it. From this point of view, emotional experiences are a decisive component in the dynamics of judgment. However, the judge only sometimes decides based on the solution that comes to his mind. He typically assesses decisions based on his moral implications. He will issue a judgment if the decision aligns with his moral code. Therefore, the moral factor is another component in the dynamics of judgment. This moral factor also largely depends on the judge's cultural context and personal experiences. Based on the presented materials, it is suggested that instead of asking the judge to be impartial in his mind, we should ask him to observe the procedures and practices of impartiality. To minimize the influence of emotions on the judgment, the judges should postpone their decision for a few days instead of making an immediate one.

Criminal laws and regulations criminalize only a part of harmful behaviors. If the study of crime is limited to behaviors that are considered crimes or violations according to laws and regulations, In that case, certain types of harms will become the "Off Limits" of criminal policy. However, many behaviors that are equally or even more harmful and are committed by powerful offenders are beyond the control of the criminal law. The interaction of Corporations and States has led to the emergence of a new type of crime called "State-Corporate Crime". Today this criminal partnership has led to the global climate crisis. While the harmfulness of anti-climatic behavior is very severe and at the level of "Catastrophe"; acts and omissions such as non-adherence to climate agreements and emission of greenhouse gases (GHG), which also occur "continuously" are not criminalized in domestic and international laws. By introducing the concept of "Climate Crime" as a library study, the present work sought to answer the central question that: According to what indicators climate crime is recognized? And how criminal policymakers can identify anti-climate behaviors as crime? What criteria should be followed to identify anti-climatic behaviors and criminalize them? According to the  research findings, by putting "Harm" as the center of this crime and classifying it based on the severity and occurrence of climatic harms, these harmful behaviors can be identified as a crime. The victims of this crime are countries, islands, humans, the environment, animals, etc. Therefore, climate victims are clarified in the light of the "Harm-Oriented" index and the range of climate victims is developed with a focus of "Ecological Justice".

At the end of the lease contract, the tenant must vacate the property. However, in certain cases, even after the end of the contract, the legal rules may entitle him to continue his possession and do not recognize the lessor’s right to evict him. Therefore, despite the silence of the Civil Code, it can be said that if the lessee has created constructions (building, planting trees, digging a well, etc.) with the lessor’s permission, the latter one cannot evict him from the property at the end of the contract, because people invest (construct a building) thinking that the legal system supports their reasonable expectations, and the lack of sufficient support for this expectation will destroy the incentive to invest and will have harmful effects on the economy. Also, in cases where due to the lack of legal permission for transferring endowed properties, the ownership documents of individuals have been annulled by special laws, the law recognizes them the right of priority in possession and the lessor cannot demand for their eviction unless the extension of the contract is not compatible with endowment’s interest.

The indivisibility of claims in the civil procedure of Iran and FranceAbstract The indivisibility of claims is different from the indivisibility of one claim and the indivisibility of judgments. In the Civil Procedure Code of Iran the term indivisibility of claims (Articles 104, 298) and the indivisibility and inseparability of judgments (Articles 308, 359, 404, 425) have appeared, but the term indivisibility of claims has not come.inseparability of claims does not cause "dependency of procedure" but necessarily creates "unity of procedure" between two or more lawsuits. Therefore, indivisible claims are processed as an inseparable "whole".It seems that the definition mentioned about complete connection in Article 141 of the Civil Procedure Law of Iran is not only the definition of connection, but it is the definition of the highest level of indivisibility of claims.However, for the indivisibility of claims, complete connection is not the only criterion and it has other criteria as well. Indivisibility in the proceedings also creates the effects of the unity of the procedure. For example, when the indivisibility of claims is realized, the expansion of jurisdiction occurs, and also the events of proceedings in one cause an effect on the other, and a appeal against one decision causes a appeal against another decision.Key words: indivisibility, inseparability, complete connection, dependence of procedure, unity of procedure.

What happens if more than one person is blamed for causing an injury? It is clear that the liability must be divided between them, but the problem is the criterion of apportionment. Should the liability be apportioned equally or differently? If the latter is true, how the share of anyone is determined? In foreign legal systems, there are different ideas in this regard, and finally, it is up to the court to apportion the damages fairly. Islamic law has accepted the theory of equality of liability. After the approval of the Islamic Penal Code, this view entered into the law of Iran, but the jurisprudence with the justification that the theory of equality is based on the assumption of the equal effect of each of the tortfeasors accepted the possibility of proving otherwise and accordingly, each share was determined based on the extent of its impact on the occurrence of loss. The Islamic Penal Code in 1992, under the influence of existing doctrine and jurisprudence, accepted this view in Articles 526 and 527, while in Articles 453, 528, and 533, the theory of equality of responsibility has been followed. In this article, we have tried to explain the foundation of the theory of equality in Fiqh and its results in interpreting the Islamic Penal Code.

Part of IMAM Ali is teachings provide for elements of criminal policy and contain ideas and special measures against criminal phenomena.One of this elements is, criminalization behaviors and determination of punishment for reducing and control of criminal phenomena.In this article according to resources of the books we showed and used descriptive and analytical methods for considering criteria interfering behaviors criminalized in Alavia teachings.This research was shown that unsociable behaviors against five life, money, descent, wisdom and religion, has a reprimand ability, so interfering is necessity penal in these cases are undeniable, thus these aforesaid objectives are so essential policy, criminalization of incompatible and adverse behavior against five objects is way for reducing and controlling crimes on the light of criminalization rulers.Besides if there are other methods against crime excepting punishment, resorting to punishment is not correct and punishment has minimum use and is last way for using.

The history of legal institutions, for instance administrative law institutions, is one of the unknown issues in Iranian legal discussions. Study the history of institutions can help analyze their status and problems. The subject of this article is a historical analysis of the establishment of one of the legal institutions in Iran, Which at that time, like France, was called the Council of State. In the exist sources in Iran about the history of the Court of Administrative Justice in Iran, there is only a brief reference to the law of the State Council of 1339. But the issue of establishing a Council of State since the victory of constitutionalism has been an issue for Iranians. This article by descriptive-analytical method and review of historical documents seeks to examine the question of what attempt have been made from the first parliament to the end of the Qajar era to establish a Council of State in Iran. In this article, by study of the exist sources such as the works of Qajar writers, government decrees, parliamentary laws, government programs and detailed parliamentary debates, we have concluded that There was a correct understanding of this institution and its competencies. But the fear that this institution would contribute to the tyranny and power of the monarchy prevented the establishment of this institution.

Ability to execute a court judgment is one of the most neglected criteria in Iranian legal sources as a necessary condition for issuing a judgment. The purpose of this study is to analyze the importance of this criterion.In this research, the court judgment has been defined and identified and the criteria for its issuance and implementation have been reviewed.Then, the criterion of enforceability was considered as one of the necessary criteria for issuing a court judgment. According to the results of this research, the ability to execute is one of the necessary conditions for issuing a judgment, and the court must pay attention to the fact that the issued judgment can be executed according to the legal conditions at the time of issuance.Refuse to issue such a judgment in an audio where it is not possible to execute it.Key words: Ineffective sentence, court order, sentence enforcement, enforceability, sentence, court order, vote, court ruling

The nature of computer tools is the way it is used and the type of its function, which can be seen in two ways: active with the technical function, or passive with the dominance of deceptive human activity, enable them to play two different roles and ultimately form There are two distinct types of fraud including classical and computer fraud. Based on this, those believe the broad interpretation, consider the mere use of a computer-based tool during the criminal's activity to be sufficient to computer fraud. On the opposite, the followers of the narrow interpretation, by presenting a logical and Conceptual interpretation of Article 741 of the Islamic Penal Code (the section on computer crimes), consider computer tools to be effective in the formation of computer fraud only in two sections: "How to use and type of operation" and "commitment situation" that qualify for special conditions during the monitoring and processing of data and the interaction of two systems at the beginning and destination, which associated with indirect human action. This research, with the method of studying official and library sources and evaluating the judicial procedure and some court decisions, succeeded in identifying and extracting three objective criteria: "a computer as an inherent characteristic of a tool with data processing capability", "the need for culpable to use the technical and active function of a tool" and finally "the virtuality of the platform from the beginning to the end of the process of creating and realizing the crime in this platform" which seems to be effective in the differential evaluation of these two forms of fraud in Similar cases. In this regard, it is suggested three criteria be applied in the form of an approved law, so that the challenge in question doesn’t lead to Division and disagreement in judicial procedure.

the concerns and challenges for Iran to accede to the Convention for the Suppression of the Financing of Terrorism (CFT),eventually led to accession using the reservation. But among the reservations of Iran, there is a very general reservation that its legal status needs to be discussed. Therefore, the main question of the present article is whether the general reservation entered into the CFT by Iran is invalid according to international law or not, and if the answer is positive, what effect will this invalidity have on the situation of Iran's accession? This article with the descriptive-analytical method and library tools, especially by examining the available documents, concludes that the general reservation of Iran as one of the examples of reservations contrary to the purpose and subject of the treaty is invalid. On the other hand, In general and given the CFT's silence on this issue, the invalidity of the reservations does not invalidate the accession. In other words, based on the current provisions of international law and the existing practice, invalid reservations, including the general reservation , do not invalidate the accession and on the other hand, against the will and consent of Iran and without considering its reservations which are considered invalid for any reason, It is not possible to consider this country committed to the entire convention. Especially, since the authority and mechanism for achieving certain invalid reservations have not been set, and the issue is reduced to the agreement or opposition of other parties in establishing a treaty between them and Iran. Despite this gap in the provisions of international law and the discussed convention, although Iran can join the CFT by maintaining its invalid general reservation, such a reservation will face the implementation of the convention with challenge, which necessitates the revision of the said reservation.

There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where the divorce decree is issued and "the two-step theory of such divorce process". The different effects resulting from the acceptance of each of these approaches on the rights of each couples in the judicial process and implementing stage of divorce, confirm the necessity of investigating the issue.This descriptive-analytical study was conducted by examining the advisory theories of the Judiciary Law Department and using the votes issued by the family courts and issues discussed in the judicial sessions; to answer this main question: "what is the divorce type on behalf of the wife as husband's advocacy and its effects". The results revealed that, Article26 of the aforementioned law, in terms of determining the divorce type (on husband's behalf) is ambiguous and therefore suggests a revised text. In addition it considers the best interpretation of the above article in being two-stage of wife divorce on husband's behalf: firstly, verification lawsuit for the power of attorney for the wife, and then a request to issue a certificate of compromise impossibility in the uncontested divorce form. This theory, which is more consistent with the provisions of Article 26, solves the problems faced by the other two theories, especially in terms of closed matters' validity in case of not executing the divorce decree within the deadline stipulated in Article34 of the Family Protection Law.

Personal Status registration Code endows ‘Provincial Security Council’ to decide on the Iranian nationality of those whose nationality is under question. The general assembly of the Iranian Supreme Court, in its binding judgments no 658 and 748, made an end to uncertainties regarding judicial review of Provincial Security Councils’ decisions on Iranian nationality. The General assembly finds that the applicant might subject such administrative decisions to judicial review. Nonetheless, there is room to enquire about the competent judicial body to proceed with such judicial review. In the final analysis, I believe that a distinction should be made between cases of requests for Iranian ID and cases in which an already existing Iranian ID is subjected to the annulment process (i.e. suspected holders of Iranian nationality documents). While the Court of Administrative Justice would more appropriately handle the first category, civil courts of the first instance are the competent court to deal with the second category

whistleblowing is one of the important tools in fighting corruption and strengthening transparency and justice in societies. Considering the limitations and shortcomings of official supervision, the need to discover organized and systematic corruption, facilitate the process of investigation and prosecution, promote transparency and public trust, encourage prevention and fight against corruption, pay attention and focus on criminal policies. Participation has increased as a legal tool to encourage and support whistleblowers and strengthen whistleblowing. Iran's legal system took its first step in this field by offering financial support to whistleblowers, but its action is only based on the support aspect. Therefore, in an efficient and systematic manner, it has not been able to use the functions and capacities of the collaborative criminal policy in relation to the disclosure of corruption as it should and deserves; Because the use of collaborative criminal policy capacities requires other efficient and systematic legal measures and platforms. For this purpose, the current research, based on descriptive and analytical methods and based on library sources, concludes that the use of collaborative criminal policy capacities with the fundamental and fundamental challenge of the lack of measures and criteria for determining the scope of the whistleblower, the scope of the whistleblower, the method of whistleblowing is to protect the whistleblower, which is neglected in the mentioned plan. In this regard, the present research, while explaining and analyzing the challenges facing the legislator, in the light of the solutions adopted by other leading and pioneering countries in this field, provides measures and criteria to overcome the challenges. It helps to facilitate the legalization of corruption disclosure in Iran's legal system.

According to empirical studies, the process of investigation and traditional and retributirism magisterial decisions have not been effective in finding the appropriate answer and reducing the inflation of domestic violence cases despite its high costs; Since the point of view of the above-mentioned criminal justice system has been only to deal with the substantive issues of the lawsuits and apply the rule to them. Attempts to solve this problem and apply alternative views had to the proposal of a new approach under the title of problem solving with components such as rethinking the role of the judge in many countries under the common law system. The current research deals with two main issues through the aforementioned approach: First, what is the evolution of the judge's role in problem solving approach? And second, to what extent have the effects of this evolution been recognized in Iran's legal system? To answer them, the method of content analysis of legal documents and documents, including judicial cases (15 samples) in the summer of 1401, was used in the Justice Complex of Razavi Khorasan province. Also13 hearings were also observed and investigate the attitude of criminal justice authorities, 30 judicial activists and lawyers and a number of victims interviewed using the in-depth interview method. The findings of the research showed that in the approach of problem solving, in the criminal justice system of Iran, the judicial procedure of some judges, although unknowingly and unsystematically, has the characteristics of problem solving with different degrees

Two categories of the judicial role in political society can be separated: the activist judge and the self-restrained judge. The activist judge utilizes the judicial office to realize social ideals such as protecting people's rights and social justice. On the other hand, the self-restrained judge tries as much as possible to apply the law with a textual approach and avoids activism. The article provides a theoretical framework for understanding judicial activism. Judicial activism has significant risks and may harm legal values such as the rule of law, separation of powers, and democracy. Despite all this, the article argues that we can talk about legitimate judicial activism under certain conditions. So we must think about the activism's direction and political context. The article shows that it is justified for judges to resist the "lawmaker's war against the rule of law" and actively protect people's rights against the encroachments of the ruling system..