نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 20 (پاییز 1402)

Iran's judicial practice in cases where there is a conflict between the reasons for the prohibition of prosecution and the suspension of prosecution, is often inclined to the latter order. In this area, a question is raised; According to Article 13 of the Criminal Procedure Code, if the plaintiff passes away, is there any legal justification for issuing a suspension of prosecution for a behavior that, according to the investigation of the judicial authority, does not have a criminal character? The author is of the opinion that the issuance of a suspension of prosecution, considering the phrase "criminal order" at the beginning of the mentioned article and the phrase "forgivable crimes" in the mentioned paragraph, is related to the criminality of the behavior and if the behavior attributed to the accused According to the preliminary or extended judgment of the judicial authority, if it has a legal aspect or is considered a non-criminal matter, the issuance of a restraining order has priority, and the passing of the private plaintiff has no effect on the nature of the non-criminal matter or the cessation of this substantive assessment.This issue has been brought to the attention of the legislators of this country in the French criminal procedure law in such a way that conciliation or restitution of the complaint as the plaintiff's right in "special" public lawsuits causes the prosecution to stop. Therefore, in this regard, the point of view of some judges regarding the priority of formal suspension of prosecution over substantive prohibition of prosecution is not absolutely acceptable. The author examines the subject in an analytical and descriptive. According to the knowledge and awareness that was obtained from the reasons for issuing the prohibition order and the suspension of prosecution, especially paragraph "b" of Article 13 of the Criminal Procedure Law, it should be acknowledged that the reasons for the prohibition order cannot be combined with the reasons for the suspension of prosecution. Because if there are reasons for the acquittal of the accused, especially the lack of criminal description or the lack of attention to the charges against the accused, there will be no reason to raise the reasons for suspending the prosecution, especially paragraph "b" of Article 13 of the Criminal Procedure Law, and the private plaintiff's indulgence in behavior that is basically It is not subject to criminal prosecution, it has no effect in stopping the prosecution with a suspension order, and the judicial authority is obliged to acquit the accused with a prohibition order according to Article 265 of the Criminal Procedure Law. Likewise, It is worth noting that if the Emirates and the witnesses do not pay enough attention to or attribute the accusation to the accused or it is weak or basically the judge is faced with the lack or lack of evidence and at this stage and during the investigation, the plaintiff declares his forgiveness, to The reason for this is that all four aforementioned conditions are present, the issuance of the suspension order is the first, and there is no need to prove the crime or the existence of evidence to prove the claim in accordance with Article 160 of the Islamic Penal Code at the time of issuing the order.

The principle of publicness of the proceedings is one of the criteria for ensuring the fairness of the proceedings, which results in guaranteeing the rights of individuals and improving the quality of criminal proceedings. This principle is accepted as an accepted principle in international human rights documents and the statutes of criminal courts, but What is certain is that the principle of public proceedings, like other general principles, is not an absolute principle that can be implemented under any circumstances; Sometimes the presentation of higher interests such as national interests, good morals, private interests of the litigants and the requirements of justice will limit the need to observe the public nature of the proceedings and will be a reason for holding the proceedings in private. This principle has been provided in domestic laws in line with the legal systems of the world,and the constitutional law in principles 165 and 168 and other formal laws have assumed its subject, general and non-transparent exceptions to this principle in international and Iranian laws can be considered. It is not a defense, and the use of terms such as "acts contrary to modesty", "crimes against morality", "religious sentiments", "public order", "private lawsuits and family relations" etc. in vague and non-transparent domestic laws. is, and it was necessary for the legislator to fully explain these exceptions so that only in the cases that are rightly included in the exception, hearings will be held in a closed manner, so that fair proceedings can be realized from this platform. This essay, which was carried out in a descriptive-analytical method, first discussed the position of this principle in international and domestic documents, and then carefully considered the exceptions to the principle. Considering the dignity and prominent position of the principle of openness, it should be said that the openness of criminal proceedings is considered a principle and non-publicity is considered an exception, which means that the exceptions in practice should be interpreted in a narrow way so as to be the basis for the implementation of this principle. be provided This principle is fully compatible with the standards of human rights and the theoretical basis of this principle is the right of the accused and the interest of the society. Also, Islamic standards are not against this unquestionable principle of law, and examining the statements of the jurists shows that they had public proceedings in their minds as an assumption. Despite the fact that the publicness of the court's verdict has received serious attention in international human rights documents, it is not mentioned in the constitution, and what has been stated in the criminal proceedings regarding the announcement of the verdict of some crimes is not in line with the international regulations.

Criminal mediation is one of the innovations of Iran's criminal policy in the field of criminal proceedings, which is based on the idea of restorative justice. This institution was accepted by the Iranian legislator for the first time in Article 82 of the Criminal Procedure Law of 1392 under the criminological teachings of protective victimology. Victimization, compensation for damages and losses, decriminalization and an alternative to the legal system of prosecution are among the reasons for the tendency to use the institution of criminal mediation. The purpose of this article is to describe the methods of mediation in criminal matters and the criticisms of it. This research shows that there are different methods of criminal mediation, which leads to more use of mediation in the criminal process. With a comparative look at the Indonesian judicial system and a descriptive-analytical method based on library studies, the conclusion was reached that among the various methods of this institution, criminal mediation accepted in criminal policy, the type of community mediation along with judicial supervision with an emphasis on The facilitator's role is a mediator, which can be used directly in some cases and indirectly in other cases. Suspension of crimes and agreement between the parties of the case is one of the most important conditions for using this institution in Iran's judicial system. In this regard, to expand and develop the use of this institution, the regulation of mediation in criminal matters was approved by the Board of Ministers on 7/28/2015. With a comparative approach between Iran and Indonesia, it seems like this; Although the approval and acceptance of criminal mediation is a good and desirable thing, but this has not been done properly and the legal requirements, including the certainty and certainty of the decisions taken, are questionable, and even the failure to reach an agreement and refer the parties to the judicial authority in some way It is considered the cause of delaying the proceedings and violating the victim's right. This requires that by clearly explaining the crimes subject to criminal mediation and adopting the rule of "pardonability of crimes" as a criterion for crimes subject to mediation in order to make wider use of the said institution and predict criminal mediation at the stage of execution of the sentence and specify the jurisdiction of the execution judge. Rulings to refer the matter to mediation and explain and describe the responsibility of the mediator in terms of criminal, civil and disciplinary liability in order to raise the position of the mediation institution as a friendly institution in lawsuits and in order to facilitate and speed up the process of justice, the necessary regulations and laws of the current issue be corrected.

Stocks are considered as one of the most important financing tools in the capital market. Equity may increase by doing profitable activities in a company or it may decrease due to business mistakes of that company. In addition, if a company does not distribute the annual profit from the sale of products or services to the shareholders, the equity of the company will increase. Joint-stock companies are considered one of the important commercial companies from the legal and economic point of view, which play a great role in the economic development of countries. Therefore, according to the effect of such legal institutions in collecting small capitals and reducing the volume of liquidity and pushing it towards production, creation, employment and achieving economic prosperity, governments have never been indifferent to such companies and by establishing regulations to protect the interests of the society. they do. A little reflection on the laws and regulations governing the activities of commercial companies, even in terms of the volume of these regulations, proves this claim well.The discussion about determining the nature of shares is of fundamental importance not only in terms of the transfer method; Rather, in terms of the method of arresting shares, determining the competent court and the governing law in private and domestic international law, it is also very important. the most important legal challenge regarding stock transactions is to explain the nature of this security. The opinions of jurists are scattered about the nature of stocks and related issues. The existence of different views on property rights has led to the formulation of different theories about it. These theories basically deal with how the relationship between ownership shares and economic units is reflected in property rights accounts. The most important theories of property rights that have been studied in this research are Proprietary Theory, Entity Theory, Fund Theory and Commander Theory. All property rights theories attempt to explain and predict the relationship of owners and entities to property accounts. These theories are also useful in interpreting rights and legal shares in property accounts. However, none of them alone can provide a basis for defining and interpreting all the events of economic units. In English law, the legal nature of stocks is influenced by the theory of obligations and the famous division of objective and religious rights, therefore, as one of the achievements of the present study, we can point to the explanation of the nature of stock rights from the perspective of objectivity or religion by emphasizing these theories in this way; Entity Theory, Fund Theory and Commander Theory give stocks a religious nature.

Most engineering disasters are predictable and preventable, therefore, by adopting correct policies, many violations and crimes in the construction industry can be prevented. Based on the descriptive-analytical method, this research, first explores the existing literature to find out why engineering crimes and violations occur from the perspective of criminal sociology, and then it provides practical and preventive suggestions for non-normative behaviors in the engineering world. Various researches in the field of domestic and international engineering show that the construction industry has tremendous potential for committing crimes and obtaining illegal financial profits. This research clearly acknowledges that the working conditions in the construction industry, compared to other professions, are very chaotic and critical, and its deterioration has taken on a wider dimension than in the past. are in a crisis situation, the emergence of criminal or criminal behavior is a natural and predictable reaction.On this basis, engineering activities should be legally supported in some way so that the necessary economic minimums are considered for engineers. Factors such as the incorrect process of training engineers, belief in the correctness and rationality of criminal behaviors, and especially adherence to the goals and efforts for the survival of the engineering group, and economic factors are among the most important crime-causing factors in the field of engineering. By studying the theories of criminal sociology and its teachings, this research has come to the conclusion that in order to prevent the occurrence of engineering deviations, first of all, the laws must be formulated in such a way that the engineering community has fair legal protections. Secondly, engineers should not be considered as cheap labor based on the economic determinism of labor market imbalance in the discussion of service supply and demand. Thirdly, continuous education and culture building should be the priority of engineering policies. Fourthly, the government, as the owner of power, should not keep all the benefits for itself, and in construction contracts, the balance of contractual exchange should be observed. The results of this study showed that, Primary and primary prevention should be included in crime prevention policies for engineers. This means that efforts should be made so that engineers do not tend to commit crimes, especially after graduation and in the work environment. The first goal in this method of prevention is to improve the living conditions of engineers in order to prevent them from becoming criminals, and the other goal is to produce and promote values that provide or improve healthy intra-group and out-group relationships in interaction with society.

One of the most important areas of civil liability, civil liability is derived from possession lawsuits, during which the aggressor; By committing a behavior on his own or another's property, he causes damage to others. In England, possession lawsuits can be filed in the form of two lawsuits: aggressive (adversary) and private (private) possession lawsuits, and contrary to Iranian law, there is no provision for obstruction lawsuits, and this lawsuit is also in The format of the nuisance suit is brought up. Now, the basic question is, which of the well-known and governing theories of civil liability does the English legal system follow in dealing with possession claims (opposed possession and nuisance). To answer the question, the case law of England, which is the main basis of the country's legal system, must be examined.This article was written with the aim of civil liability arising from possession claims in English law and the possibility of adapting it in Iranian law. In terms of the purpose, the present research is an applied research, and in terms of the implementation method, it is considered part of the descriptive-analytical research. The library method was used to collect information, and the data collection tool is mostly written and theoretical. The findings of the research showed that the seizure lawsuits in Iranian law include: aggressive seizure lawsuit, nuisance lawsuit, and obstruction lawsuit. Like the contracts, the legislator has stated the common and specific conditions and elements of these claims, and the persons and judicial authorities are obliged to submit them under the same title by meeting the elements and conditions mentioned in the law. The immovable property of the object of possession, the claimant's prior possession, the defendant's right of possession, and the aggressiveness of the defendant's possession are common elements of all three lawsuits. On the other hand, the findings of the research showed that the civil liability resulting from possession claims in the laws of Iran and England is based on fault. Of course, in the case of aggressive occupation, the plaintiff does not need to prove the occurrence of damages in order to claim damages and compensation for the days of occupation, and mere occupation without consent is sufficient to fulfill the responsibility of the subsequent occupant. However, in the case of nuisance both in Iranian and English law, the claimant must prove the damage, which means that in addition to interference and disturbance in possession, damage is also one of the elements of filing a liability claim. English judges, by analyzing the elements of similar lawsuits, apply the result in similar cases, and over time it becomes the custom of judges without waiting for its legislation by the legislature.