مجله حقوقی دادگستری
پیاپی 127 (پاییز 1403)

The legal requirement for draft, and the delivery of the cheque into the Sayyad system, is prescribed in Cheque Issuance Act; article 21, note 1. Regarding to cheques that not submitted in Sayyad system are not govern under Cheque Issuance Act .The situation of this non submitted cheques in compliance with holder rights related issuance and delivery is needed to review and it seems with there is legal gap resulted casue dispute in the judicial procedure. The major requirements of the cheques has been determined in Tejart Act, and the changes in the Cheque Issuance Act has caused legal disputes in this requirements; in this matter the aim of the legislator and legal phrases has a single significance as to the abrogation or not implied abrogation Commercial Act.implied abrogation is an exception because contrary to express abrogation; in this situation conflict in a single issue is attributed to the legislator,The purpose of the legislator was to supervised the cheques in circulation and increase their credits, for example the use of stolen and lost cheques were limited. On the other hand, the terms of the above regulation have only excluded the unregistered cheques from the scope of the Cheque Issuance Act, and in the sense of negating the possibility of the flow of the provisions of the Commercial Act on this cheque. In the present research, emphasizing on the judicial procedure and existing disputes, the examples related to the present discussion are analyzed analytically

Based on the application of Article 230 of the Civil Law and the last part of Article 522 of the Civil Procedure Law approved in 1379, it is stated in the unanimous decision No. 805 dated 16 January 1399 that individuals can agree on more than "reduction in the purchasing power of money" and "monetary benefit". ; An analysis that makes money in its modern sense, which is considered as a means of exchange and public storage of the value of goods and services and a debt document of banks and governments, private individuals can create money for "nothing" alongside them. In this article, based on the principle of the necessity of uniting the case of debt with the case of surrender and that "natural benefit of money" is a separate thing from "decrease in purchasing power of money" and all of them are different from "usury", it was proved that the compensation of "decrease in purchasing power of money" And "natural interest (interest) of money" is considered one of the meanings of today's money. However, it is contrary to public order that the parties can agree on more than them. Because it leads to interference in the debt documents of governments and banks. Therefore, what is stated in the unanimous vote is subject to serious criticism. It is hoped that the judges of the Supreme Court will revise it in a new decision considering its inflationary effects.

In international commercial arbitration, the parties to the dispute are free to select the law that governs the substance of their dispute; provided that the chosen law is not contrary to the public order and peremptory norms. In case the parties have not chosen the law, which governs the nature of the dispute, the dissention arises. The absence of the selection of the applicable law governing the dispute slows down the arbitration process. In this case, the "arbitrator" must determine the law according to which the nature of the case is heard; due to the involvement of an international body in the dispute and the silence of the parties, the law governing the nature of the dispute is not clear from the beginning. Based on what is mentioned above, the "arbitrator" confronts several options which are discussed as the approaches in this research paper; meanwhile, the orientation of the countries and the arbitration organizations towards the approaches included the restrictions of such selection is examined. This article, while conducting a comparative study with the library method, relies on the assumption that the arbitrator has the same will as the parties in choosing the law that governs the nature of their dispute.

Article 24 of Financial Convictions Enforcement Law, approved in 2015, has enumerated the minimum requirements for the continuation of an ordinary life, such as "the debtor's required telephone," in the form of debt exceptions and exempts it from seizure. The way of inserting the phrase "Required Phone" in aforementioned law is such that in practice has caused challenges during the enforcement of the sentences. The main question of the current research is the necessary circumstances for identifying a phone as an exception to debt, and the conditions of its seizure. Using a library method and a descriptive and analytical approach this study reaches the answer that the example of " required phone " includes its belongings too and the primary criterion for identifying the need and the dignity of the condemned person will be the reasonable criterion and in special cases, personal criteria can also be taken into account. Also, if the phone is needed by the condemned person and is in his dignity, or if it is a business tool and furniture needed for his life, then it is supported under debt exceptions. In cases of luxury and unreasonableness of the phone and its accessories, multiplicity of sim cards of the condemned person, whether it is a loan, having an obligation to return the phone, or introducing the phone by condemned person, seizure becomes possible.

The American criminal justice system, as one of the pioneers in identifying criminal responsibility and determining various forms of criminal enforcement guarantees for legal entities, can serve as successful model for other criminal justice systems. Providing appropriate enforcement guarantees for legal entities and offering solutions for the precise determination of each of these enforcement guarantees can be considered among the characteristics of the American legal system.The present paper adopts an analytical-descriptive approach and utilizes library sources to introduce and evaluate each of the criminal enforcement guarantees in this country. Furthermore, in line with the discussion, it examines the legislative gaps in the field of criminal law in Iran from a comparative perspective.The analysis of the enforcement guarantees present in the American criminal justice system indicates that they are designed to ensure the objectives of reparation, punishment, and prevention, taking into account the types of legal entities, the nature of their activities, the level of risk, annual financial turnover, and the extent of harm caused. Along with the guidelines for determining penalties, these guarantees aim to achieve the desired goals and consequences of the criminal justice system. However, despite the diversity of criminal enforcement guarantees in the Iranian legal system, it has failed to provide a suitable categorization of enforcement guarantees for legal entities, unlike the American legal system. Drawing inspiration from the American legal system in certain aspects of criminal enforcement guarantees can help address legislative gaps in this area.

By issuing a restraining order based on the lack or insufficiency of evidence, the possibility of re-prosecution of the accused is foreseen according to Article 278 of the Criminal Procedure Law on the basis of ensuring judicial justice and dealing with criminal behavior. On the one hand, the legislator seeks to achieve justice for the persons who were not able to access them at the time of the hearing. On the other hand, it seeks to deal with breaking the norm and prevent unjustified and early release of the perpetrator from the clutches of justice. Despite this, the ruling of this article is exceptional and the principle that the accused cannot be re-prosecuted unless the principles that govern it, which are in line with the goals and general principles of the criminal procedure, are applied in the process of prescribing prosecution by the judicial authorities. The purpose of this research is to know the basics and principles governing the re-prosecution of the accused. Therefore, the fundamental question is, what are the principles governing the prosecution of the accused and is the judicial procedure determined to strictly implement these principles? This article, with a descriptive analytical method and by studying 19 re-prosecuted cases in Iran's criminal justice system, explains in detail the principles of the validity of the sealed order, the reasonableness of the process of re-prosecuting the accused, the correspondence, independence and priority of the court's judgment against the prosecutor's office, the possibility of re-prosecuting the accused by the court and The principle of the independence of the investigating authority against the judgment of the prosecutor and the court is the governing principle for the application of the prosecution of the accused And at the end, it is found that the judicial authorities involved in the application of the prescription

Evidence of proof has been clearly distinguished by the Iranian legislator in two area, civil and criminal. Some evidences such as confession, testimony and knowledge of the judge have been specified in civil and criminal regulations with the least difference in details, but some evidences such as Qasame have appeared with a narrow interpretation only in criminal regulations. Although criminal law has distinguished itself from civil law in terms of its purpose, nature and judicial system, the idea of using the same evidence system in the common domain of the two areas is not unlikely. For this reason, with the provision of the feasibility to demand Diya in the civil tribunals, invoking Qasame can be proposed as one of the means of proving the claim. In this research, with a descriptive and analytical method, while using the judicial procedure, the possibility to file a lawsuit for demanding Diya in the civil tribunals is endorsed, and following the adoption of this approach, the civil judge uses Qasame as a proof in the case of Diya, which is the intersection point between the civil and criminal tribunals, will be assessed. The findings of the research show that the non-exclusivity of evidence in civil matters, the absolute ability of the judge in handling all legal matters based on fixed rules, and the possibility of expanding the thinking of criminal proceedings to civil proceedings are the grounds for accepting Qasame as evidence in a civil tribunal; However, due to the incompetence of the civil court in dealing with the essence of the crime, the need for a narrow interpretation of the function of Qasame institution and the monopoly of some criminal tools to the criminal courts, the function of Qasame as a proof in the civil court should be abandoned.

Considering the ambiguities in the provisions of Articles 63 and 64 of the Administrative Justice Court Act, it is of particular importance to examine the limits of the jurisdiction of the Court's branches in dealing with the opinions of special administrative authorities. These ambiguities include the concept of "the presence of formal or substantive objections", "examination and adaptation of the issue in order to comply with the legal regulations" and "examination in terms of identifying the issue" in Articles 63 and 64, the lack of separation of the subject authorities in Articles 63 and 64, lack of attention to the multiple functions of some authorities, The lack of the task of the branches dealing with the decisions of the authorities is the subject of Article 64 in case of formal and procedural objections, Conducting legal proceedings instead of thematic proceedings or vice versa. A detailed examination and response to these uncertainties can help to improve the quality of proceedings and the justice in the Administrative Justice Court and improve the supervisory capacity of this institution to judicially control the decisions of the authority’s subject to Article 10 Clause 2 of the Administrative Justice Court act. The findings of this research, which was carried out with a descriptive-analytical method indicate that the recognition of dedicated administrative organization in terms of their competence and function and the separation of "administrative courts" from "diagnostic administrative organizations" on the one hand, and "legal" or "thematic" proceedings on the other hand, based on the type of authority and how to file a complaint The plaintiff can reduce ambiguities and improve the quality indicators of proceedings in this field.

The process of evolution and the series of changes and reforms in the jurisdiction of the Administrative Court of Justice in connection with the civil responsibility of the government has recently entered a new phase. In the way that in May 2023, we witness the most recent case of reforms by the legislator of the Court of Justice. It seems that in this amendment, taking into account the use of new words, a new territory has been defined for the jurisdiction of the court, which deserves scientific attention. The present article has addressed this question with the understanding of such importance: What are the lexical challenges of the legislator "administrative justice" in the framework of Note (1) of Article 10 of the Law of the Court of Administrative Justice? In answering this question using the descriptive-analytical method, the most important results are as follows: First; the keywords of the government's civil responsibility in this document are "violation" and "special" and without understanding these words, it is not possible to decipher and explain the issue of this type of responsibility. Secondly; Violation of the subject of this type of responsibility can be imagined when a violation of "law" occurs alongside a violation of "jurisdiction". Therefore, the words "law" and "jurisdiction" have a special function here and are not considered as two independent categories. Thirdly; since at the top of the note, it is specified that the jurisdiction of the courts is general, as a result, it can be assumed that in the new reforms, these courts are the most important candidates for creating the theory of government civil responsibility in Iran.

Many international treaties explicitly or implicitly require the determination of national authorities by the contracting parties in order to implement all or part of the treaty obligations, and therefore, it is important to study the process of determining national authorities. In Iran, only the legislative and executive branches have played a role in determining national authorities; In this article, in order to identify the strengths and weaknesses of the Iranian legislature's procedure in determining national authorities, we have analyzed this procedure in a descriptive-analytical way. The result of the study is that due to the silence of the Constitution regarding national authorities, the legislature has, based on the general competence of legislation, the authority to determine national authorities for all international treaties and institutions. Despite this, in many cases, the legislature has left the determination/changing of national authorities to the executive branch, which is critical, especially considering that some of these national authorities are non-executive. Anyway, comprehensive knowledge of the treaty, which is required to determine a national authority, is generally obtained for parliamentarians at the time of ratification of a treaty, and therefore, the most appropriate tool for determining the national authority is the Act ratifying the treaty, but the legislature in rare cases has used these Acts to determine national authorities. Meanwhile ratification of a treaty by the executive branch, which is allowed in some cases, and determination of national authorities in the text of the treaties, have limited the power of the legislature to determine national authorities.

The present study deals with challenges in the current structure of the Judiciary of the Islamic Republic of Iran regarding efficient allocation and proper management of financial resources. The findings of this descriptive and analytical study show that in effect the budgeting structure of Iran's Judiciary does not accept optimization and efficiency. Of major challenges of resource allocation are arbitrary allocation of resources regardless of long-term and middle-term planning, the lack of proper standards for measuring the performance of the plans and control of the results, the lack of fiscal discipline, the excessive influence of non-scientific bargaining and negotiations on the process of budgeting, relying merely upon incremental budgeting, failure to use of a suitable and efficient accounting system, the lack of accurate accounting information, the lack of transparency, and inefficiency of supervisory mechanisms of other powers on financial performance of the Judiciary. Also, the article proposes some suggestions and solutions to overcome such an undesirable situation.

The principles of judge's independence and supervision of judges are among the consensus principles governing justice, whose necessity and essential role in realizing various governance goals, especially in fair proceedings and judicial justice, is undeniable. Although this position has been emphasized in many types of research, there has always been a difference regarding the exact definition and concept of these two principles and their relationship with each other, and the mechanism of observing the principle of the judge's independence in the process of supervising judges. This article has investigated this issue with a descriptive-analytical method using library sources. At first, by examining and providing a detailed definition of the principles of independence of judges and supervision of judges. It has been determined that these two principles are not originally negating and violating each other. Still, they are complementary to each other under the condition of respecting the judge's independence in the different stages of supervision of judges, which is possible by following the principles. Then according to this, the principles must be followed in the three stages and pillars of supervision. It has been explained that the principle of independence of the judges should be respected to protect the judges.

With the aim of reviewing and identifying the indicators and designing a judicial development model, the current essay studies and explores the concept of judicial development. The method of study is qualitative and is performed in two stages, fist, in the form of a documentary and library study, second, using the Delphi technique for 20 experts and managers of the judiciary and justice administration of Tehran province as the executive administrators of judicial development field, who has been selected randomly, using a semi-structured interview tool. The concept of judicial development consists of the efficiency of the judiciary for independent, fast, accurate and specialized handling of judicial cases, efforts to prevent crime, development of justice and freedom, stability of structures and organizations and provision of human and physical resources, supervision of good Law enforcement and reformation and update of procedures, supervision and improvement of the performance of law enforcement officers, efforts to fight corruption and solve the crisis of legitimacy, development of electronic proceedings and technologies, and expansion of public participation and application of non-judicial methods of dispute resolution. Finally, judicial development was categorized into eight main dimensions and 20 main indicators on the basis of the scientific logic of indexing.

 Human dignity is one of the values accepted in theological and human schools that has had and continues to have a significant impact on moral, jurisprudential, and social and political issues. In the present era, which is also known as the era of defending human rights and human dignity, we need more than ever to correct and review the concept, effects, and requirements of human dignity. Different approaches to human dignity have emerged among different theological and human schools, and in the meantime, the religion of Islam and the Muslim holy book have presented precious foundations of human dignity; because in the eyes of the Holy Quran, man is a possessor of dignity by virtue of being a human being. The main purpose of this research is to examine the necessity and possibility of the divine nature of human dignity, and for this purpose, using verses of the Holy Quran and narrations, the definition, understanding, and purpose of dignity are examined from different perspectives. The most important findings of the research are that human dignity arises from the existential necessity of man. Finally, it should be emphasized that, firstly, from the point of view of " We have honored the sons of Adam", the most essential criterion of Islam's view of man is his inherent dignity as an accepted basis, in other words, it is a definite necessity. Secondly, human dignity arises from the necessity of his existence. Thirdly, considering the blowing the divine spirit forms in the creation of human beings, human beings certainly have dignity based on the principle of non-discrimination.