مجله پژوهشهای حقوقی
پیاپی 61 (بهار 1404)

One of the important actions of the international community in the fight against terrorism is the formation of the special Financial Action Task Force, and as a result, it is necessary to explain its validity and the basis of its binding force in international law. The present study evaluates the binding recommendations foundations in the framework of the sources of international law and normative hierarchy, in accordance with Article 38 of the Statute of the Court, as well as the supreme norms and the establishment of Jus Cogens, Erga omnes obligations and Article 103 of the Charter. The article seeks to answer an important question: Relying on what (classic or modern) international law sources the recommendations are considered binding. in this article, the role of Financial Action Task Forces has been examined accurately and dealing with their execution by states and other international subjects as well as the recommendation capacity to be invoked.

Protecting the rights of consumers is one of the values and norms of human societies, which is supported by the legislators of different countries. The question raised in this article is the role of international and regional organizations in the promotion and upgradation of consumer rights. In response, the function of transnational organizations can be divided into two sub-groups, international organizations, and regional ones, each of which can refer to the document approved regarding consumer rights, prepare hard (enforceable) legal documents, or soft (advisory) legal documents. United Nations guidelines based on the seven fundamental principles of consumer rights systems include; supporting the health and safety of consumers, and their economic interests, providing sufficient information to consumers, educating consumers, giving consumers access to adequate compensation tools, creating consumer associations, and consumer participation in the process of decision-making and sustainable consumption, and the European Union among the consumer institutions has created the most advanced monitoring system for consumer protection at the global level so far.

One of the areas of investigation in the International Criminal Court is cybercrimes. Due to their nature, these crimes require a lot of sensitivity in the discussion. In this research, which has been done by descriptive-analytical method, the powers of the international criminal prosecutor in dealing with these crimes have been examined and judicial hybridization has been considered. Hybridization is used to refer to the phenomenon whereby there is convergence between different legal systems. The Statute of the International Criminal Court has a hybrid approach due to its influence from both the common law and civil law legal systems. According to this statute, the prosecutor must provide a combined performance within the framework of his authority. Therefore, the prosecutor can act multifacetedly by using criteria and according to the articles of the statute. One of these powers is to dismiss cases in the interests of justice. Another authority of the prosecutor is the possibility of modifying and changing the charges that he has previously brought against the defendants.

Specific developments are taking place in the world; "Populism or demagoguery" in its general sense is increasing in political decisions about social-foreign issues, and despite claims that populists are the real voice of the people, populism neither provides a more credible version of democracy, nor a corrective measure to re-align democracies with public opinions. Populists seek to ensure their stability by removing the four main pillars of democracy, including judicial independence, the political rights of disadvantaged groups, gender equality, and freedom of the press from their positions of power. Since implementing the "Principle of Universal Jurisdiction" in the legal system of countries is an example of judicial independence and achieving justice in international criminal law (domestic and international), and given the increase of international crimes and human rights, less need or less willingness on the part of governments to use this trans-regional principle is observed. This uncovers that populism is seriously undermining justice, human rights, democracy, and the rule of law. The main question is "How universal jurisdiction has been turned into a populist or demagogic institution in international law?" and "What factors have led to the slow implementation of the principle of universal jurisdiction in countries over the past decades to date?". These questions could be answered by analyzing the concepts of universal jurisdiction, its related laws in some countries, as well as evaluating the populism view in the political decisions of governments regarding implementing the principle of universal jurisdiction.

Overriding Mandatory rule is a new and widely used notion in the legal literature of Iran, however, neither its precise meaning has been explained and distinguished from similar legal notions, nor its scope of application has been defined. Therefore, avoiding mistakes in the use of this fundamental notion and unifying the research literature in this field are the main necessities justifying this research from the theoretical perspective. From the practical perspective, having regard to the fact that Iran has been dealing with the sanctions, understanding this notion and its scope of application could help to protect national interests in international commercial disputes related to the sanctions; with this explanation that the sanctions enacted by third countries are defined as an overriding mandatory rule. In this research, employing the descriptive-analytical research methodology, a meticulous examination of both library and internet resources relevant to the subject matter was undertaken. The research findings affirmatively demonstrate that “overriding mandatory rules” are substantial rules claiming to be governed in all situations defined under their scope of application, regardless of the governing law and its content; and have significant differences and distinctions with similar notions such as “the rule of conflict of laws”, “mandatory rules”, and “International public policy”. The scope of application of overriding mandatory rules is explicitly defined in the rule itself based on the location, time, and subjective criteria; if it is not, the dispute resolution authority should decide. Even in the cases where the scope of application of overriding mandatory rules has been defined explicitly, the dispute resolution authority shall determine the scope of application to the extent which is necessary to achieve its goals.

Mediation has become a popular method to resolve disputes and many countries all over the world try to encourage the parties to resolve disputes in this way. The main concern about mediation is enforceability of mediated agreements. The United Nations and the European Union have implemented the measures to solve this problem such as adoption of the European Union Mediation Directive (2008) and Singapore Convention (2019).The most important discussion in these two provisions is implementation of settlement agreement that is reached as a result of mediation. within a comparative perspective, this article explains how a dispute settlement agreement is implemented according to the Singapore Convention and the EU Mediation Directive. Also, in this article, the legal attitude of Singapore, as one of the first ratifiers of the Convention, and the approach of the Iranian legal system to the issue, according to the government's bill to join the Singapore Convention, have been investigated. Finally, specific proposals have been presented in the field of choosing the executive regime of international commercial dispute settlement agreements.

The report of the core principles governing systemically important payment systems (CPSS) is based on the fact that legal foundations and frameworks of any payment system have a strong influence on the safety, efficiency, and correct performance of payment system. One of the primary requirements for the optimal functioning of payment systems and management of settlement risks, especially its financial risks, is the establishment of clear and effective regulations. The second legal principle of the CPSS document is the requirement to enact such laws in accordance with the payment system transparency principle. This principle is not only emphasized by the European Court of Human Rights and many countries around the world, but also the principles of safety and efficiency agreed upon internationally in the field of payment systems. The study of Amendments to the Iranian issuing of check Act shows that the transparency principle of the CPSS document in the area of credit risks of the cheque payment system has been taken into consideration by the legislator in the amendment law of 2017. However, in the field of liquidity risks, it does not meet the requirements and conditions mentioned in this principle. In addition, the cheque issuance Act, as a special law governing the check payment system, does not have the necessary comprehensiveness and legal coherence. The necessity of re-reviewing the set of these laws in compliance with international principle governing payment systems, especially the second principle of this document, is inevitable.

Legal certainty in all aspects of a contract from start to conclusion is one of the key factors in welcoming people to international trade. One of these important aspects is determining the applicable law in the event of a dispute between the parties in contractual and non-contractual litigation that are related to the basic contract. the contractual disputes are like lawsuits for termination, the obligation to repair, the obligation to provide replacement of goods, etc., and among the non-contractual lawsuits are the lawsuits for violation, validity or ownership of the basic right. When these claims are made in the field of intellectual property, governments, because of their territorial rules, recognize the principle of territorial jurisdiction over such claims and refuse to apply the law of other countries on intellectual property. This paper examines the WIPO documents, in particular the two documents proposed by the American Law Institute and the Max Planck Institute regarding the law governing these claims. Finally, the solution is that in order to achieve legal certainty in determining the law governing intellectual property, states can end the conflict of laws by authenticating the party's autonomy. So, this is how countries can help the development of international trade and the predictability of claims in this area. Also, by comparing the two proposed documents, some suggestions have been made regarding the maximum certainty of the Max Planck draft.

Different interpretations have been given regarding the nature of public assemblies of joint ventures. But can he avoid such a decision? One of the most important decisions of the annual general meeting of the joint stock company is the distribution of profits among shareholders. The company's profit is identified and calculated by the company's managers and approved by the company's legal inspectors, and it is necessary that this issue and the method of profit distribution be approved by the company's general assembly.Dividend is generally the goal of any partnership and Dividend at corporation is a matter that in our legal system not deal with it enough. subjects that about dividend may be mentioned are quiddity of dividend, delay of payment of dividend after the decision of general meeting and losses of stockholders, deduction of legal reserve and its identity and revoke of general meeting from its decision. At this article I effort to analysis this matters and also try to present precedent of this subject.

Nationality has been described as a legal-political relationship between citizens and the government. This nationality is transferred more than other ways else by birth compulsorily. However, the wide range of asylum and migration across a country's geographical borders has led people of different nationalities to apply for new citizenship. But in order to obtain new citizenship, governments, based on the related higher policies, set the minimum conditions and criteria for obtaining citizenship, and finally, in the process that is known in the world today as "the Citizenship Test" or " the Nationality Test", Acquisition of these conditions is examined individually. The Islamic Republic of Iran has been facing asylum and migration from neighboring countries, especially Afghanistan, Iraq and Pakistan, for nearly 50 years. The guests who are present for approximately half a century and we deal with the third generation of this group of people in society. Conditions are also defined for granting Iranian citizenship to foreign nationals residing in Iran, and finally the degree of integration and knowledge of these individuals towards Iranian society is measured in a process called "the constitutional test". In this article, we have tried to analyze and evaluate the constitutional test with a critical approach, will follow by suggestions based on the results of the comparative evaluation with the citizenship test system in the United States and Canada.

The fattening of the judicial branch has caused this branch to perform its inherent duty. In order for the judiciary to be able to deal with matters of justice easily, it requires agility. By outsourcing the non-judicial duties of this branch and its related institutions, dealing with matters of a judicial nature will be properly handled in this branch. Some of its affiliated institutions should be outsourced from the organizational chart of this authority in order to comply with the correct principle of administrative structure. According to the constitution, one of the institutions related to the judiciary is the Inspection Organization, which is responsible for supervising the executive bodies.In this article, the authors' question is that "Where is the desired position of the organization in Iran's legal system and what is the role of the people in supervision?" The inspection organization is the supervisory arm of the judiciary, but since the supervision of this organization on the executive and administrative bodies also includes the judiciary, therefore the organization's supervision of the judiciary is reduced and becomes a hierarchical supervision. This is a problem for the legislative and executive powers if the inspection organization is placed under them. Therefore, the organization should be outsourced from the chart of the judiciary and added to the sub-group of leadership institutions, or the capacity of the private sector and public institutions should be optimally used based on the provisions contained in the judicial reform document.

In the second paragraph of Article 156 of the Constitution, the revival of public rights and the expansion of justice and legitimate freedoms are mentioned among the duties of the judiciary. But more than four decades after the adoption of the Constitution, in the codified laws, the concept and mechanisms of realization of public rights, the responsible authorities in this field and its challenges have not been determined and explained. Despite the fact that doctrines deal with concept and obstacles of revival of public rights, but does not address the relationship between the National Inspection Organization and the revival of public rights, its challenges and solutions. The purpose of this study is to address this issue. The research indicates that the second paragraph of Article 156 should be set as "implementation and expansion of justice through guaranteeing public interests and rights-citizens" and And the inspection organization should perform its duties under the supervision of the leadership (as the supervisory authority of all public organisations), and the 90th Principle Commission and the Court of Accounts should be integrated and organized in this organization. In this case, both active and comprehensive supervision and inspection will be achieved, and parallel work will be eliminated and public rights will be better provided.but this requires a review of the principles of the Constitution, including Article 174; However, in the current situation, the inspection organization should focus on addressing internal (soft) and external (hard) challenges to achieve the goal of revitalizing public rights.

The most basic issues in the management processes of the country is the issue of supervision and control, which plays a significant role in the creation of a service or product, and without it, the management process suffers from weakness and disruption. Therefore, management weakness caused by the lack of supervision of the actions and behavior of the organization, according to the scope of supervision, can cause serious damage to the area under the management of the organization, including the executive bodies of the country. In our country, in order to fight corruption and establish order and clarify the performance of government institutions and their employees, supervisory institutions are subordinate to the three powers and even outside of that establishment, each of which operates within the scope of their legal duties. The purpose of this research is to find a suitable solution in the fight against corruption and to clarify the performance of employees and executive bodies, as well as to improve people's trust in the government. , has been evaluated. By examining the legal duties assigned to the mentioned institutions, the General Inspection Organization of the country was recognized as an effective institution in the matter of transparency and gaining people's trust in the government. In order to achieve the objectives of the research, in addition to focusing on developing the performance of this organization and making maximum use of its existing capacity, there is a need to use the legal capacity of "people's institutions" by implementing Article 55 of the Executive Regulations of the Law on the Establishment of Inspection Organizations. The present research is presented in a descriptive way and its information is collected by library method and reference to documents and laws.

Following the raising of the birth rate in the 60 decade, the legislator began to formulate laws to reduce this rate, that he provided the ideal result in a short period of time. The legislator`s goal for balancing population, which was intended for a longer period of time, failed due to decreasing rapidly in the birth rate and process of this rate that continued for a long time. To rise the birth rate again and remedy its detriments, effective actions were not taken by legislator until the beginning of 90 decade. But with beginning this decade, an increasing in population laws can be observed. In this context, for example, we can mention The Protection of The Family and Youth of Population Law 1400(solar) and The General Social Security Policies 1401(solar). This article seeks to answer this question: How much capacity does The Protection of The Family and Youth of Population Law have to fulfill the goal of paragraph 8 of The General Social Security Policies? The authors have investigated this question by descriptive and analytical method and have found conflicting cases between The Protection of The Family and Youth of Population Law and The General Social Security Policies and they are on this theory that findings of this article show the consequences of this law that are not compatible with the aforementioned policies, although logically these two regulations were formulated to increase the rate of childbearing. This inconsistency can be seen in the conflict between some articles of that law and The Harmless Rule and using methods that lead to the ineffectiveness of the government in implementing its programs due to the financial burden arose as a result of the implementation of the law. Therefore, it seems necessary to amend The Protection of The Family and Youth of Population Law and remove its defects. In this regard, the authors have made suggestions for syncing this law with the paragraph 8 of The General Social Security Policies.

Mass and diverse production is the most obvious face of today's world. Despite Production has important role in development, it causes major climate changes and environmental pollution. Environmental pollution is one of the most important crises in today's society, an issue that threatens the fate of mankind and harms the human right to a healthy environment, which is a fundamental right. Pollution caused by production is mostly due to lack of standards, poor quality of products and lack of control. Pollution caused by production can never be reduced to zero; but with basic action, pollution can be minimized. The basic solutions are that in the field of production, one should pay attention to the goals of deterrence, apply strict production standards and update the standards. Products should be made from renewable materials based on environmental standards and in line with sustainable development. The "factor of pollution" of the environment, due to creating the source of pollution and violating the rights of others, has civil liability and must compensate for the resulting losses; because the right to access healthy environment is one of the fundamental human rights, and polluting production damages this right. In Iran's legal system, about the civil liability, the "fault theory" is the criterion. This theory is not effective for environmental pollution. Also According to this theory, Demand for environmental damage is difficult. For this reason "strict liability" and Conventional citation can be effective to reduce the environmental pollution of product.

Transshipment is a process in which cargo is transferred from one vessel to another in such a way that the process is divided into one or more separate voyages before and after transshipment which can be the origin of different responsibilities of carriers. The Carriers responsibility in the bill of ladings involving transshipment is very important because the responsibility of the carrier who issues the bill of lading may be different in case of damage in any stages of the voyages. In this article, we attempted to explain the limits of responsibility of carriers in bill of ladings involving transshipment relying on the Hague and Hamburg conventions as well as the judicial precedent. Unfortunately, despite the importance of this issue and the expansion of this operation in maritime transportation, the articles and books published in this field mostly focus on technical and engineering aspects of transshipment. Unfortunately, despite the importance of this issue and the expansion of this process in shipping, the articles and books published about transshipment mostly focus on technical and engineering aspects furthermore these conventions carrying different approaches in this regard, so it is necessary to examine the issue in a more transparent manner. It seems that the responsibility of the carriers in the transshipment process will be different based on the type of bill of lading or governing law of it in such a way that by changing the provisions of the bill of lading, the responsibility of the carriers can also change.

Every person can prevent the unauthorized appropriation of their names, likenesses or other aspects of their persona. Today, this right which is called right of publicity, has found commercial value and monetary function in all societies. Therefore, at first glance, it may seem that we must regard this right as an assignable, descendible and waivible right, just like other properties. But this right is also related to different aspects of personality. So, as well as property, right of publicity is essentially a personality right which has none of the characteristics mentioned above. Furthermore, right of publicity is basically used to influence consumers in advertisements. So, the legal prerogatives we take into account for celebrities, must not make it possible to induce people and give them false information about products and services which are advertised by them. In other words, in legal deliberation of this right, we must take public order and personality rights into mind as well as its monetary function. This article will seek a way to modify proprietary aspects of right of publicity with respect to personality and public order.

Changing or correcting the date of birth is one of the important and basic issues in the field of civil law, which despite its importance and many plans in the administrative and judicial courts, has not been sufficiently considered, examined, and explained, therefore, its realization is necessary according to the case. Legal conditions are possible through three references and five methods. One method is to act through the commission to determine the age of the subject of the single article of the law on preserving the validity of registered documents, etc. Another method is to request the Dispute Resolution Board of the Civil Registry Office and the third method, which is actually the continuation of the process of obtaining the right through the previous method, is to protest the decision of this authority before the court and request its violation and accept the request from the court. The fourth way is to file a lawsuit to change or correct the date of birth before the court and the last method is to file a lawsuit to cancel the current registry document and issue a new registry document with the actual date of birth before the latter authority. In all cases, according to its type and the competent authority, the request is subject to the fulfillment of legal conditions and the presentation of justified evidence to the investigating authority.

One of the involved issues in precedent for Deficiency of the rules is dispossession lawsuit aboat Joint property. This lawsuit is subject to Special rules as such recognition and Solving Its ambiguities realizes Justly trial. So we started writing this article and The consequence was that in Judicial process; Judges do not have certain criterion for cognizance the ownership of the claimant and recognition the defendant in this lawsuit; Also, at the time of death or disability or change of one of the claimants or multiple defendants, they are confused; And in the stage of enforcement of judgments, these ambiguities were more be revealed So that How to deliver and manage the joint property and determine the standing property have serious ambiguity. In order to resolve these ambiguities; We hang on Article 43 of the Civil judgments enforcement Act and General Assembly of the Supreme Court vote No. 672 and Its defects were solved with Acceptance of two principles “The result of the dispossession lawsuit aboat Joint property transmits to all owners” and “Resolving disputes between partners depends on permission”.

In today's age, the right to compensation is considered one of the general principles of law, according to which, every person who suffers a loss, has the right to compensation for the damage caused to him, as well as a person who is responsible for the damage caused to another person. Be, has the legal and social obligation to compensate for the damage caused. Undoubtedly, compensation for losses from an economic point of view should be done in the easiest possible way with the highest social and economic efficiency. The approach of playing the role of the cause of loss in compensating for damages with the satisfaction of the injured party based on good faith in objective compensation for damages that objective compensation is possible; After issuing the verdict and during the proceedings or even without filing a lawsuit, a good quality method of compensation is that In this research, its economic foundations with the analytical-descriptive method, with the realization of full compensation for damage and the realization of the goal of prevention and cost reduction (by increasing benefit), will promise the economic efficiency of this approach in the compensation system.

Article 499 of the Islamic Penal Code approved in 1392, the criminal legislator has removed the description of the loss of will contained in Article 326 of the Penal Code of 1370 regarding actions against oneself due to the intimidation of another, and has considered the only condition for the fall of the responsibility of the intimidated steward is his lack of discretion when committing the acts. In the meantime, the question can be asked whether the voluntary actions of the fearful officer in the situation of intimidation caused by another person can be considered as a justification for the legitimacy of the crimes against him in such a way that the results of the incident can be attributed to the responsible person. The result of the reflections is that at least three different approaches have been proposed regarding the detailed question, and it seems that the second theory is favored by the criminal legislator. The first approach tries to prove the absolute guarantee of terrible people by insisting on the "if it were not" criterion. The second approach, by focusing on the "voluntary involvement" of fearful people in entering the crime and insisting on "certain current indeterminacy" on the part of the fearful person, in contrast to the repulsive person in the state of reluctance, believes that there is no absolute guarantee of fearful people. The third approach, with the criterion of "predictability of danger" in addition to "conventional rational behavior towards creative panic".

This article seeks to provide a sustained treatment of the complex role that equality plays in procedural thought. In this situation we are faced with two mentalities about procedural equality in the judicial process. Firstly, procedural equality is an inevitable necessity, and secondly, how this ideal concept should be considered in the design and evaluation of all types of judicial systems. However, due to the lack of a precise definition, we are not completely sure what exactly is meant when the concept of equality is expanded under the rules of procedure, and in fact, we are confused due to the consequences caused by the apparent branches of procedural law. In short, we know that we cannot have a fair trial without procedural equality, but we are not sure what it means exactly? This double rhythm has shaped the discussions of procedural equality in academic literature and judicial procedure. This article aims to examine the obvious and complex role played by equality in criminal and civil proceedings.