فصلنامه مدرس علوم انسانی
سال هشتم شماره 4 (پیاپی 37، زمستان 1383)

The public order is one of the rules that restricts individual contractual will which has an important role in all the legal systemes. This rule that in the foreign legal writings about contracts, is studying under "the causes that invalid contracts" has not a similar state in the legal systemes of England, France and Iran. In all the adove mentioned systems, the contracts which violate public order or morals are null and void but they differ in respect of the effects of this invalidity. In all of them, enforcement of contract is impossible but there are differences in respect of possibility of restoration of consideration and possibility of brining a suit for compensation. In both England and France Law systems there are exceptions about possibility of restoration of consideration and compensation whereas there are differences between them about the type of these exceptions and the situation in which these exceptions are acted. In the Iranian legal system the enforcement of contracts Against public order is impossible also restoration of consideration and compensation (without any exception) seems to be impossible. In this article, writers have tried to discuss these subjects and criticize the traditional theory which has an age old place among Iranian Lawyers.

Criminalization of certain deviances was brought forth in the light of the punishment concepts of Jeremy Bantam, but further developed under the influence of the positivism school teaching, especially the Dangerous mood theory, and for the time being, is recognized as the "preventive crimes". Nowadays, the criminalization of such a behavior does not conform to the standards offered by the criminal law philosophers about criminalization. Considering the standards for reasons balancing, social compliance, prohibition of imposing damages on others and filtering what concerns the criminalization, in other to recognized a behavior as a crime (crimnal act) it is essential that First,the concerned behavior be inconsistent with the ethical principles and values of the society. Second, the application of non-penal actions would not be effective in counteracting that behavior. Third, there should be executive and practical grounds for fierce encounter with that behavior. As the aforesaid indications have not been observed in the criminalize tion of the preventive crimes, considering them as a crime can not be rationally justified. On the other hand, the nature of such deviant behaviors is so that through application of non-penal actions and preventive means, their extent can be limited. Therefore, as the first step, we should overlook the suppressive penal actions when confronting such behaviors and recommend the exercise of means law as the last penal of the Social Defense System. Iran criminal legislation does not follow a particular logic concerning such behaviors. Some of these behaviors in the Iranian Penal Code have been referred to as criminal acts, despite the fact that they are far beyond any criminalization logics.

Today in various countries around the world, forensic modicine with its laboratories. Plays an important role in judicial and justice issues. Forensic medicine is a set of procedures which specialist physicians take in order to discover and determine the crime and the trace of the accused and to prove or disprove the claims of the claimant or defendant. In judicial verdicts, Islamic law and jurisprudence in order to distinguish many crimes and determine damages to body parts the case is referred to a just specialist physician. What is the position of forensic medicine in Islamic law and jurisprudence and what is its precedence in Islamic law, jurisprudence, Hesbeh issues and Islamic medicine? How much is its validity from the viewpoint of jurisprudents? How valid are the depiction methods and tools of forensic medicine and in what issues of Islamic law and jurisprudence has these issues been referred to physicians? Does issuing of verdicts based on evidences and documentation have a legitimate ground in Islamic law and jurisprudence? And could forensic medicine procedures such as finger printing and blood tests used for this? This article clarifies these issues.

The issue of "victimless crimes" or "consensual crimes" is a new issue, and at the same time a very important one in the realm of the studies regarding "victimology", as a now branch of criminal sciences. The novelty of the issue, specifically in the Iranian criminal law, its vagueness, and the relationship of victimless crimes with some criminal policy issues like criminal proceeding, criminal statistics, fear of crime, crime prevention and restorative justice reveal the significance of the point. This article deals with the most important issues in this regard, namely defining and realizing samples of this kind of crimes, in order to get a better understanding and recognition of the concept of "victimless crimes" or in other words "crimes without direct victim", and also to determine the samples of this kind of crimes. The article deals also with the basic elements mentioned in the definition particularly the triple elements, that is victim, damage and consensus Finally, the article examines the relation between morality and victimless crimes and compares them.

It is a longtime that arbitration has been recognized as an impressive disagreement resolution in the international contracts. However, because of the absolutely technical features of some contracts, for example international construction contract, and also necessity of their issue completion in a determined time, the arbitral institution cannot fulFill what they ask for, especially conventional requests or anticipations. Therefore, after 1957, the international organizations and institutions, active in the domain of international construction contracts, including international federation of consulting engineers (FIDIC): Fédération International Des Ingénieurs Conseils), recommend a number of the typical contracts which, via the pre-arbitral institutions, forecast the resolution of the probable disagreements between master and contractors. These institutions have two notable and leading features: first, the persons who are delegates of disagreement resolution, are essentially engineers or experts on the subject of the argued contract; and second, their will and decisions are indispensable- binding though the possibility of complaint against their decisions exists in arbitral court or courts. In this research, after a brief presentation of pre-arbitral institutions, we proceed to distinguish them form arbitral institutions and finally, we consider and analyzed the effects of pre-arbitral involving stipulations on the both partie's right to call on the arbitration.

The subject of obligation and possesstion should be definite, for instance, in a bilateral contract, consideration must be definite and if it is not so, the contract will not be concluded and that makes it void (Article: 216,338 and 384 civil code if Iran). The consideration may not be mentioned either due to carelessness or oblivion or when the two parties intentionally refuse to mention it in the contract and leave it to expert's view, customary law, common practices or well-known norms to determine it. When determination of consideration or price of a contract requires expert surveying and estimation or accounting operations, the involved parties are compelled to leave this task to a later time and not to mention it in the contract. The question in such a situation is whether these kinds of contracts are valid and binding or either of the parties can refuse to perform his/her commitments by resorting just to the pretext that the contract is invalid or the agreements is defected. At ention must be paid to the fact that not mentioning a price in the contract does not always mean that the consideration is indefinite and it depends on the agreement between the parties involved. Agreement on the methods and rule of determining the subject of obligation or possesstion, that is to say, specifying the rule and criterion for determining the subject of obligation or possesstion is sufficient because it is thus determined with that rule and such contracts cannot be considered as null and void with the pretext that the consideration is indefinite. In legal obligations and possesstions assigned by the law, it is usually preferable to determine methods and mention an exact price or cost. Not mentioning the subject of obligation or possesstion does not nullify the terms or the contract and the terms even in the Islamic jurisprudence and as it is quite well known they do not consider the indefinite condition as nullifying the terms or the contract. Since the indefinite condition cannot be considered a valid condition because obligation of an obliged person to perform an indefinite act is impossible, the condition shall thus be null and void but in cases where the ambiguity of the condition can be removed in future and it can be performed, the condition is not null and void.

By taking into account the importance of the family and its role in the establishment of human society and the emphasis placed by Islam on its protection and stability, neglecting and failing to deal with the new issues appearing in this filed is unjustifiable. One of these issues is artificial insemination. Which needs to be examined from different angles: legally, morally, psychologically, etc. the right to have children, in cases where the spouses or one of them is infertile, should not be an excuse for ignoring moral principles and for having children through unnatural means or out of wedlock. In the last century vitro fertilization and other artificial insemination techniques were examined by Western scientists in detail. The birth of Louis Brown in 1978 was the positive result of these examinations and researches. In this paper, the Islamic view on artificial insemination, based on Shiite law, from the point of view of legality or illegality, lineage, inheritance and marriage is discussed. This paper highlights different aspects of artificial insemination and clarifies some controversial questions in this respect. The criterion for the legality and illegality of artificial insemination, according to the majority of Islamic jurisits, depend on the existence or non-existence of a lawful relationship between a man and a woman. A child born from an unmarried couple, or born through artificial insemination enjoys certain rights, such as lineage, inheritance, maintenance, etc.

Shia jurists, view based on what narrate, the Prophet's household (p.u.t) make between the apostate born to a Muslim and the one born to a non- Muslim and then became a Muslim. The point of the distinction is that the former (murtadd fitri) is not asked to repent and the punishment (hadd) will be imposed on him while the latter (murtadd milli), is asked by the judge to repent and if he did, the punishment will be lifted. Now, if murtadd fitri happened to repent before introducing evidence – without duress and coercion – would it be of any help? Most of the jurists believe that this repentance is of no avail and it will not lift the legal consequences such as execution, separation from espouse, division of property among heirs. In this paper, I will first examine the evidence of such precept to conclude the if murtad fitri, repents before the introduction of evidence, at least the penalty (hadd) for apostasy will be lifted and the authorities fall short of covering this case. Then the issue of Istitabat (asking repentance) of apostate and its duration will be briefly discussed.