مجله نامه مفید
پیاپی 49 (شهریور 1384)

Although criminal law, which differentiates between legal “oughts” and “ought-nots” in criminal part, is necessary for any society, the practical implications of criminalization and evaluating its benefits and costs must not be disregarded. The followings are some practical limitations of expanding the criminl law’s scope that must be considered to criminalize a conduct: (1) the capabilities and capacities of the criminal justice system; (2) the avoidance of discriminatory possibilities; (3) the possible abuse in law administration; (4) the potential of weakening the moral power of the criminal law; (5) the possible reduction of the effectiveness of punishments; and (6) the potential of the criminogenic criminal law in the light of the labelling process and the criminalization of some conducts as well as the conformity of the criminal law with the public expectations and desires of the majority of the people. The disregard for these limitations and the mere reliance on theoretical and philosophical justifications for using criminalization may serioushy challenge the criminal law and its legitimacy, status, and role.

After the 1979 Islamic Revolution the Iranian legislature in codifying the rules governing Tazirat (judge made punishment), has had a Hodud-Based (God made punishment) perspective. It means that the legislature has often extracted the rules concerning plurality and repetition of crimes of Tazirat nature from those with Hodud character. This extraction by the legislature has been criticized due to shortcomings, ambiguities and sometimes inconsistencies with other rules of the criminal law. In addition, this has led to the emergence of some sharp conflicting views on the part of the Iranian lawyers.While analyzing those shortcomings, ambiguities and the conflicts, this article challenges this policy of legislature and argues that taking into account the fundamental as well as inherent differences, which exist, between Tazirat and Hodud, the criminal policy of the legislature is wrong.

In each country entry, residence and transit of foreign nationals are a question that has a direct relation with security and political system of the country. In this respect, each country regulates its laws relating to the entry of foreign nationals according to its necessities. The Islamic Republic of Iran, according to the Law of 1310 Concerning the Entry and Residence of Foreign Nationals, requires procedures such as visa which allow the State the possibilities of controlling the entry and the authorised residence of foreign nationals in the country. However, in recent years, because of the regional changes and the gap of a rigid control of the State in its long borders, many citizens of the neighbour countries without respecting the above-mentioned law entered Iran. Obviously, many of these people find the title of displaced or refugee people falling within the framework of United Nations high commissioners for refugees (UNCHR) and accordingly they find a legal status in Iran. On the contrary, the unauthorised entry and residence of foreign nationals are subjects which confront our State with many challenges especially legal challenges. In line with the duty of the State to preserve and defend the borders and the territorial integrity of the country, the best solution to reduce the negative effects of the presence of these foreign citizens is the reinforcement of the borders control system. Moreover, certain changes of the laws seem necessary especially with regard to the laws of nationality.

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is the most comprehensive international document on intellectual property embracing almost all subjects of the field equipped with a strong enforcement mechanism. Since one of the goals of this Agreement is to fill the gaps of the Berne Convention, the protection of computer softwares rights has been considered.Accession to TRIPS is mandatory for all WTO member States and since Iran is in the course of following the process it must accept the rules and regulations of TRIPS on computer software creator's rights even if it does not access to Berne Convention.In this article, we have tried to survey the position of softwares in TRIPS Agreement and Iranian Law, differences between them and the effects of Iran's accession to this Agreement.

Shiite jurisprudent's views on the father's authority over the marriage of his girl are different. Most of the jurists are of the opinion that she is autonomous in this regard. On the contrary, some argue that the marriage affair is in the hands of her guardian. Still others have adopted the view that both of them must share in the decision. Iranian Civil Law has not accepted the not-ever-married adult girl's autonomy. This paper, however, relying on the holy verses and authoritative traditions as well as on the fundamental principles of usul-e figh agrees with the girl's independent authority in marriage.

The Iranian High Council of Cultural Revolution has adopted a charter entitled, "Charter of Rights and Responsibilities of Women in the Islamic Republic of Iran", and declared it as a reference document for policy-making in cultural and social affairs and the basis of introducing and determining the status of women in the Islamic Republic of Iran before international fora.The very act and effort of the drafters of the Charter is appreciable. But it does not prevent from analyzing and critiquing its content. This short paper tries to reveal some of the main problems of the Charter.