فصلنامه مطالعات حقوق خصوصی
سال چهلم شماره 4 (زمستان 1389)

One of important subjects in the civil procedure is the dispute in competence of judicial authorities. The title of chapter 2 of part1 of the civil procedure code, enacted by 1379 (articles 26-30) is the dispute in competence and method of settlement of it. There is no different between inherent and local competence in this chapter. Moreover, there are not regulations about relative competence in that chapter. It seems that legislator alike some of lawyers has thought that local and relative competence is one category, while they are two different categories. In this article, we consider the concept and kinds of disputes in competence of judicial authorities and methods of settlement of these disputes.

The effects of challenging the arbitral award in the country of origin is discussed in two stages. In proceeding stage in court, as the challenged award is binding, this challenge that the court proceedings in the country of origin are pending does not prevent enforcement of the award in other countries. Suspension or annulment of the award in country of origin has been accepted as one of the grounds of refusing of enforcement in national laws and international instruments. However, there is new trend in international commercial arbitration practice in favor of "enforcement of annulled awards" based on the spirit of the New York Convention that has been accepted in some countries jurisprudence.

According to the famous theory in Islamic jurisprudence regarding diya, the diya of a woman, generally, is considered as half in comparison with a man’s. To prove it there are some reasons attributed to quran, Sonnat, Idjma and qeas. In spite of the famous view, there are a few of early jurists who argued for being equal of dyia for both woman and man. Their rationale is the generality of the quran’s verses concerned, the weakness of the original of related sonnat, inconclusiveness of the alleged idjma, and the in correction of qeas. The latter, which has been supported by contemporary theorists and also has affected high level policy- makers, is in consistent to the common spirit governing and aims of Islam, on the one hand, and closely matches the existing public demands and current requirements, on the other hand. This paper, criticizing the famous theory, tries to amplify the theory of equality between the woman’s and man’s diya.

Some contractual provisions tend to deprive insurer from his right of subrogation. These provisions are found in one of three relations:1-insurance policies; 2-contracts between insured and third parties; 3- between insurers. The article examines various kinds of these provisions, their nature, scope of their validity and their positive and negative effects on third parties with a comparative view. The underline idea of the author is that when an insurance policy contains a waiver of subrogation in favor of third party, this clause must be construed as liability insurance in his favor and not as an exculpatory provision in his favor. The main result of this construction is that when the liability of third party is covered by his own insurer, the liability must be divided between two insurers according to the rules of double insurance.

Some of the imperative qualifications about witness, are for amount of apprehension and sense of witness; e.g. be maturity and sensible, and some of them are for confidence to witness e.g. be just. Holding the condition of justice of witness has be unanimity of votes by the jurists. But this matter, is just the good conduct or avoidance the faults or avoidance them from firm state or affective firm state that abet the person to piety and humanity, is dissidence between the jurists. In summation of said point of views, may be said just character of minimum sensual of witnesses. Proving it isn’t difficult. Continuity of piety and temperance and norm conduct in society is idealistic state that called just firm state. Criterion of it is customary state of witness.

There is a long-standing rule in Iranian Civil Procedural system known as “The Rule of Maane Tahsile Dalil” {preventing judge from taking evidence} being equivalent to “The Rule of Judge Neutrality” in European Law. According to this rule, the civil judge administer the evidences passively, namely, he/she can not hear the evidences unless at the request of the parties. Traditionally, Iranian jurists have been regarding the principle of impartiality as the base of this rule without distinguishing it’s difference from rule of neutrality. For the first time in the Iranian legal literature, this formal essay aims to analysis the western rule of Maane Tahsile Dalil and the Islamic rule of Maane Talghin Dalil and deals with the differences and outcomes of the principle of impartiality and the principle of neutrality. Finally, this essay concludes that, on the contrary to the traditional view, what forms the base of the Rule is not the principle of impartiality but it is the principle of party-disposition. Indeed, the Principle of impartiality constitutes the base of the rule of Maane Talghin Dalil {suggestion of evidence}. In addition, the rule of judge's neutrality has been replaced by the principle of cooperation.

Shia’s political jurisprudence has experienced some ups and downs along historical developments. In this context، Safavi Age is an era that Shia’s political jurisprudence has taken new approach and the Shia’s public jurisprudence has become prosperious. Because of special politic conditions of previous eras,، many subjects related to Shia’s public jurisprudence hadn’t found opportunity for being discussing. With being made available of appropriate field، these matters must be reviewed and fulfilled. Thus، shia’s jurisprudence in the part of public law-especially in the field of constitutional law - has had salient evolution. The essential question in this article is on how public law within shia’s jurisprudence in Safavi Age has transformed and evolved?

Article 141 in the constitution stipulates,”The president, his deputies, ministers and government employees cannot hold more than one government position, and it is forbidden for them to hold any kind of additional post in institutions of which all or part of the capital belongs to the government or public institutions, to be a member of the Islamic consultative assembly, to practice the profession of attorney or legal advisor, or to hold the post of president, managing director, or legal advisor, or to hold the post of president, managing director, or membership of the board of directors of any kind of private company, with the exception of cooperative companies affiliated to the government departments and institutions. Teaching positions in universities and research institutions are exempted from this rule.” This article, considering the statuary law and juridical principles, poses the question whether members of faculty can at the same time serve as lawyers.

Duration of human generation and their health are condition to preservation pure environment and enjoyment from species fauna, contemporary with the permanent revenue and proportionate of them. Among the most important wildlings on the biosphere are games so that steady down of them by legal management and using the legal sanctions; especially the criminal option is necessity. In the national criminal law in order to harmonious with the environment standards in the international treaties, hunt, capture, purchase, Salem, trade, carrying, expose, export wildlife and their parties, are crimes and therefore sentence able. Criminal protected various in the criminal law in ordnance with the categories (ordinal, protected and endangered to extinction) habitat (protected area, asylum wildlife, national park) and instruments are ranged.

Bottleneck in state courts and consequence resulting form it and the advantages which the disputes settlement has outside the court for governments and especially the parties to dispute led to increasing promotion of arbitration and use of new method of dispute settlement which are described as “Alternative dispute resolution” (ADR) are described. Meanwhile, many of this method settle the dispute based on the expert opinion. Unlike traditional method that expert opinion as one of the evidence of prove will be considered, in this methods expert opinion settle dispute directly. In other words, while in the judicial proceedings and arbitration, expert in distinguishing right from wrong and pronouncement of award will help arbiters and judges in new methods expert opinion will settle dispute such arbiter or judge’s award.

Nowadays, technological development and the appearance of new informational and communicational devices have been lead to new methods for communication and generating and storing of data. The growth of using of these methods in commercial and daily connection has caused a new version of evidence called electronic evidence.Although the nature of electronic and paper evidence are different, the electronic evidence fulfills the legal requirements for validity of evidence with technical methods. So, Electronic Commerce Act (2003), equaling data message and electronic signature with handwriting signature as the same thing, recognizes electronic evidence as new form of evidence and equals it with paper instrument. In this paper, the features of electronic evidence and its validity are studied.

Board of supervisors is considered a board to investigate official violations including effective supervisory activities on official systems in order to improve law governing and justice. In Iran doubled - system is accepted by two system including united system and doubleness of official courts and other courts. Most important subject in board of supervisor to investigate official violations is way of investigation. There are two type of official & judicial supervision by official reference (supreme board of supervision) and judicial reference (official justice court) in Islamic Republic of Iran which investigate official violations. supervision of supreme board is general and effective and wide supervision. so, if this supervision is not done appropriately it will has negative effects on dependency of boards.

Every invention in order to be registered, should have essential conditions and the legal due process should be complied with. the novelty is a traditional qualification of any invention, which must be considered objectively; the applicant’s awareness or his ignorance in regard to it's public release, is not efficient in the maintenance or decline of invention’s novelty.The state of the art which is the invention's novelty criteria, means the technical progress acquired and released in all relevant domain since delivering the patent application; and every invention disclosed in application documents should extend this state. meanwhile the formal exhibition and illegal access of the invention along with the priority claim in accordance with relevant applicable rules, do not remove the novelty condition.New product and process, the new application of known means, the new advantage of the known things, selection inventions and the new combination of the known means are the important aspects of invention novelty.

When a person should compensate something for a person, it is said that he has civil liability. the existence of evidence that shows a person is responsible- the wrong act, damage, negligence causation relationship-specific religious relationship is caused between the person who cause the damage and the one who receive it that the former turn out to be the person indebted and the later one the person who should be paid, and the nature of this relationship is the compensation of the damage.At the beginning of 19th century, lots of attention was paid to the origin of responsibility, and influenced by this perspective, civil responsibility was divided to tortuous and contractual branches, and gradually each of them has found its special conceptualization (duality of liability), though each of them has been criticized. The purpose of this study is to clarify these two types of responsibilities and shed light of its applications.

Not well distinguishing between question fact and question of law, by lawyers, experts and judges produces unfavorable consequences on civil procedural system, from which substantially, our current judicial system suffers. Our judges dont know well their duty to the wrong qualifications made in the pleas; Solely being damages, the subject of plea, they rapidly assign the whole case to the expert; In giving judgment, they overlook the facts given by the parties. However, overdoing at contract construction and evidence assessment by the supreme court, judges inaction in matters of law, giving opinion into legal matters by experts, neglecting the Res Judicata (la chose jugée) and etc, are our current judicial problems which in this article are to be solved according to a correct distinction of question of law and question of fact.

In Imamia (shia) jurisprudence, following the view of majority of jurists, when a physician takes the patientُ s consent for the treatment, and injures him, during it, he will be responsible, although he is not at fault, unless he has taken "Bera’at"befor the medical operation. this idea is too well – known that has been the origin of article 319 and322 of the Islamic punishment code. In this essay, the avidences of that opinion, is critically studied, and it is demonstrated that: Non - fault responsibility of the physician and the necessity of taking "Bera’at"is not proven. Believing in the necessity of taking, "Bera’at", one can decide that the meaning of "Bera’at"in Fiqh is "consent" in modern legal system, not "the non responsibility clause". It is accepted that if the patientُ s consent to the treatment harm is proven, the physician, will not be responsible; Unlike the minority, the majority does not deduce consent to injury caused by medical act, from the consent to medical act, requiring taking of "Bera’at".

Legal terms are as heritage of civilization and arising out of social developments of nations. However, public order in international law is required in international instruments and is cited repeatedly by international tribunals and authors but still have a vague concept in practice.What is studied in this article is analyze of concept and nature of international public order in considering various philosophic views about international community and international legal system. In this article we try to answer this main question that is evolution of international public order influenced by legal matters or some non-legal elements are involved in its creation.

The election is the best way to give legitimacy to political power. In a democratic political system any authority must not remain outside the electoral ring.The law and the electoral system must establish a good relationship between the legal personality of the individual and their right to vote. To achieve this end, it would expand the rights and freedoms of citizens to better prepare the conditions of their choice. Despite his experiences of several decades, the Iranian legal system still suffers from inefficiency in the electoral political system. Without doubt, this inefficiency produces obstacles to citizens to exercise their right to vote. By focusing on the “law for the election of members of the Iranian parliament”, the author has tried to highlight the most serious shortcomings of the Iranian electoral system.

Parties, the magistrate, the dispute, argument and procedure with all its features at the hearing principally means the application of Law on Facts in order to resolution of conflicts, but it needs by itself to be organized with some techniques as a result of organizing the litigation process. Some general norms are the means for achieving this goal which called Principles of Law. We can introduce these Principles in three categories for create a balanced and fair resolution of the parties’ conflict and judge's roles in civil litigation process: Principles governing on: Proceedings, Subject of Litigation and finally the hole of Proceedings. In this article we have proposed these Formative Principles to our legislator as a technique of balanced and fairy methods of civil justice process.