پژوهشنامه حقوق کیفری
پیاپی 1 (پاییز 1389)

Temporary Order and Preservation of Object of Claim are two cautiously measures in the civil procedure code of Iran. By issuing them, enforcing of the verdict of court is easy in future. In spite of the similarities between two institutions, there are several differences between them including prompting of subject in the temporary order. Temporary Order is not protectable independently however preservation of object of claim is protectable independently. Possibility or Non- Possibility for protesting to temporary order through demanding, revision, retrial and protesting of the third party are important subjects in relating this order. In this article, the differences between temporary order and preservation of object of claim and methods of protesting on temporary order are discussed.

This paper discusses the conflict between community rights and the rights of individuals involved in criminal justice, especially the accused and suspects and how to make necessary balance between them; That means in the criminal justice entities, including judicial officials and the media referring to the fundamental right freedom of expression and information in order to observe the public interest and benefit, their right to express and disclose information about suspects, accused of crime charges and consider them. On the other hand, the suspect and charged based on their inalienable rights, namely the right to assume the innocent and the right to privacy, free speech right to run an absolute barrier implementation know their rights. This paper is on the examination of Iran laws and Case law, the laws of some countries and international and regional documents and particularly European Court of Human Rights Case law as a specialized agency in the judicial investigation in human rights, legal bindings or modify these rights should be presented.

In response to the requirement under article 27 of the Biosafety Protocol to the Convention on Biological Diversity, further work is needed in order to clarify a system of liability and redress. The Protocol charts out a new direction in the growth and development of modern biotechnology, some concerns raised about biotechnology, such as safe handling, use, and transfer of living Modified Organisms (LMOs). For LMOs intended for direct use as feed, food or processing, the developed countries are, at the beginning, obligated to put in place domestic regularity frameworks, while developing countries, including those with economies in transition, need only make decisions based or risk assessments. The question of legal system for liability and redress left upon to be decided in future. The main objective of this review is to analyze the adequacy and relevance of such regimes to liability and redress for damage caused by transboundary movement of LMOs, in order to achieve this goal, several points including risk assessments, obligations of the states and operators, export and import of LMOs will also be addressed. Iranian National Biosafety law will also be considered. Then in the light of this study, we will consider different interpretation of article 27 of Cartagena protocol, and at the end it is concluded that it would be better if the liability is based on polluter pays principle. As for as the duties and obligations of the parties are concerned, it is important to consider not exempting the states from liabilities. This is because most entities engaged in biotechnology activities are national agricultural research centers. The states are liable both according to national tort law as well as the international public law, for their illegal acts and non-forbidden acts which cause damage to the others. While we believe that it is possible and foreseeable to achieve a goal to adopt an international regime on liability and redress in the context of the Cartagena protocol, this research could pave the way for a legally binding instrument in international regime in the future.

Judicial independence roots in the history of legal systems and nowadays its importance has developed. To realize this institution, we have inquired its nature from negative (independence from…) and affirmative aspect (independence in…) and we have divided it according to its base (formal and practical independence) and its subject (private and organizational independence).Then, we have found three major purposes and advantages for it: (a) watching society rights, (b) preserving judicial rights and, (c) securing individuals rights. Judicial independence joints with other legal bodies, it may mix with impartial of judge, or it may pose about persons like judge such as prosecutor and arbitrator. After all, judicial independence is not unrestrained, and in its impact scope, for securing aims which have been implied, faces with some limitations. Therefore, in addition to securing independence, there should be a system for judge responsibility which makes him to respond for his performances.

There is no agreement on idea about the time of conclusion the contract by correspondence or the contract between absentees as that four different theories has been making: 1-the theory of declaring the acceptance2- the theory of sending the acceptance 3- the theory of receiving the acceptance 4-the theory of acknowledgment of acceptance. According to the legal basis in each legal system and its interpretation from parties’ intention for conclusion the legal act, each of the four theories has advocates. The theory of reception has adopted by International Convention of Vienna in 1980 and English legal system the theory of sending the acceptance and in Iranian legal system the theory of sending the acceptance are more capability and acceptable than other theories.

Restrictions imposed on sexual relations are among discussions considered in both religious and secular law teachings. At present, there are sexual restrictions as sexual crimes in various law systems in spite of cultural and ideological differences. In Islamic law, sex crimes often are punishable by determined punishments. (Had)Current Iranian criminal law, in the sphere of sexual crimes is the reflection of this approach. The results of this research show that sexual limits, regulated as sexual crimes in the ancient laws and in the teachings of Abrahamic religions, including Islam and Judaism, are in agreement with the human nature. However, there is a fundamental difference in the philosophy of criminalization and the aims of punishments in the sexual crimes among the ancient laws and religious teachings.

In reviewing the criminal justice systems of many countries one can easily see the difference between the duress and necessity. For example in France, duress is used as an excuse whereas necessity is used as form of justification.The difference between these two forms of defense is the reaction of endangered individual. In order for an individual to use necessity as form of justification, it is important that the reaction of endangered individual must supersede the outcome of present danger, however this is not required in person with duress. In other words the least of two evils must be considered.In other countries like United States a model penal code is used. In this law, necessity and duress are used as part of justification, if the reaction of endangered person is more beneficial to the situation but in absence of the above requirement in necessity will result in less punishment. It is important to notice that the most advanced form of justice system in this regard is Germany.In German judicial system there is no difference between the necessity and duress as long as the reaction of endangered individual is proportionate to the threat. In that case it can be used as part of justification; otherwise it is used as an excuse.In Iranian justice system, the legislative body does not recognize the duress and necessity as part of any forms of justification; rather it is seen as an excuse.Regarding the basic criminalization and justification, it is necessary that if the reaction of an endangered individual supersedes the outcome of a danger or threat then it must be considered as a justification. This important issue however is not discussed in our judicial system but the courthouses and judges can take this issue into consideration.