مجله نامه مفید
پیاپی 94 (زمستان 1391)

Rules of jurisdiction are among mandatory rules imposed on both litigants and the court. Litigants have not any way for determination or delimitation of jurisdiction, except in the special framework of jurisdiction clauses. Also the court cannot leave what is entrusted to it by regulations and jurisprudence. However, a study of different legal systems, in particular Common Law system, is indicative to permission of expediency examination in the exercise of jurisdiction. Thus the court is permitted to take account of public and private interests and decline from jurisdiction and direct the parties to another court in another state.

The most important purpose of challenging an arbitration award is preventing its enforcement in the country of origin and, in some cases, even in countries other than its country of origin. In addition to the ultimate results of the procedure of challenging an arbitration award, inter alia its setting aside, the mere procedure of challenging an arbitral award may have its own effects in domestic as well as international levels.The most important transnational effects of challenging an arbitral award may be enumerated as follows:Providing possibility of prevention of enforcement of an arbitral award at international level and the probability of suspension of enforcement and adjournment of deciding on the enforcement of the award in the country(s) where recognition and enforcement is sought, until final determination on the challenge of arbitral award in the origin country be made,

The compulsory insurance system and no–fault compensation systems are designed to overcome alleged deficiencies in the tort system as a means of compensation. Tort proponents argue that the tort system provides important safety incentives but this is generally discounted by no fault advocates. This article surveys the compulsory insurance and no–fault compensation literatures and concludes that the law and economics literature has not shown much concern with efficient no–fault design and the main focus has been the adequacy of the tort system as a system of compensation and deterrence. Then, it is necessary to pay more attention to the control of risky behavior of agents by insurer, by which compulsory insurance can be more efficient.

Code of Civil Procedure of Iran declared, in Article 366, non-conformity with Islamic jurisprudence or statute as the common cause of appeal to the Supreme Court. The Code, in Articles 371 et seq., however, has explained the causes in detail in a manner subject to criticism. In French law, in a proper and suitable action, Article 604 of the New Code of Civil Procedure has declared non-conformity with legal rules as the common cause of appeal to the Supreme Court. But authors and judicial precedent have stated the causes in detail. With comparing causes in Iranian Law and what authors and judicial precedent in French Law have introduced as causes of appeal it becomes manifest that some of the causes, including violation of statute, incompetence of the court, non-observance of formal rules, contradiction of judgments and defect in the reasoning of judgment, are common between the two laws. However on some other causes there are differences between the two. Thus, conflict with Islamic jurisprudence, deficiency of investigations and not paying attention to defenses of the parties to a claim, invalidity of documents and misinterpretation of contracts are found only in Iranian Law, while trespassing of authority and loss of legal basis are peculiar to French Law.

One of the most complex issues in criminal policy is estimate of costs of crime. Because, committing of crime imposes high costs on society and citizens which may be victim of a crime. Accurate and scientific study of crime costs had been, simultaneously, started with economic analysis of law, and especially, of crime control. In the viewpoint of this school of thought, practical measures for increasing the social welfare, is possible, only by taking into consideration, the costs of criminal process.In general, costs of crime are divided by economists to three sets: costs of victims, costs of criminal justice system and costs of offenders. Cost of victims, in turn, is divided to tangible costs (productivity losses, medical costs) and intangible costs (pain, suffering, and reduced quality of life). But, criminal justice system costs depend on adoption of policies. Offenders, by perpetration of a crime, sustain costs for escaping from criminal justice and detection of crime.For economists, accurate estimation of crime costs may result in: firstly, the revealing of paramount importance of crime phenomenon in ascertaining other preferences; secondly, offering efficient and best policy choice in the face of scarcity of resources; and finally, making possible use of cost-benefit analysis for policymakers.Unfortunately, the research in Iran has not paid attention to estimation of crime costs. The main cause of the neglect is rooted in lack of proper identification of crime cost. This article explains the importance of crime cost estimation and prepares the ground of the implementation of this process in Iranian Law.

If someone makes another constrained (compels another to do something), his reactions which result in injuries have different forms. There are controversies among lawyers and Islamic jurisprudents on the rule of such cases. If a constrained person loses his intention or gets involved in an accident by chance, most Islamic jurisprudents would find the indirect cause responsible; this, however, is a matter of dispute in non-predictable cases. Doing an act which leads to his death would be authorized by some Islamic jurisprudents provided that it occurs to avoid more painful death and the indirect cause has been found guilty in this case. In common law the scope of responsibility of indirect cause is more extended and mostly he is responsible for any accident whether it occurs intentionally or non-intentionally, unless his reaction is unreasonable or non-predictable. Islamic Penal Code provides the constrained person’s loss of intention as a condition for indirect cause’s responsibility which is disputable and somehow incompatible with justice, convention and equality.

When the government is not able to counter aggression or prevent it, in Fiqh and Statutes there have been stated deterrence tools. The first factor is universal watch based on the doctrine of forbidding evil and the second deterrence factor is self-defense. In order to prevent the abuse of such a right, there must be some legal sanction to ensure that the defender does not exceed what is reasonable. Unlike Shi’a Islamic fiqh, Iranian law does not identify the kind of action an aggressive defendant may have recourse to. Shi’a fiqh seems pioneer in this regard compared to American legal system which after decades and taking multiple steps has come to introduce it. However, in practice, Iranian legal system in comparison with USA legal system has not achieved any success. This article attempts to study the concept of aggression and its effects on different instances of self-defense (i.e. Burglary and Castle Doctrine) by examining fiqh texts, and Iran and USA penal systems experience.

Obligation of allowance in adoption has special basis and scope. Unlike “alimony” that is based on contract (marriage), in “allowance to family members” the obligation to payment and the entitlement to receive have moral backgrounds. In adoption, the obligation has both contractual and moral basis: on the one hand, the position of adoptive parents and that of the adoptee may be the criterion of allowance (moral basis); on the other hand, adoption is subject to adoptive parents’ consent (and in effect has a contractual aspect). Therefore, any legal analysis is deemed to consider the bases of this obligation and the differences between adoption and the two former institutions (i.e. allowance to family members and alimony). This article attempts to examine these issues and at same time, justify and explain them in the light of domestic rules and principles, and in conformity with analogous structures.