مجله نامه مفید
پیاپی 40 (بهمن و اسفند 1382)

Fraud to the law is one of the important issues of private international law and one the notable topics of the conflict of laws. One could give two relatively different meanings of the concept of fraud to the law. First, avoiding the proper domestic or foreign law accompanied by voluntarily changing the connecting elements such as nationality and domicile. This study shows that the avoidance of the parties from the appropriate law is not always with the change of the connecting elements. A modern meaning of the concept of fraud to the law refers to the avoidance of both or either of the parties from the applicable law with a change of legal relations. From a substantive point also, the study of fraud to the law indicates that two material and mental element contribute to the establishment of this lagal institution. But ascertaining the mental element, that is, the fraudulent intent of the parties or one of them is not an easy task. It seems that according to Iran’s private international law and on the basis of Article 990 of the Civil Code, in order to prevent fraud to the law, those Iranians who have acquired foreign nationality are allowed to return to their Iranian nationality only if the Iranian government accepts their application and exercises its discretion.

When a consumer suffers damages caused by an industrial product, the mere ascertainment that the physical harm was a direct result of the product will suffice to show the deficiency of the product and to rule on the gross negligence of the producer. Thus the producers’ products which contributed to the occurrence of the crime and also the conduct of the distributors who deceived the consumer to use the goods are attributed to the suppliers without there being a need to prove the fault and as a prima facie evidence. They will bear responsibility arising from the rebuttable assumption of the fault for the damages caused by the supplied products. If they could prove that the losses had arisen from the act of the consumer or of a third party or from a force majeure, they would be released from criminal responsibility. Otherwise the mere fact of causing damage will entail blood money due to the victim and if the fault of the supplier could be shown, he would be additionally convicted to imprisonment under Article 616 of the Iranian Penal Code.

The majority of Muslim jurists including Shiates and Sunnis except Hanafis are of the opinion that a Muslim may not be retaliated for a non-Muslim but a non-Muslim shall be retaliated for a crime done to a Muslim. This issue which reminds one of discrimination on the basis of religion is considered an essential rule of Shiate jurisprudence. The author attempts to examine the issue using the methodology of traditional fiqh in Imamids jurisprudence to lay bare its weakness and strength. He does not claim to have reached a definite conclusion in this regard but does acknowledge that the aim of the article is to result in further discussion of the issue rather than to offer a particular view.

History has witnessed several legal systems that were brilliantly dominant for a while but disappeared because of the lack of adaptation to the social developments of their times.Islamic Law, however, enjoys a dynamic internal mechanism that ensures its coordination with changes in human life through ages. The flexability of the Islamic Law and the possibility of its adaption to the circumstances of the time and the place of each era has provided the grounds for the Islamic Law to be presented in forms adapted to the given time. The Islamic Law has been able to meet the needs of human societies during ages while keeping its basic principles constant. In fact the Islamic Law is a living mechanism that kept its real identity thanks to its diverse local and temporal variables. In this article the author tries to shed some light on the factors that have made it possible for Islamic Law to adapt well to social changes.

Article 768 of Iranian Civil Code is among the few legal provisions capable of so many applications in today’s economic relations; for it has an extensive scope and so much efficiency. But this notwithstanding, the provision, due to the lack of familiarity on the part of the people as well as the little attention paid by the lawyers in elaborating its various aspects, has rarely been put into application. The Article is strongly supported by fiqhi and juristic principles and is more appropriate and unproblematic in responding to present day economic needs. Issues such as the obligation to pay a specific amount for an agreed settlement, obligation for a third party, banking operations (giving loans with the least interest, paying interest to fixed deposits), debentures and insurance, are some of the instances for the application of the Article. Through examination of the historical background of the Article and its roots in fiqh and law which leads into its consolidation, the above issues gain religious and legal authority and thus open ways for solving many problems faced by the society.

In spite of all developments that resulted in emergence of three important models as justice, clinical and community protection, the role and influence of justice model upon strategies of combating against crime and reaction to offenders is more important.the dominance of this model on various kinds of criminal justice strategies and its revival since the first half of the twentieth century, due to be studied in detail through theoretical and its outcome evaluation.In this article while studying theoretical foundations and critics of this model, we will pay attersion to some criminological researches about its outcomes.

The article examines the status of necessity in the law of torts. There is no doubt that necessity precludes the harmful act from being characterized as faulty, and allows taking measures which are otherwise unlawful and illegal. But the question is whether it exempts the agent from its consequences. The issue has divided the legal systems. According to one view, necessity does not preclude civil liability and the person in distress must remedy the damages suffered by the victim. It is true, however, that some legal systems grant the judges full discretion to consider equity in determining the extent of liability of the respondent.An alternative view holds that since in cases of necessity, the act of the agent causing harm is taken to prevent a greater harm to him/her or to another, necessity must be regarded as exempting the agent from civil liability.The above discussion notwithstanding, necessity may, in certain circumstances, create obligations for some persons which cannot be studied within the framework of the law of civil liability; their justifications must be sought in other grounds of obligation.The author tries to examine the issue and clarify, to the extent possible, the ambiguities surrounding the issue.

Human rights and liberal trade rules(including WTO rules) are based on the same values: individual freedom and responsibility(e.g. to adjust to competition); non-discrimination; rule of law; access to courts and adjudication of disputes; promotion of social welfare through peaceful cooperation among free citizens; parliamentary approval of national and international rules. The non-economic values of the WTO law are no less important for the human rights and welfare of citizens than the economic welfare effects of liberal trade. Like the EC, the WTO can and should become an advocate not only of economic freedom, but of human freedom more generally. This article argues in favour of constitutional reforms of WTO law so as to take civil society and human rights more seriously.