مجله حقوقی دادگستری
پیاپی 82 (تابستان 1392)

Since the establishment of the administrative court of justice, there has been a dispute over actionable claims in this new court. The ambiguity of law in this context has led to conflicts in legal doctrine in introducing diagnosis criteria of actionable claims in that court. These two elements -ambiguity of law and conflicting legal doctrine– has affected the decisions made by the court's judges. The present study tries to examine and evaluate the diagnosis criteria of actionable claims in the court from the perspective of law, doctrine and judicial proceeding, using a descriptive–analytical method and with a fundamental consideration of the limits and the type of jurisdiction of the administrative court of justice. It attempts, therefore, to yield a right approach to the court's jurisdiction and the related diagnosis criteria of actionable claims.

Diversity of contractual matters has caused lots of controversies in private international law. The main legislation in Iranian law of contractsin this respect is section 968 of Civil Code. Most debates about this section are devoted to the matter beingcompulsory or complementary. In this article, with a deep analysis of all respected dimensions, we conclude that, regarding section 10 of Civil Code, we need to take a different approach. This approach has a double base. Firstly, it is based upon the principle of the freedom of the contracts and secondly upon the fitness criterion. By fitness criterion, we prefer the law that has the best coherence and most bonds with the contract.

Theorizing and commentating in the field of criminal policy is severely needed for our country on the note that lack of a solid and coherent domestic pattern for managing reactions against crime and deviance will cause disharmony among responsible governmental sectors, and this will in turn cause a decrease in criminal justice factors in the Iran. Although paving the path toward criminal justice in Iran is first of all and naturally influenced by Islamic teachings, the term ‘Islamic Criminal Policy’ confronts many theoretical and practical challenges religious and legal literature in our country; challenges that should be recognized and solved whereas if not, we cannot claim preparation for moving towards designing ‘the theory of Islamic-Iranian Criminal Justice’. Studying the performed research in the country in the field of criminal policy shows that there are a couple of important dialogues in this regard. As we can consider ethical dialogues which are specifically in the field of criminal policy which are indirectly effective on basics, structure, and changes in Islamic criminal policy. This paper intends to use an analytical dialectics approach in order to perform a pathology on both famous and effective approaches with insist on philosophy of Fiq-h, and describes how a relation may be established between policies ruling over criminal Fiq-h and Islamic criminal policies. The final goal of this research is to draw a framework of Islamic criminal policy which itself is a part of a broader theory; namely, the Islamic Iranian pattern of criminal policy.

“Transparency” in administerial structure and among governmental authorities, is of highly effecting preventive measures. If related institution, by making the processvisible in official affaires, increases the risk of corruption and abuse of power, it would decrease. In addition “transparency” as making public confidence, would prevent the false believes, which create the oppportunity for corruption. In this papere we try to review the issue and explain its importance with regarding to Islamic thoughts.

For reasons including inability to impose some punishments,violating the principles of being personal punishments, not realization of punishment goal, specificity principle, constraints on procedures and most importantly, lack of guilt evidences, in negation, as well as arguments such as justice and criminology fact, difficulty of discovering the true culprit, scrutiny of the members and stakeholders in selection of managers, reduction of punishments for freedom hampering or injury of managers and finally compensation for damages inflicted on victims in a favorite manner have been expressed in proving criminal liability of the legal entities. Counterpoint approaches impact on the legal systems was so that until the twentieth century, the legal entitie's liability was put in doubt as a principle. But since the second half this century following the legal entities activity scope, especially the companies, and rise of crimes against environment, organized crimes, specifically transnational crimes, crime in the field of transportation and industry in general caused the leading countries as Canada, England, United States,Netherlands and the Europe Council to accept and regulate the criminal liability of the legal entities as a must, despite of criminal law shortcomings, through relying on theories such as vicarious liability, secondary character, employers and superior's responsibility, collective guilt and criminal liability of the legal persons. Alnahayah the movement for criminal liability of the legal entities, made Iran to join the system; so that inability for in the first step cyber crimes 2009 in particular, and in the second step for the Islamic penal law, in general were accepted. Scrutiny in transformation of the Iranian law in this regard, specifically in the above mentioned bill has been the effort of the present paper.

Taking different jurisprodence by international judicial organizations in relation with control criterion, shows the contradiction on this issue. Control criterion in ICJ jurisprodence is expressed clearly in Nicaragua case. In this case ICJ examined the control criterions.In Genocide case, it once again examined this issue, However ICTY pays attention to different methods of controlloing criterions.The challenge of ICJ jurisprudence by ICTY is crucial in this regard. The investigation of ICJ jurisprdence shows that it has followed consistent process about controlling criterions in diffrent cases. Facing with challenges by other dispute settlement organizations,ICJ has emphasized on it’s jurisprudence.Effective control is utilized in relation with international responsibility of the states but the overall control is applied in relation with criminal responsibility of individuals.

A clause of the marriage contract is that of non-intercourse whose legal status constitutes the target of this study. The question at issue is whether the above clause is basically valid or void and destitute of legal effect. Where the clause is void, will it affect the marriage contract? Furthermore, another assumption that can be made is whether or not the "Non-Intercourse Clause" in the marriage contract can be valid in certain cases and void in other. Hence, in this essay, in view of the silence of the law on this issue, this study has been made of the views of Islamic jurisprudents and lawyers. Finally, the validity of the above clause is inferred using simple logics.

The investigating magistrate that has been the basic difference between the inquisitorial and adversarial criminal procedure systems has been faced with some challenges in the past two decades. The practical effect of these challenges has been in two ways, abolishing this institution (Italy and Germany) and derogating its functions (Franc). criticism can be divided in three branches. First there is real doubt in protecting impartiality because the investigating magistrate can gather the related evidences. This problem is stronger when the decisions of the magistrate is againsta fundamental rights of people. second the existence of thisinstitution can causes a very long criminal procedure. Because in models with investigating magistrate there is need to two satisfactions, the trial and investigating judge and this can prolongthe process. Third the investigating judge can investigate only more important crimes because of the practical problems. the practical results of the situation is the lack of separation of investigation and prosecution and this means that the prosecutor can investigate a lotof crime. The absence of investigating judge in less important cases is contrary to its philosophy. Removing from challenges against investigating magistrate that are related to most basic rules (for example the right to impartiality, fair trial, the right to process without delay) and getting close with the Islamic criminal procedure and deleting a characteristics of inquisitorial system and taking a good face to global society, need to reviewing of this institution.

Notwithstanding all the existing safeguards and preventive measures, in many cases, criminal justice systems do in fact punish the innocent. The Article deals with the issue of compensating those who, while having been wrongly found guilty by a final judgment of the judiciary, are nevertheless subsequently exonerated as innocent people and found to be victims of a miscarriage of justice. After considering the relevant provisions in international instruments as well as a number of foreign legal systems, the Article examines the existing provisions in the Iranian legal system. We find that, despite clear guidance in the Islamic jurisprudence and in violation of the Iranian Constitution and Iran’s international obligations, there are major shortcomings in current legislation, impeding the actual process of examination of claims and of paying due compensation to the victims of wrongful conviction by the State. In order to overcome the said problems, we propose that the responsibility of the State be recognized for all the damages suffered by the victims, and that the concerned compensation be promptly made from the public treasury, whether or not any public official or third party may be liable for causing the wrongful conviction. After paying the damages, the State will have of course the option to bring a claim against any faulty person or official. Our proposal does not violate any provision of the Constitution, since according to which faulty judges are to be held liable, does not necessarily mean that the victim has to bring a claim against the concerned judge, but instead, can also be interpreted to include the liability of the judge to the State. Moreover, we propose that in order to facilitate and accelerate the procedure for just compensation of the wrongfully convicted, further appropriate measures be taken, which shall include revision of Article 30 of the Act of Supervision of Judges’ Behavior (2011).