PRIVATE LAW STUDIES
Year:2005 | Volume:- | Issue:68|Papers Count:14

After over 55 years, from ratification of convention on the prevention and punishment of the crime of genocide (CPPCG), there is still difference of opinion about structure of elements of genocide. It isn't for no reason that article 9 of statute of the International Criminal Court (lCC) deemed necessary elements of crimes-genocide and ... - shall be adopted by a two - thirds majority of the members of the assembly of states parties. The aim of this article is study of those elements with respect the context of the CPPCG, proceedings of preparatory commission, the legal doctrine - before and after adoption of CPPCG - and finalized draft text of the Elements of Crimes that adopted in session of the members of the assembly of states parties of ICC in Sep 2002. In this study, the important point is the correct understanding of the criminal conducts and mental element and criminal liability of perpetrator. The distinction between the intent to destroy group and the motives of perpetration, that has been tried to solve.  

Early after the Islamic revolution of Iran, the guardian council declared that "Rules of limitation" was illegal. Afterwards, our courts refused to make award liased and these rules. Nevertheless, in some cases the rules remained enforceability, such as the duration of fratest in commercial fafers, and the ciminal action period in case of disfonosed chacpue. In 1378, Lowers, a few astic1es were ratified by the parliament that seem to le vague and imperfect, and this is the point which this essay is going to explain and try to seek for semedies. The fundamental frolilem in the new act is that, these is no discriminating lase to distinguish "Deterrent" and "Discretionary" (tazir) punishment, to enforce limitation on criminal cases. This ambiguity, in turn derived from aliscusity in definition of "tazir". to fetch of the follies, relying upon principles 167 of constitution, and Islamic law (fikh), we may say that all crimes - excort for prescrilied punishments [fined punishments: hudud, retaliation: kisas, and liload-money:diya]-should the titled "Tazir", so that the limitation rules could apply an all those crimes. It is oblivious that in this way we are compelled to commit liroad interpretation.  

In the field of criminal thoughts, classic idea is the oldest one and because of the assumption of "free will" and "moral responsibility", this idea has been considered as a philosophical and moral thought. Nowadays, after passing more than centuries from publishing Beccaria's book, we consider the renovation of this idea in western countries especially in North America. This new doctrine that is called "Reconsidered Neoclassicism",  is based on philosophical and moral concepts and believes that "Retribution" is the most suitable goal for punishment and "Rehabilitation" has no efficiency. So, this school believes in "just desert" and "though on crime".  

Public order is one of the functional and ambiguous concepts of law. This concept in addition to limiting role in internal area, is also an obstacle of foreign law application and enforcement of foreign judgment. The concept of public order in internal area is more limit than this concept in international area. Today, public order has found new aspect that it is the police rules. Public order is applied with some differences by the courts and arbitrators.    

The main question of this essay is that: can we recognize a significant and specified place for sociological jurisprudence? With presenting the sociological debates in Iran, a question has become seriously considerable that to what extent the will of people (society) can defect on the creation and development of legal rules and institutions, and can it be legally valid? The answer can specify the future developments of Iranian legal system and it can explain many previous events. Of course, we should achieve the goal through a long and difficult scientific effort, not with an ambiguous normative command, but with analysis of legal theoretical foundations step by step, to obtaining an obvious, understandable and enforceable paradigm in Iranian legal system. This essay has taking steps in this bumpy, compulsory and non-returnable path and seeking to achieve the answer to the question that: can we have a sociological approach to law (that is to say: socio-legal approach) in Iranian legal 'system, and in particular, in Islamic jurisprudence? After an overview of Islamic theology ('ilm-al-kalam), Islamic legal methodology ('ilm-al-osul), philosophy of Islamic law and Islamic law ('ilm-al-fiqh), we concluded that the acceptance of a sociological approach to law, with a special legal epistemology, is theoretically possible. This approach generally recognizes the relationship between law and society, the developmental transformation of law and society, the place of extra-legal factors, regarding law as a pragmatic instrument used to guide, manage and order social interactions, the social structure or the both; even though this approach has not ignored the realm of absolute values that control and direct the main orientations of legal system to the justice.  

The right to exercise jurisdiction in civil matters lies with the court to which a case is referred. However, the findings of courts vary and one court's ruling could contradict another court's ruling on the same matter, in a way that a court declines jurisdiction and refers the case to another court but the latter court could refuse to accept jurisdiction too. In such a case there is a conflict of jurisdictions. Law (legislation) offers various solutions depending on the nature of the jurisdictional conflict. There exist various forms of jurisdictions such functional and local jurisdictions. However, functional jurisdiction is a corollary of the classification of the courts jurisdiction according to their nature, kind and rank. The classification of the courts jurisdiction on the basis of geography is called local jurisdiction. In this research, I have strived to explain the concept of jurisdiction and conflict of jurisdictions by highlighting the advantages and disadvantage of Civil Procedure act of 1379 (2000).  

The plaintiff is under a duty to mitigate the losses resulting from the defendant's negligence; so that he will not be able to .claim for losses which could have by the taking reasonable steps to reduce those losses, once the has been treated. This duty is justified by the principle of causation. The plaintiff may claim compensation only for the losses caused by the defendant's wrongful act. This rule is a rule of common law but its effects are accepted in other legal systems, such as Islamic and Iranian law. It follows from this rule that: 1- If the plaintiff fails to take reasonable steps to minimize his loss, he can not recover any thing in respect of the extra losses. 2- The plaintiff may be able to recover amounts paid in, reasonable steps to mitigate losses.  

The Phenomenon of the hoard is one of the most manifests examples of the violation to the social rights, which in turn has both the injurious consequences and destructive effects. So the governmental system mustn't be indifferent towards it.The Islamic ruler should encounter the hoard in both economic and legal contexts. To e faced with the hoard. The governmental system has two significant duties: 1- to compel the hoarder in order to sell the hoarded goods. 2- to punish the hoarder if he or she refrains from selling those goods. Since this question is the question of the conflict of rights - because on one hand, the owner has the right of possession in his or her property and on the other hand, the society mustn't be under the economic pressures' -therefore the preference would be with one of these two rights. In this research the legal principles and rules of the hoard and valuation will be examined and also with reliance on the opinions and views of foghaha, the reasons and bases of these principles and rules will be discussed. Then we are going to conclude that in cases in which the rights of the owner conflicts with the rights of the society, the priority would be with the rights of the society and consequently the rights of the owner would be faced with some limitations.  

In this work the author has tried to depict the characteristics and border lines of petty crimes, and has a survey on the data of criminal law and criminological findings and draws some practical techniques to encounter such crimes.