PRIVATE LAW STUDIES
Year:2008 | Volume:38 | Issue:1|Papers Count:20

Dr. Djavad Vahedi, The deceased professor of civil procedure in the university of Tehran, has written an article in No.38 of this Journal under the head of "the first session of hearing and its particulars". In that researching, he has carefully defined the first session of hearing. In the present article, the writer has followed from his professor and discussed the rights and duties of plaintiff in that session. The first session of hearing has privileges for the claimant that next sessions are absent of this privileges. Using of these privileges depends on the information of claimant from his rights and duties. The plaintiffs rights and duties in the first session of hearing and privileges of this session for him, has been explained in this article.

The article examines the relationship between tort damages for personal injury and social security benefits in Iranian law with a comparative view on English and French law. Amongst Four potential policies (Cumulation, Reduction, Election and Recoupment), the statutory provisions of Iranian law have chosen the latter one. But in practice these texts have paradoxically lead to a fifth excessive and unjust solution: increasement of the tortfeasor’s burdon of liability; and this is mainly because of ambiguity of the nature of diya (blood money) in Islamic Law, on the one hand, and lack of proper procedural forms, on the other. While examining the object of the recoupment, social security benefits which can be recovered from the tortfeasor and the difficult problem of heads of damages (including dyia) equivalent to recoverable social security benefits, the author tries to show how to take into account social security benefits while making a decision on tort liability for personal injuries.

Homicide is one of the most important crimes in all countries statutory laws. Such an importance is out of both of severity of the committed crime and difficulties in trial. These difficulties may cause to different and even paradoxical verdicts in the same case. This article is involved in one of these cases, i.e. homicide which has encountered to different judgments and is still open. Brief review of these judgments and their criticism has been put forward in this essay.

Lebanon enjoyed the Constitution in 1924. In other words, this is the second country in Middle East after Iran which has enjoyed the Constitution. Lebanon is considered as the pattern of the Islam world and West world which enjoys both rich culture of Islam and culture and rules of West. Lebanon has the distinguished status in comparison with Islamic and Arabic countries and the whole countries of Middle East in all respects. This country has encountered with the legal gap for a long time to elect the president due to some problems which we have no chance to study this Paper. In this Paper we dealt with the review of legal gap. The relevant principles in Constitution of Lebanon especially article 49 which, led to dispute, and viewpoints of the Professors of Public Law in this country shall be criticized and reviewed. The main point is mutually-agreed principle or mutually-agreed democracy which is well-known among Lebanese’s, because, today, what is known as the Majority & Minority in democracy systems shall not be regarded due to exclusive conditions, but this is the mutually-agreed democracy or mutually-agreed principle that shall be regarded in accordance with the Constitution of Lebanon and its existing custom.

The International Commercial Arbitation process has grown up toward a wrapped legal topic because of being specialized the commercial relationships and being electronical. In addition to recognition of intellectual property and differences dealth with it , in the Case of commercial signs and Names, privileges and contracts of it, Copywrite and etc. Altogether demand the special arbitration regulations in order & dispute resolutions quickly. By statiscal considering rather than the available files in arbitration centers, it is distinguished that the Claims related to intellectual property rights are not less than other rights and the valuable international commercial arbitration regulations won’t be enough because of necessary arrangements for supporting from the rights of the intellectual property owners. The Arbitration Rules of the world intellectual property organization more common, general and Expedited Arbitration contain the necessary arrangements to support from the intellectual property and it has speed enough in investigation process. In this paper, the features of arbitration regulations of the would intellectual property organization has been making Clear and in comparison with the international commercial arbitration the necessity of using the arbitration regulations of the world intellectual properly organization is distinguished so that the use form the available patterns in mentioned arbitration regulations causes other charges in international commercial arbitration regulations in Iran.

There are two historical paradigms in Iranian family law: love law and libido law. Understanding the two approaches is possible by thinking on the four categories of love: 1. Libido: the passion of life and manifestation of sexual drive. 2. Eros: the romantic love and the genuine material of poem and literature. 3. Philia: the mere love purified from libido. 4. Agape: the spiritual love in mysticism. Love law ceases at libido but love law promotes to the philia passing through libido and Eros. 1. In libido law, the concept of marriage is equal to sexual intercourse but in love law the purpose of marriage is relatedness of man and woman to each other and their children. 2. Libido law treats woman as an object and instrument, but love law tries to treat her as an end. 3. The literature of libido law comes near to the pornography but the literature of love law has a chaste language. 4. In libido law, this is only woman who has to remain faithful towards her husband and family. But in love law the man is, in his turn, obliged to faithfulness to his wife and family. 5. Libido law, in spite of its name, treats libido in a cursory and perfunctory manner, but love law respects the values of libido and puts it in its correct place. For example in libido law if man and woman undertake, under marriage contract, to abandon the sexual intercourse, this contractual term will be correct and effective but in love law, the term is certainly void because of the serious role of sexual intercourse, in the frame of marriage, in faithfulness of both man and woman.

To being synchronically effective, equitable and humanness, in anticipating and implementing of criminal sanctions, a ‘’penal policy’’ should utilize a range of punishments which be appropriate with the variety of crimes, diversity of criminals and difference of crime situations. This variety in quality and countity is highly considered in Islamic penal policy since establishment of fixed and certain punishments that includes ghesas, diat and hodood (retaliates, mulcts and penances), beside the flexible and uncertain punishments (taazirat). But the existence of sever dissensions among the Islamic jurists (foghaha) about the different aspects of hodood and –especially- in taazirat (discretive punishments), is the sign of incognition of the real nature of this two types of punishment. This ''juristicial ambiguity'' has been terminated to low results in use of the variety of these sanctions in legislative and judicial criminal policy of the Islamic Republic of Iran. The present essay, considers the different applications of these two terms (hodood and taazirat), as well as, the various juristic opinions about the extent, kinds and commands of hodood and taazirat. The first output of this research is to attract attentions to great disputes in juristic understoods about an important section of Islamic penal policy. However, the final aim of this essay is to notify about the ruining results of tendency to verbalition and negligence from the meaning and the base of Islamic juristiality (tafaghoh), which, has more harmful results in the context of policies including the criminal ones.

In most contemporary legal systems, beside of the ostensible commercial company, there are somekind of occult commercial company, like 'joint ventures, in English Law and societe en participation, in Franch Law, that is necessary for both internal and international commercial practice. In our legal system there is not a legal commercial institution for the same purpose. In modern time with Globalization concept on international commercial business, the necessity of such institution fell more and more. On the other hand the reformatory project of commercial code 1384 does not provide any instrument for this Purpose. By this article we try to trace the headline of such regulation that becomes a hard fact.

Wastes Management law as a turning point in the view of Iran's legal system towards the issue of wastes was approved by legislator authorities on 5/09/2004, with a two-starred agency, as a comprehensive law against harmful effects of pollution and problems due to wastes for their optimal management. In this paper, in addition to evaluating of the legal system governing on wastes management, it also considers the position, principles and current issues in this regard, while viewing the experience of French law makers (for instance).The essential assumption of this paper is based on the fact that, simply relying on legal means to fight and to take action against this problem is not sufficient and the necessity to use and coordination of other policies, fields and non juridical means and uniting of society facilities in the long with accurate, realistic and ideal legislative policy is felt.

People’s participation in legislation is the highest manifestation of people’s right to sovereignty and determing of destiny of them political and social life. Nowadays this kind of participation mainly is applied by legislative branch in the light of indirect democracy and entrusting this right to members of parliament and in according to principle of separation of powers. After all, exceptionly and subsidiary the direct participation of people already exists in the form of refrendum and similar metods. Besides, the indirect people’s participation in legislation by influential social factors is more regardable and questionable. Islamic republic of Iran by accepting democratic institutions is not out of this structure. But the extant and qualifity of this kind of participation is affected by the necessity of conformity of laws with Islamic standards. This reality has developed especial social factors and effects which distinguishes the system from others.

The prohibition of torture is considered as jus cogens which, has its specific legal effects. Furthermore, international law has criminalized torture and stipule that perpetrators of torture should be adequately prosecuted by any State. This paper attempts to describe briefly, the international practice against torture and to address some deficiencies in this realm with regard to violations toward this rule in international level.

The crime of worthless cheque has been changed-over chiefly since the first criminalization under public criminal law 1304. Sometimes legislator in consequence of social and economic conditions has taken sever criminal attitude. However, he has often taken gentle criminal attitude. The last modifications of the cheque issuance crime, which was ratified in 1372, had been improved in 1382. Some of them were such as decriminalization from article 13 of 1372 Act. And punishment scaling with due attention to inserted cheque amount. It is possible to say that the legislator has taken gentle attitude rather than the former. In this article, we consider about this Act. Improvement in 1382 from the point of view of techniqual criminal law.

Procedural Justice concerns the way and method of drawing Justice System. Questions about it are remarkably persistent. We can find here different Theories: What is the aim of civil dispute resolution; Accuracy or solving the conflicts of interests anyway. Some others, in the utilitarian tradition have argued that procedural fairness can be reduced to the calculation of costs and benefits. The third theory called Participation that assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. The participation is not well-defined, because it rests on uncertain and varying foundations: for this reason, we will investigate four interpretations for it such as: Dignity, Satisfaction, Rational discourse and finally, Gaming.

Decriminalization limits and narrows the sphere of criminal law through two methods: to eliminate the criminal description of special behavior (a) and to remain or not remain it in the public jurisdiction of other formal control mechanisms (b). If it is left in the public jurisdiction, it requires non-criminal sanctions. Therefore, decriminalization is a process that at least, has got two outlooks: first, the criminal justice system that justifies its existence and necessity; and second, other non-criminal powers and agencies, especially executive organizations that accept the new role so as to have control on the behaviors which will not be considered as crimes. This practice can be justified based on needlessness to the penal sanctions and the ability of non-criminal agencies to control undesirable acts. Decriminalization, on the above explanation, is a change process that needs to management through a practical program. If it is managed as well, it can lead to useful conclusions and achievements by public acceptance in the society. Such a task in Iran which always encounters the curse of hurriedness and seeking to protect sectional interests and intersectional non-harmony has demanded and does demand more endeavor and thoughtfulness.

The rent for ownership agreement is an agreement, which its virtue, the object of transaction is rented provided that the ownership of the object of transation to be trasferred to tenant in case that all conditioins of agreement and installments of the rent paid by tenant. This agreement is among the legal instituions that although has no jurisprudence background and is not mentioned in eivil law, but is accepted in all of our legal sestem. The reason may be that despite of similiarities and differences with similar legal instituions, it has some advantages toward them, e.g the legla indentity of thes agreement is rent and it is differen with sale on installments, optional sale and suspended immediately after the agreement but in the rent for ownership will not be obtained for buyer before obtaining suspender and having and holding the object of sale is not legal, but in the rent for ownership toward the interest of premise and is correct. So we conclude that the condition of ownership in the rent for ownership is a resull condition. General speaking, the agreement of the rent for owership wich is a necessary, changeable and ownership agreement an can be on house,land or and other goods in various sectors like agriculture and servicess and the general principles on the parties of agreement is depending on the lease agreement.