PRIVATE LAW STUDIES
Year:2012 | Volume:42 | Issue:3|Papers Count:21

Use of leasing is one of main methods for modern companies and commercial unities to finance. Leasing industry is scion in Iran add requires pass of particular regulation for full of its legal gaps. Present contract of Iranian leasing companies is the simple hire-purchase. Hire-purchase is a new topic that cause of today requirements at recent years, has been entered into legal arena. This method not only is flexible with future vicissitudes of clientele and liquidity of leasing company, rather in time of contract isn’t responder of clientele variety of need. It looks like, by combination of Hire- purchase with contract of settlement and change of computation method, be able to accede to noted purposes. Aim of this article is survey of legal dimension of Leasing Companies and their Transaction.

For each country, national security in the most urgent and significant value and need, so each government tries to justify its policies and strategies in order to reach and preserve national security. Acquiring national security is, people should share national interests by haying health, land integrity, independence, power, credits and all the values generally. They should be sure of this security. It is axiomatic that comprehensive protection of national security needs synergy and harmony among different institutions and working as a whole unit; hence, Leadership institutions, Supreme National Security Council and Revolutionary Guards should supervise these remarkable deeds regarding their legal and legitimate duties in Islamic Republic of Iran. These institutions have to make decisions and apply them properly in order to put defense and security issues in order.

Judges should not be regarded as mere speakers of and tools in the hands of the legislature. They are as actors animating the laws enacted. The judges’ acting can be justified on three grounds: limitations of law-making, including lack of expertise in and inattention of, the being expedient of, and purposeful acts of legislature, being societies in transition, and impossibility of anticipating all cases and situations as well as the inherent indeterminacy of language in some cases; correcting the legislature’s deviance by means of interpretation based on the principle of separation of powers; and updating the meanings of the criminal laws and adapting them to prerequisites of collective life at the time of interpreting the laws. The judges’ acting reflects in three forms, i.e., exploring (vs. making) the meanings of criminal laws, effects of their fore-structures on interpretation, and formulation of the purpose of criminal laws.

The first account of the principles of proportionate sanctions was utilitarian, and was provided over two centuries ago by Cesar Beccaria and Jeremy Bentham. Failure to observe the principles of proportionality in sentencing would be weaken the deterrent function ef punishment. Currently, theory of Positive General Prevention is the dominant theory of punishment in German crirninallaw. This term was constructed in Germany to make a different between traditional term “general deterrence” and “positive general prevention”. This theory emphasizes on positive function of punishment through strengthening the morality, supporting the desired attitudes and ways of behaving, and strengthening the respect and trust in law. The final purpose is crime rate reduction in society.

Article 59 (sl) of Islamic penal code recognizes the parental treatment in the form of punishment, as a justification as long as it is reasonable. As Rule 167 (constitution) sets it out, the vagueness of laws-so 59 (s1)-has to be settled by referring to Sharia’s documents where there are four restrictions on the bodily punishment of children; (a) being at age 7, 8 or 10; (b) failing to do prayers; (c) there won’t be an injury and; (d) the treatment should be out of anger. The paper brings these requirements into focus.

Labor right is one of rights that has been recognized for aliens by generic documents of human rights, conventions of international labor organization (lLO) and internal acts. Aliens’ occupation in Iran that roots in ancient age, from Iran’s membership in ILO until today has moved toward evolution under influence of fundamental Labor rights conventions consist of: prohibition of forced labor, non-discrimination in employment and occupation, freedom of syndicate, effectual deletion of child labor, conventions with subject of migrant workers’ occupation such as “Convention concerning Equality of Treatment for National and Foreign Workers as regards Workmen’s Compensation for Accidents” and other generic documents of human rights. This essay that reviews deal of international documents effectiveness on Legal Status related the legal migrant workers’ right of labor in Iran, ultimately has presented some mechanism for support of impressionability Predominant Legal Status for them.

After positive vote of 120 country to Rome statute and approval or accession of 114 country (almost tow third of world states) till the end of 2010, hopes to fight against impunity and ending barbarity entered to a new stage and achieving universal criminal justice goals as a new attitude of global criminal organizations like ICC in punishing core crimes criminals get dominant willing. But because this new tribunals affects states sovereignties and super power authorities or power abusers in breaching fundamental human rights (Noyau dur), a range of problematic countries refused accessing to Rome statute, so strongly tried to not allow the ICC achieving its goals and encountered justice against politick. This article analyses the most important political challenges of Rome statute.

In this article, it is argued that Members States do not normally incur liability for damages caused by the acts of international organizations of which they are members. Member State liability can only be found in cases in which some intervening state conduct in functions of organization can be established, as is laid down in Part 5 of the Draft Articles on the Responsibility of International Organizations, drawn up by the by the International Law Commission in 2009. A strict interpretation of the principle that the organizational functions should be respected may prevent Member State intervention in the affairs of the organization.

Addition of fault to element of tort is one of controversial issues and is long eval in the different legal systems and the attempts to concentrated the different views are still continued. Most of the Iranian civil Jurists with reference to some of the civil code articles, consider fault as the fourth element of “Etlaf” and also in their writing, knew it as one of the distinguishing elements between “Etlaf” and “Tasbib” While considering the “Feghi” root of “Tasbib”, this question raises whether the articles set out in the civil code are of “feghi” origins or they have been adapted from the French civil code, particularly it is inferred from the writings of the “Emamiee Fogaha” that, important point is to ascertain the infliction of loss and necessity to compensated and bifurcating “Etlaf” in to “Tasbib” and “Mobasherat” is of no important.The present study while examining the “Feghi” origins of the above mentioned question, Finally criticize the absolute rejection or acceptance of conditionality of Fault in creating tort in “Emamie Fegh”.

Unwillingness of the competent state to prosecute and investigate an international crime within the jurisdiction of the International Criminal Court is one of the aspects of admissibility of a case in the court. Unwillingness is originally a subjective concept and is capable for a vast interpretation therefore may endanger the basic goal of complementarity principle i.e. respecting states sovereignty and priority of national jurisdiction in performing justice. By the way this accepted concept in the Rome statute is one of the tools to end impunity of international criminals of the most heinous crimes and help the prosecutor.

Computer spying is considered as a crime, inducing computer as a criminal subject and material part of it. It is not possible, before discovering computer, so, most countries have no passed rules a bout it. Internal Law of our country has investigated activities such as illegal attaining into secret data, damaging security and national interests ‘in case of disclosing them, as computer spying criminology. This study considers what is computer spying and it’s role on occulting spying or related crimes.

One of the vague issues in relation to cases involving drug abuse is the necessity of determining the purity of drugs. Gaps in related laws have created confusion for judges. Some believe purity levels of drugs used by criminals must be considered in the processing of their cases as well as in their punishment. Since the harsh processing sometimes involves death and life, the controversy is especially significant. This article explores dimensions of the said controversy. The aim is to help legislators and judges in their decision-making informed by law. Based on the present work, determining purity seems to be necessary.

Despite the title of intellectual property law, this legal system differs from the classic property law in several aspects, inter alia, the time of protection, the standards for protection, the scope of protection and the enforcement of intellectual property rights. These limitations and differences are largely because of the economic considerations regarding different kinds of positive efficiency -dynamic and static efficiency -which determine the structure of intellectual property law. While the grant of the exclusive right is due to the dynamic efficiency considerations to encourage the creators and innovators, the considerations of statistic efficiency and wide access of consumers to innovations ,cause limitations of this legal system. As a result, the necessity of managing trade-off between incentives - access should be a leading principle of policymakers of intellectual property law in determining the structure of the system and degree of protection, whether on the national, regional or intemationallevels.

About electronic signatures there are more or less some wntmgs concerning their legal aspect. But in those writings there has been a little attention to credibility and evidential value of the electronic signatures. Some questions and ambiguities despite being set before. has not been answered at all or answered unsatisfactorily. Meanwhile, some authors have made mistakes and some have set trivial subjects before. Present article deals with the subject matter under the headings: definition of electronic signature, identification of the signor, sufficiency of the electronic signature, qualifications for secured electronic signature, valid and reliable signature, evidential value of the electronic signature, and at last electronic signatures certification service.

This is the obligation of judge in civil trial to finding substantive rule of law which is governing to a case in current resource of law. As an important role, it depends to have an accurate acknowledge about rule’s resources and applying it in governing legal system. In Iranian positive law we can see two rule of law concerning this obligation, first in Principle 167 of Constitution and second in article 3 of Civil Procedure Law. In despite of accepting the Civil Law exigencies in our legal system, after the Islamic Revolution our country have chosen the Islamic approach concerning judge’s role. This approach is an area larger than Civil Law system in comparison. Fitva and Islamic reliable resources have been observed in the other side in despite of Law’s premier place between other resource. The authors are trying to justifying this idea that the judge’s position in finding and applying substantive rule of law has been increased after mentioned revolution in comparing before that and Civil Law countries.

The Social Security Act is called as a new branch of law. One of the important sections on social security criminal Act is the section 97 which in this Article will be studied with the aim of explaining of the Article as one of the rules of Social Security, pathology and extending of the law literature of social security. This study shows that, while the 97 section creates and states the new and specific crimes in this area, its criminal rules is not accordance with the general and specific aims of the legislative.

Principles of judicial review in administrative law ate basic criteria developed through judicial decisions. Most of these principles have a legal value in modem administrative law. In this paper some of these principles and criteria have been studied in Switzerland administrative law. In this country the legality, equality, public interest, good faith, hearing and proportionality principles have a good place in procedures of Switzerland administrative courts decisions.

One of the women’s problem in the scope of family financial law is the defect and lack of declarative and protective laws. Through the problem, housework women who have quit social jobs because of their husband’s request or protecting family, are experiencing more difficult situation as the men are not interested in paying their rights. More over that, by regarding to the principle of financial independency of spouses in Iran’s legal system, all assets which the husband has required by the help of his wife during common life who has prepared his promotion basis can be posses in his name and by the terminating common life she wouldn’t enjoy them. This essay is going to evaluate real situation and propose a legal article about wife’s partnership in achieved assets during common life.