PRIVATE LAW STUDIES
Year:2007 | Volume:37 | Issue:2|Papers Count:8

In accordance with classical understanding of the principle of separation of powers, the task of a judge is merely to discover the intention of legislator and to apply it to the facts of cases. The motives behind the achieving judicial security and the existence of factors such as syllogistically form of judicial reasoning and the necessity of deduction of all the results from law has led to the traditional tendency among jurists to present judicial syllogism within the context of formal syllogism.Formal syllogism or deductive reasoning based on formal logic, reasoning possesses a necessary process and there would be no true outcome but one, and there would remain no room for doubt. A precise look at the minor and major judicial syllogism demonstrates that the notion of change of judicial syllogism to that of formal, definitive, and objective is nothing but a naive fiction far from achievement. The impossibility of making the legal concept clear and the existence of defects in and of law, as well as conflict of laws, on the one hand, and impossibility of reaching definitiveness and certainty at verification of factual stage of a case, on the other hand, do not allow formalism and change of judicial reasoning into formal and necessary reasoning.Due to the fact that judicial reasoning is unnecessary, these reasoning, unlike reasoning that are subject to formal logic are not free from the intervention of human factors.The type and quality of that intervention and the usage of this flexibility and broadness by a judge are determined by the characteristic features of each legal system and the foundations concerned.

There are two fundamental subjects in the philosophy of intellectual property rights: conceptualization and justification of intellectual property rights. There is a difference between philosophy of IP rights and 'philosophy of IP Law. While the first one is a first- order knowledge the second one is a second-order one. It means that the philosophy of intellectual property rights is on some philosophical argumentations about a conventional fact called IP "' rights" But the argumentations of philosophy of IP law - if any –are about an existent discipline called JP Law.. Because there is no remarkable difference between the two disciplines (i.e. the law and IP Law), their both methodologies are still the same and so we don't have a philosophy of IP Law independent from philosophy of Law. But there is a philosophical tendency about the nature of IP rights and the ethical justification on the necessity of the acceptance of IP rights in a legal system.There are three difficulties in Iranian legal history on the recognition of the concept of IP rights.1. The conventional abstract property differs from the concrete property. The statement « This house is for A. differs from the statement «This sweetness is for surgeon or «the Universe is for God. These two concepts are occasionally mixed in the traditional jurisprudence and so the IP rights appeared more fictitious and metaphorical.2. Traditional law reduces the property to the notion of physical appropriation and because one can not appropriate the IP rights, it is said that this kind of ownership is impossible.3. According to the Art. 338 of Iranian civil code, the thing which is transferred by sale should be an objective and physical one. So the transferring of IP property confronts with a legal problem.Three theories on the justification of IP rights are:1. IP rights as natural rights: in Lockean theorem property is a thing plus a human work. Ideas are produced by intellectual works and so became the property of the producer.2. IP rights as personality: in Hegel's view, property is the instrument for subjective freedom of human beings and who expresses his expectations in a literal work, renders its owner.3. IP rights as privilege: Peter Drahos following Marx recognizes the IP as a privilege not a right; a privilege which can be withheld by the legislatures.

The crime of computer fraud is one of the most important computer crimes. This crime like the crime of classic fraud is one of the crimes against property. Any kind of fraud committed by computer is not called computer fraud, because the criminals use the computer as a tool for committing both classic fraud and computer fraud. The computer fraud and classic fraud are different in actus reus. Such a difference has caused that the acts ruling on classic fraud are not applicable for computer fraud.Considering the international aspect of computer crimes, some international regional and global organizations have presented definitions for the crime of computer fraud and have recommended to their members to consider them for criminalization. In Iran, computer fraud in the field of electronic interchanges has criminalized, but not in the other fields. Lack of paying attention to technical issues related to computer fraud by Iranian legislators has caused some technical problems in article 67 of electronic commercial code. The articles of draft of computer crimes act have some technical problems too and the provider of this draft could not criminalize computer fraud correctly either.Considering the international aspect of computer fraud, the Iranian legislator should use the international experiences in criminalizing crime.

The right movement of the trade in the current society needs the government's supervision beside to investors trust to the tradesman.Something that encourages the investors to invest and makes them hopeful is assurance of maintaining the money, hoping to get benefit and banning the trademan to waste it. A trademan who uses the people's trust and gathers their money and does the trade, should exceed taking care of the people's money. Any kind of encroachment or dissipation of the trade man is regarded fault and leads to trade man to the fault bankruptcy conviction. The present paper considers the different aspects of fault bankruptcy.

Nowadays, the ever increasing development of criminality phenomenon, along with appearance of modem and various kinds and volumes of crime and criminality; infirmity and inefficiency crisis, as well as the criminal justice system's failure in suing mere penal sanctions in crime preventing, confronting with criminality and reforming criminals; necessity to increase and reinforce the criminal policy plans, and other economical, social, political and criminology factors have drawn attention into the fact of civil society's participations in criminal policy plans.These factors have also brought up a new attitude towards the criminal policy, based on the active and widespread participations of civil society's elements including, criminals, victims and particularly people, in different processes of compilation and execution of the criminal policy, especially within executing processes including: crime prevention stage and reacting to criminality phenomenon stage in criminal viewpoints and schools, which is called "participative criminal policy" People's participation in reactional responding process, which is part of this topic, contains various dimensions and parades, as well as various delicacies and intricacies, and is a controversial issue of great importance.

Although human being naturally tends to have some illegal doings, and his history indicates this bitter reality that one of the preventive ways or treating the guilty people were imprisonment, but as we see in some valuable historical texts due to social political situation at the age of our holy prophet. He didn't establish any prison the same as its common meaning .So the question here is that, with considering the mentioned situation, can we point out the lawfulness of prison in holy Qoran? And if the answer is yes, then which verses deal with prison and how can we prove it? The writer tries to study how prison has been established in Islam, then analyzes those verses which directly or indirectly show the necessity of prison or cautious prison in Islamic society and finally by reporting the viewpoint of popular interpreters and scholars in this regard the writers tries to indicate the lawfulness of imprisonment in holy Qoran. At last by logical arrangement of the mentioned viewpoints the one which is logically and rationally acceptable is given.