Year:2004 | Volume:21 | Issue:2 (41)|Papers Count:12

Violence is a phenomenon with various political, social, cultural, economic, legal and criminal dimensions; that is why there are various and different definitions for it. It can be discussed from two perspectives. On the one hand, people themselves resort to violence against each other or against government and on the other hand, the functioning of the institutions linked to official power, i.e., the government, may lead to violence against people. If the first type of violence, i.e., behavioral violence, appears in the form of a crime, it will lead to the legal reaction of government (punishment). The reaction of the government, whose type and limits must principally be determined by authorities, is subject to principles and rules the neglect of each of which in various legislative, judicial and executive stages may lead to violence against people (the second type of violence). The second type, that is constitutional violence, realized in the form of aggression upon individuals' rights by legislature or by officials is called structural or institutionalized violence. It is covert violence, occurring as the result of disfunctioning of criminal justice system and deviation of the fundamental criminal law principles in response to the first type of violence (criminal behavioral violence). In this article, the covert type of violence in the criminal justice system has been discussed.

A survey of the history of changes in criminal law makes it clear that once the concept of "public order" was first recognized and its violation as an essential component of crime was acknowledged in various societies, " the principle of unremissionability of crimes" was accepted. In the Iranian statutory laws, the legislator has also considered two aspects for a crime: public aspect and private aspect. Due to the priority given to the public aspect, the above-mentioned principle was accepted. With respect to those crimes for which the private aspect was dominant, the principle of remissionability was accepted but only extended to those ones which were clearly included in the laws concerned. After the Islamic Revolution in Iran (1979), the religious concepts of "Haqollah" and "Haqonnas" (the right of God and the right of people) were used, by the legislator for public aspect and private aspect of crimes respectively. Crimes for which the Haqollah aspect was dominant were considered unremissionable and crimes for which the Haqonnas aspect was dominant were regarded remissionable. With this change, the number of remissionable crimes was increased. During the two decades of 1360s and 1370s, first the jurisprudence and then the legislation, with due regard to social realities and analysis of religious precepts, emphasized the public aspect of crime and the unremissionability of certain crimes on the one hand and enumerated remissionable crimes as before the 1979 Revolution on the other thus, looking at the subject from a new perspective.

In this article sale of shares of companies according to the statute law, religious resources, and lawyer's points of view is discussed. The findings show that the purpose of using the word "substance" in the definition of sale contract quoted in article 338 of the Iranian civil code is not confined only to tangible properties but it also denotes intangible properties such as the share of commercial companies and financial rights, e.g., copy right, and leasing rights. In this research, the legal nature of sharing which has not been specified in commercial code is analyzed using all other legal rules. It is also specified that firstly, sharing is part of intangible properties not tangible inherent ones, and secondly, it is regarded as movable property not as immovable property. It is argued that by reviewing the historical background of sale contract and its nature, which is a common subject, it is made clear that the transfer of shares through sale contract does not face any legal or common obstacles. Therefore, providing the peacefulness of the buyer and seller, the sale contract results should be applied to the contract and it should not be interpreted through general rules of contract and article 10 of civil code.

In Islamic law (jurisprudence), certitude of judge is one of the effective evidences in the rules of evidence. But some lawyers have denied probative value of this personal assurance in judgment. This article analyzes legal approaches to this subject and reviews original sources of this rule. It is argued that we can accept certitude of judge as valid substantive evidence in juridical procedure. This Islamic rule is not accepted by all and there are some limitations in applying it. It is concluded that only qualified cannon judges (Canonicify Cadi) can rely upon this rule. On the other hand, certitude of judge is not considered as evidence in some cases such as adultery. This study proposes that normal certitude could be acceptable but it must not be sensible or sense datum. The paper also shows some inconsistencies between Islamic jurisprudence and statutory provisions in Iran.

According to the modern Iranian civil procedure code, (enacted in 1379) and in spite of the previous code, delegation to confess is prohibited. The reason for adopting this new approach is obedience to Islamic jurists' doctrines and their evidence in favor of the subject. In this article, the status of this problem in Iranian codes is elaborated and then a discussion is raised with regard to the impediments which face this kind of the delegation in the Islamic law.

Due to the extensive intervention of governments into the judicial internal affairs and the establishment of various official organizations, new dimensions unknown to the judicial jurisdictions have been presented in the social and legal relations. Their emergence necessitates sufficient specialized knowledge in the field to deal with their nature and resolve the points of discrepancy resulting from them. On the other hand, the settlement of these disputes requires quick action and decision-making which is against the current usual judicial routines and civil procedure. Thereby, references such as organizations, committees and commissions for settlement of disputes other than common judicial routines appeared. The question raised is whether such quasi-judicial references with their own proper specialties are necessary. To answer this question, the present study has made an attempt to look into the fundamental theories and concepts in the field to consider the need for the existence/nonexistence of such quasi-judicial authorities. Finally, assuming their actual existence in the system, some suggestions have been made to prevent undue diversifications and bring about some justifiable solutions for making more consistency and conformity in the law system in our country.

The state as the most principal and leading institution possesses public and political power. On the other hand, the theory of political realism by donating the priority and pivotal position to the phenomenon of power and the force doctrine is one of the most enduring and powerful theories in the realm of political science and international relationships. In this article, it has been tried to scrutinize the discourses, theories and various aspects of the state in detail, this institution and the phenomenon of power and the views of some thinkers for and against this approach such as Plato, St. Augustine and Machiavelli are discussed.

This paper addresses the relationship of religion and politics in John Locke's "Letter Concerning Toleration." Locke's eight arguments are discussed and his views on toleration and separation of church and state are analyzed. Locke presents three arguments in favor of separation: 1. the negative effect of state upon the church, 2. social consequences of relationship of church with state power, and 3. Christ's teaching. It's concluded that Locke did not believe in absolute separation of church from state but his version of religion is very weak and personal.

The security of people's right and execution of criminal justice is an essential duty of criminal justice system. If the achievement of this goal is not met, we will confront, crisis in the future. It must be noted that crisis consists of confinement and fundamental interruption in a system. Whenever the movement of the system is blocked and seems unstable or abnormal, we must look for its pathology. The sources of the crisis are different, but the result is common dissatisfaction with the way the criminal justice is operating. The sources of the crisis are behavioral and structural. The most important behavioral reasons are: Politicizing criminal justice system, illegal approach to the principle of separation of powers and judiciary independence, and also, malfunctioning of criminal justice system. The behavioral reasons of the crisis are: inflation of legislative institutions, numerous criminal authorities and over-criminalization, criminality and also standstill in criminal process. The solutions to the crisis are: the achievement of law sovereignty observing principles, attempts to extend the legalism culture and reform in general politics by organizing an effective center which is composed of clear-sighted scholars in legal and social affairs.