THE JUDICIARY’S LAW JOURNAL
Year:2018 | Volume:82 | Issue:101 |Papers Count:12

The contradictoriness is one of the fundamental principles in any proceedings. However، the concept of this principle in the criminal proceedings which has a fundamental difference with civil procedure especially because of existence of the preliminary investigation and the possibility of taking decisions without listening to statements and reasons of criminal claim parties، also the limits of implementation of this principle are not clear. So it is necessary to considering how to apply this principle، particularly in relation to the Criminal Procedure Act 1392، which seeks to further the adversarial criminal process such as a civil proceeding. contradictoriness in criminal procedure means that no decision against one of the public claim in any stages of the proceedings (prosecution، investigation and trial) should be made just after hearing testimony and considering evidences of public claim parties (accused and prosecutor). This principle is not explicitly mentioned by Criminal Procedure Act 1392 but the contradictoriness implicitly is accepted and the most important examples of implementation of this principle in this Act such as adversarial processing in the preliminary investigation stage in forgivable crimes and in the trial stage in the court، accessing to lawyer، prohibition of obtaining any defense bill، new document and evidence pursuant of announcement of termination of proceedings has been mentioned. However with regards to the unequal status of public claim’ s parties and international documents emphasis on improving accused's status through using human rights instructions including applying of the principle of contradictoriness in the criminal procedure so here we will mention examples in the Criminal Procedure Act 2013 in violation of contradictoriness against accused.

Sentencing for cybercrimes as a formal and mandatory response is the most important way to deal with these crimes. Sentencing means judge discretion for selecting proper sentence for convicts of cybercrimes. Sentencing is applied in three states: change of legal punishment، imperfect execution of sentence and non-execution of sentence. At first glance، sentencing for cyber criminals is similar to other criminals but differential legal penalization leads to differential sentencing. Differential approach to sentencing for cybercrimes is based on contradiction relationship between cybercrime and cybercriminal. As much as cybercriminal deserve for easy sentencing for due to factors such as age، gender، location of offense and its circumstances، talents and high qualities، vice versa cybercrime deserves rough sentencing due to widespread damages، easy commit of multiplicity of crime، commit in different places، multiple challenges for cyber forensic and prosecution like anonymity. The importance of sentencing is depends on understanding the conflict between deserves of cybercriminal and concerns of cybercrime.

In recent section of previous civil procedure law (article 728) was mentioned that damage can be caused by destruction of property or can be generated by loss of profit which was resulted by performing of an obligation. This verdict put an end to all conflicts about loss of profit and gave right to creditor to his definite deprivation benefit beside property casualty and increase of his debts. After Islamic revolution and constitution passage in 1358، According to the forth principle: "All civil، penal، financial، administrative، cultural، political law and other ones should be based on Islamic principles. " This important principle emphasized that all provisions should be Islamic. Legislator a long time after the Islamic revolution in second waver of article 515 of civil procedure law approved in 1379 that regularly should be constructed on jurisprudence noted that: "loss of profit cannot be demanded" and accordingly generated a profuse conflicts among scientists. In this essay we want to say that all reasons in irreparability of loss profit can be refuted and vice versa، there are many reasons against first viewpoint. As a result legislator deduction from jurisprudence resources was not correct. Accordingly not only second waver of article 515 civil procedure law approved in 1379 is contrary to the constitution especially forth principle، but also it does not have compatibility with jurisprudence basis، consequently its reform is requisite.

More than a century ago، a great revolution occurred in Iran، the fundamental aim of which was to establish a rule of law system. Accordingly، the concept of law has been one of the most essential though challenging concepts of the constitutionalist movement in the country. This issue is so significant that we may seek the root of the Iranian constitutional crisis in the failure of providing a clear and workable concept of law. A serious impediment in this regard was the old concept and system of Shar`، which prima facie left no room for law. Shari`atist thinkers took two approaches to the relationship between law and Shar`: compatibility and incompatibility. Not only did the compatibility approach believe in the possibility of combination and sometimes identity of Shar`i and legal rules، it finally gave the upper hand to law and its requirements. One of the fundamental disputes related to the legislating authority. Shari`atists ultimately embraced legislation by the human being. Nevertheless، this brought about controversies and debates on the last prophet-hoodness of Muhammad (pbuh)، religious innovation، and rational preference. This paper shall analyse the concept of law from the perspective of Shari`atist thinkers living during the Iranian Constitutional Revolution era، on the basis of their works and the related documents. This analysis will lay the historical and theoretical ground for the similar and still unresolved problem under the legal system established after the Islamic Revolution in the Country.

Most obscenity crimes are committed secretly. The disclosure of these offenses، due to their connection with the reputation of the citizens، has devastating effects on the perpetrators and the community. Hence، although from the point of view of Islam، obscenity crimes are condemned; but the criminal policy of Islam is based on the respect to the privacy of citizens. The implementation of this policy will prevent unnecessary disclosure، normalization، and ultimately prevents from spreading them. Therefore، the legislator of Iran declares the prohibition of prosecution and investigation of these crimes in accordance with the criminal policy of Islam in the Criminal Procedure Act 2013 and only prescribes it in exceptional cases that the expediency of prosecution and investigation is more، and of course this is bound and limited. These limitations include exceptions to the principle prohibition of prosecution and investigation، the prosecution authority، the extent of the judge's powers، and so on. The present paper seeks to explain، justify، and criticize the approach of the Criminal Procedure Act 2013 to obscenity crimes.

From several decades ago the legislator nationalizes all the land and building of the jungle lands and grasslands because of the enforcement of sovereign. Therefore، those kinds of lands because of being recognized as jungle or grassland were called national lands. Following the act of legislator، a lawsuit under the title of lawsuit objection to the recognition of national land was formed in our legal system which enjoys special complexity because of the multiplicity of plaintiffs and defendants. Accordingly، having given a description of national land and explaining its aspects the present essay along with element of relief has reckoned and considered the plaintiffs of lawsuit in five groups (Land owners، garden and installment owners، public legal personality، farmers owning nasaqi lands and non-governmental organization) and the defendants in three groups (Natural resources of city offices، land owners and garden and installment owners and farmers owning nasaqi land and housing and urban development organization).

Every nation selects one of evidence systems or a combination of them based on judicial policy، purpose of the trial as well as the trust level of legislators relative to judges. Affected by divine religion the aim of which is providing justice as well as spiritual and worldly happiness for human، civil justice system of Iran is based on Islamic justice، the basic and judicial principles of which are conscience and hearty confidence of evidence، has regarded its goal to discover reality which is ideal and objective of hearing. To this purpose، along with changes in legal systems as well as development of justice thoughts in developed countries، the rules of civil proof have developed quickly toward extending the judge's power with the aim of achieving real judgment and realization of justice. With changes in the scope of judge's authority، removing restrictions in proved value of testimony، and developing its scope in terms of allegorical and manner of evidence، and lack of restrictions on the size and diversity of judicial circumstantial evidence، free evidence system has dominated civil procedure in Iran. With this dynamic، that is performed only in the framework of the principles of procedure، According to this judges could make decisions by any logical and conventional evidence that leads them to the truth.

Due to exchanged contracts، failing to perform the obligation by each of the parties leads to the breach of contract. According to the principles of international commercial contracts and international convention on sale of goods، the obligee can terminate the contract for fundamental breaches. Violation of fundamentals depends on the form of obligation and the importance of harmful consequences arising from violation. But in the convention on sale of goods، fundamental violation of contract is merely depends on contract violation. In Iranian legal system، there is no meaning for fundamental violation and the sanction of breach of contract depends on the contract subject. If the contract subject is definite object so according to the case، one of the legal options in the civil justice system will be used but if contract subject is thing of a general nature، act or forbearance، the obligate is bound to fulfillment of certain obligation، otherwise the obligee has the right to terminate the contract. According to some of law articles and jurists vote، the primary termination theory can be accepted beside the provisions of international commercial contracts and international convention on sale of goods so in Iranian legal system، recognition of termination right arising from fundamental termination of contract is consistent with legal and religious principles. To comparative study of fundamental termination، two factors should be considered: variety in sanctions of contract termination and respect to aggrieved party. These factors should be considered in domestic law as the basis of the rules amendment.

Paper signing is the key to authentication in traditional banking; this traditional form of signature has changed in new banking (e-banking and virtual banking) and become a simple and secure electronic signature. All services provided in modern banking require the issuance of electronic signatures from users، the context and structure of the new signatures is such that it distinguishes the types of crimes from traditional signature. Therefore، this article intends to adapt the technical structure of electronic signature with the definitions given in the e-commerce law via field and library studies، So based on this description، compare the con-computer forging and unauthorized access in traditional and modern banking، obviously، this review can be a prelude to the undeclared technical areas of e-banking identified and in this way consider the appropriate conditional and technical preventive measures in the modern banking.

Energy grids have not been developed in all countries equally and either transmission and distribution lines have some technical restrictions. After restructuring of energy industry، especially gas and electricity، free access to transmission and distribution grids seems necessary، because it is not affordable to make different grids for each company. Free access to transmission line is related to companies acting in energy section and distribution line is related to consumers. By considering the increase of foreign investment in energy and other sections in recent years، equal treatment is very important by system operator on free access. In spite of that، because of some technical restrictions، equal treatment is not possible and this may lead to breach of international obligation by host states. We are going to answer the question that weather the different treatment on access to energy grids shall be deemed as an international obligation by host state and if NO، how it will be justified.