THE JUDICIARY’S LAW JOURNAL
Year:2019 | Volume:83 | Issue:107 |Papers Count:23

Nowadays, Arbitration is an effective framework for resolving international commercial disputes. Most of the issues related to the international arbitration process allocate for the status, rights and obligations of disputant parties and the arbitrator. The Arbitration Agreement which is the legal basis of the arbitral proceedings, only creates the legal relationship between disputant parties, therefore it does not usually deal with the legal relationship between the arbitrator and disputant parties that is effective in their mutual rights and obligations. The authority and position of the arbitrator empowers him to agree on his rights and obligations with disputant parties and whenever the expectation of the parties may endanger the arbitration process, he will stand against the unreasonable demands of them and will organize their rights and obligations within a legal formal framework. The best framework accepted in some jurisdictions is the establishment of a separate contract known as the “ arbitrator's contract” . The contents of this agreement include the most important rights and obligations of disputant parties and arbitrator which affect their position.

An innovative legislation in the new act of family support is observed in article 4, regarding the authorities of religious minorities. Concerning the competence of these authorities and their relationships with the national courts, the Iranian legislator has denied the competence of the general courts in hearing the minority affairs based on their religious commonalities and certain rules and habits. Moreover, knowing that these authorities are competent to hear the personal status and non-litigious affairs of the religious minorities and being legally recognized to do so, they can be, to some extent, considered as an exceptional part of the judicial system. As a result, their decisions are valid in the courts and are ratified and enforced if they are not contrary to the public order or morality.

In criminal proceedings, victims are entitled to certain rights that are sometimes common to both parties, both the accused and the victim. One such right, which is the cornerstone of a fair trial, is the right to a hearing by a competent court established by law and to have a qualified attorney familiar with due process present. The other right is the independence and impartiality of the court and the timeliness of the hearing. Safeguarding of these rights, both in relation to the accused and the plaintiff is imperative, while any lack of it will definitely harm public trust with dire consequences for the legal system. The main question of this paper is whether the fair trial criteria, particularly the ones mentioned above, are satisfied in the case of medical malpractice victims in Iran’ s current criminal law. To find a conclusive answer to this question, the author shall apply the threefold criteria of hearing by a competent court over medical malpractice cases in Iran, which are independence, impartiality of the court and hearing within a reasonable time.

Based on comparative and criminological studies done recently, the new criminal laws, legislated as the Islamic Penal Code are promising a new discipline in Iran's legislative and judicial criminal policy. Undoubtedly, the adherence of the judicial authority to the systems and practices for choosing the type and the amount of punishment will have a fundamental impact on the criminal justice system to achieve its stated goals. The lack of comprehensive guidelines for determining punishment in the Criminal Code has led to the formation of non-consistent procedures in Iran's criminal tribunals, which not only resulted in the maximum and unjustified use of penalties such as imprisonment, but depending on the kind of persuasive or exaggerated judgment of the issuing judge, it has led to the "unpredictable justice", while the type of crime and its condition are the same. Hence, the principled and scientific procedure for issuing criminal sentences requires firstly, a comprehensive and precise review of the courts of appeals against the judgments of the first courts and secondly, at the level of legislative criminal law, the legislator should Use legal materials to determine the principles of the code of conduct for determining penalties. This is mainly to prevent unequal treatment in judicial procedures.

In the current legal system, despite the equality of procedure of proceedings with substantive rules, the legislator has not yet accepted that these two types of law have the same significance. On the basis of this refusal, Violations of the substantive rights always invalidate the verdicts of the courts, but violations of the procedural rights invalidate them only when they are of such importance as to invalidate the vote. But questions that may rise at this point is: “ what are these high-ranking ceremonies? ” and “ can various criteria be used to identify these principles? ” However, the criterion of effective criminal procedure is more consistent with the current law and some other former laws, while the criterion of the basic principles of the proceedings is more in line with the objectives of the criminal procedure.

Inflation affects fulfillment of financial obligations or non-financial contracts with financial effects, such as marriage portion. Inflation makes fulfillment of obligations impossible to achieve or to be reached by delay or be done with distress and constriction. It’ s essential to give Solutions so that the interpretation and execution of contract in a just way is guaranteed and prevents any abuse of individual’ s rights (As mentioned in Principle 40 of the Iranian Constitution and Doctrine of “ La Zarar” ). Means such as cancellation of contract by the obligor using option of impossibility of submission of consideration, granting just deadline to the obligee, adjustment of contract, claim of delay damages or day price in delayed monetary obligations, all may help crate balance between the parties' rights. However, it must be taken into account that making contractual conditions just needs to be in compliance with valid legal principles. Also, a solution for a legal issue is not necessarily similar to the other one due to the special relativity of humanities in general and law in particular and the fact that justice is a relative, flexible and fragile concept.

The commitment of judicial crimes by judges, expresses the existence of defects in both the judiciary system and the personality of the judges. By dividing these objections into structural and individual, it appears that the impact of structural factors on the occurrence of such types of crime is more than individual factors. The structural elements are intended to cover a wide range of issues related to employment, training, pay and benefits, and how to manage the judiciary. In this research, in addition to the documentary method and studying different interviews and questionnaires from 130 judges of the judiciary, the structural contexts of the crimes committed by Iranian judges were comprehensively and objectively analyzed and criticized and finally, some useful suggestions will be submitted. Based on studies made, proper selection and election, proper training, additional and essential in-service training, strengthening judicial independence, the preservation of elites and qualified judges, increasing job attractiveness, along with transparency and accountability of the judiciary, are effective in maximum decrease of such crimes.

An irrevocable agency is the kind in which the client can’ t revoke his/her contract from his/her agency as an obligatory outcome condition of the main agency contract. However, setting the condition in a manner that cannot be dismissed, doesn’ t change the nature of the agency from permission to an eternal phenomenon. With such a condition, the client merely cannot dismiss the agent but for other kinds of permissible contracts, such as its dissolution due to the death and insanity of both sides, it won’ t be influential. This article aims to highlight the lacks and weaknesses of irrevocable agency and presents a new pattern capable for replacing it. The proposed template is a "transfer of sale right contract'' which is qualified enough to compete with death and insanity. ''Right of sale" as one of the components of property right, has the necessary capabilities to replace the permission and representation. The main idea of the author is based on the fact that this capability should be proved and taken into account by the existing legal capacity so that any possible shortcomings may be solved by the legislator.

In this research the author will first review the concept and elements of participation in the process of restorative justice, and then he will emphasize on the importance of the presence of all parties including victims, perpetrators, and the local communities, in conflict resolution of a transitional society. The article also studies the impact of participation in achieving the major goals of the transitional society including national reconciliation and peaceful coexistence. The main question of the paper is whether the multi-party participation in the process of the restorative justice has an impact on the realization of the goals of the transitional society. This article argues that the participation of all parties in a transitional society, as victim, perpetrator, or local community has a great deal of impact in the achievement of these goals, and it provides for both the protection of victims and rehabilitation of the perpetrators and it provides for both the protection of victims and rehabilitation of the perpetrators.

The individualization of criminal writ petitions in the international arena, such as the individualization of punishment, aims to enforce criminal penalties commensurate with the nature of the offense or the characteristics of the offender as predicted in its human rights instruments as well as Iran’ s legal system. Yet every individual’ s dignity must be observed in front of any offender. Nevertheless, this part of the judicial decisions for the accused, in spite of the individualization of punishments, is less relevant to legal texts. The foundations of the individualization of criminal writ petitions are found in various theories of criminology and the legal principles enshrined in international documents and various regulations. Also the way this issue is applied, namely, appropriateness in the determination of writ petitions, in general and the determination temporary detention order in a specific sense, has explicit criteria in international documents on non-custodial orders (The Tokyo Rules, 1990), which necessitates the study of these criteria as well as the degree of alignment of the Iranian legislator, as a member of the UN, in filling the existing regulatory gaps.

One main criteria of any democratic system is to guarantee the rights and freedoms of the community. This will be reserved by the rule of law towards the organizations and authorities responsible for public affairs. In order to enforce citizens' rights, judicial review, as a means of the rule of law, controls the government’ s power. In fact the true meaning of “ judicial supervision” is protecting people against executive agencies by hearing their complaints and petitions. Meanwhile Islamic development Organization (IDO) as a Revolutionary institution, cannot be excluded from the judicial responsibility. By using descriptive-analytic research method, and focusing on IDO as an instance in this paper, this question has been raised: “ What are the main challenges of judicial supervision over revolutionary institutions? ” for answering this question, both the Administrative court and the public Courts have been discussed in two separate ways and as a result, this was the conclusion: The judicial review on this organization is subject to limitations. Causing some problems in both legal administrative and judicial review systems the dichotomy of the legal nature of this organization needs to be explained.

According to article 282 of Iranian civil code, the person who owes another by different reasons, holds the right to choose which payment is for which cause of debt. Meanwhile some conditions are needed in order to grant him this right. The amount of payment and debt is the most momentous of among these conditions. Although it seems that the mentioned article has a supportive nature to benefit debtors and must be interpreted in this manner, yet there are some dubious assumptions that don’ t match with this article. Therefore it’ s indeed necessary for the legislator to change the laws for maximum coverage. As well as above, different approaches has been taken regarding the debtor’ s time interval to exercise his mentioned right. In one hand we can confirm the existence of proofs in article 282 on the basis of deviate from the chosen method in French law and attention to jurisprudential comment in regarding of debtor’ s option. And In the other hand not securing the creditor’ s right at the time of quarrel all together shows that debtor’ s right in selecting one of the several debts – as asserted in article 282 – is absolute with a spread of time for both the payment time and the time the complaint is held.