THE JUDICIARY’S LAW JOURNAL
Year:2010 | Volume:74 | Issue:70|Papers Count:10

The judiciary has the task of supervision on the performance of the laws in judicial sphere. This task is done mainly through the supervision of the superior courts to the verdicts issued by the courts. Mistake in law, sometimes requires administrative or criminal sanctions, without making the issued verdict invalid; and in some cases it can lead, in addition to the mentioned sanctions, to invalidation of the verdict. To indicate the cause of the invalidation of the verdict, the legislator has used the phrase “mistake”, but it seems that the deliberate acts which make the verdict invalid all have the same effect. So, it seems preferable to use the phrase “infringe” instead of the phrase “mistake”. The present paper considers the infringes which lead to invalidation of criminal verdicts.

Although it is a long time since the advent of quiet title claims in Iranian legal system, legal complexity and disagreement regarding proceeding or denying this claim has not been quite removed yet and the legal procedure has not reached a certain result concerning subject. Meanwhile the verdict of Full Bench of the Supreme Court stating that dispossession of immovable properties is secondary to possession and claiming the dispossession before possession proof is not acceptable has not only not ended the disagreement but also raised it. Issuing this verdict has caused many courts to consider the dispossession claim contingent upon possession proof via registered official documents or peremptory possession verdict of court and oblige the plaintiff of the dispossession or similar claims, to show them and otherwise deny the claim; while showing these documents may be subject to difficulty or excuse. It is suitable to distinguish among properties in different registration conditions and not to always oblige the plaintiff to show these documents. This prevents initiation of complex and sometimes useless claims in courts.

One of the controversial issues in Islamic Criminal Law is the philosophy and purpose of punishment in Islamic religion. The interpretation of this issue has caused controversy between the text-oriented and the purpose-oriented. Upon this basis, some believe that the purpose of punishment in Islamic religion is castigation, special and general prevention and victim’s relief, and others are of the opinion that in Islamic Criminal Law, the main goal of enacting and executing punishments is the chastisement, correction and rehabilitation of the offender; hardship is not the final goal but instead depends on the kind and execution of punishment.

One of the most sophisticated problems of criminal law and in particular murder is the proof of causality relation. By “causality relation” we mean the cohesion between the conduct of murderer and death of the victim such that the conduct has yielded the death. One of the discussions open in this regard is that of causes stronger than perpetrator. Based on religious jurisprudence and in consequence the Islamic Punishment Act, on gathering the cause and perpetrator, the perpetrator is guarantor, unless the cause is stronger than the perpetrator. In this paper by criticizing a verdict, we study the concepts of cause, perpetrator and causes stronger than perpetrator and will later criticize the verdict.

In cases of damage, we sometimes face a situation in which the physical, mental, social and economic conditions of the injured party can influence the damage or its amount; in these cases, the question is can the agent rely on these conditions to reduce his responsibility and if yes, under what circumstances. It seems that, considering the general inclination in the most of the legal systems in the world, it is better to distinguish among different conditions of the injured party. Also, we should believe that the agent can rely on these conditions to relieve his responsibility in two occasions. First, when the physical, mental, social and economic conditions of the injured party causes the damage such that if he/she had not been in that conditions there would have been no damage. Second, when the social and economic conditions of the injured party aggravates the damage. However, in these cases the intention of the agent or prediction of the injured party’s condition by the agent, prevents the influence of this condition on the agent.

In many legal systems of the world, liquidated damage has an almost fixed meaning and is a price which parties set, so that in case of a breach on the part of the warrantor), s)he pays it to the warrantee. On the other hand, the punitive damage is a kind of damage which the court condemns the agent to pay in case of attaining a bad faith, intention or negligence on his/her part; thus, unlike liquidated damage, is more deterrent than remedial. Different legal systems of the world face them variously; such that these two entities in some countries like the United States are used widely and sometimes in some countries like England have faced limitations. In the Iranian legal system, the punitive damage is only issued in international actions and in reciprocity. So in internal claims, entities like liquidated damage, moral damage, late payment damage or even atonement have to be used. Despite this, in some cases none the aforementioned entities is a suitable substitute and in the Iranian internal law the need to establish the punitive damage entity is felt. Although liquidated damage has sometimes penal and remedial aspects, due to the actual damage being less than the liquidated damage, these two entities have several differences; including the fact that the punitive damage, unlike liquidated damage, cannot have remedial aspect. Also, the court adjusts the amount of the punitive damage not the parties, and there is no need for attaining a kind of intention or bad faith.

McDonaldization is an official process in which the principles of fast food restaurants are exercised. The McDonaldization of various social institutions has succeeded because it provides advantages over other, usually older, methods of doing business. It has made McDonaldized social institutions bureaucratic and rational in a Weberian sense and, thus, more efficient, calculable, predictable, and controlling over people (often by nonhuman technologies). The principal problem with McDonaldized institutions, and another characteristic of the process, is irrationality or, as Ritzer calls it, the “irrationality of rationality.” A primary purpose of this essay is to expose some of the irrationalities of “McJustice” and to suggest some possible responses to them.