THE JUDICIARY’S LAW JOURNAL
Year:2012 | Volume:76 | Issue:79|Papers Count:10

After rehabilitation of prosecutor’s offices in the Iranian judicial system in 2002, the proceeding and sentence issuance stage was assigned to the criminal tribunals, and other criminal proceeding stages including crime detection, accused’ prosecution and investigation and in general the primary investigations and ultimately enforcing the criminal judge and punishment of offender was assigned to the prosecutor’s office. Contrary to the interrogator that principally is independent from public prosecutor, the assistant prosecutor as one of judicial authorities of prosecutor’s office is not independent from public prosecutor and as the representative of the public prosecutor is authorized to apply the preliminary investigations in the criminal cases, moreover to fulfill other duties of public prosecutor. Although the assistant prosecutor is not independent from public prosecutor and is entitled to disagree with the opinion of public prosecutor but yet all decisions made by the assistant prosecutor is not subject to the agreement and comment of public prosecutor. The dependence of assistant prosecutor and necessity of his obedience from public prosecutor is not arising out of and limited to the type and nature of the duty assigned to the assistant prosecutor, and the assistant prosecutor regardless of duty assigned by the public prosecutor shall obey the public prosecutor. In this paper, in addition to identifying the position of assistant prosecutor in the prosecutor’s office, the scope of his independence from public prosecutor and its principles and the validity of decisions made by this judicial authority is considered.

International Law, by referring to the vital national and security interests has been used as a shield against legal’s, as an instrument to escape from legal obligations and as a justification for breaking up the treaties, therefore it limits the appliance of International Law Rules especially International Humanitarian Law, yet claiming of the observance of International Law. This notion and other similar concepts, are considered as one of the main obstacles against development in universalizing International Law especially IHL, because It can cause intractable misuses by states as well as justifying anything by referring to national interest.IHL norms bring a serious challenge to the governments holding the fundamental logic of sovereignty and national interests. According to primary precedence of human norms in international law, The vital national interests only in compliance with the international law rules and provide the ground for legitimate government functioning. Therefore, governments have always tried to explain and interpret the vital national interests in a way that results the least loss to the universal international values.

The task of judge is to discover the truth. There are various theories about the truth. this paper studies three important theories (correspondence, coherence and pragmatic theory).Correspondence theory follows a realist perspective and its logical foundations are acceptable. This definition is also accepted in trials. Coherence theory, because of different considerations and some philosophical views, can be a criterion of truth in some legal matters. Also in pragmatic theory, truth is defined in the light of notions of profit and expediency. Judge should search for philosophical concept of truth and the terms of legal truth and formal (relative) truth should not change its concept.

The notion of jurisdiction depends to the nature of judicial acts; because two powers called Executive and Judicial in each government are administrator body in regard of Legislative power. In Iranian legal system, in the other word, the situation of Adjudication institutes is less discussed and their classifications have not been studied exactly as should be. In this legal system we can see day by day the increase of institutions’ numbers such as Commissions, Councils and Boards between Adjudication institutes but it is not clearly shown that if Legislator seeks to create a Court or Tribunal by they or its intention merely is creation of some institutions for administration of law in strict sense. Many Substantive and Formal criteria have been suggested for distinguishing judicial acts which foundation of legal system to each one can disorder its supposed order. In this research, after studding and evaluating these criteria, we have endeavored to introduce Adjudication institutes orderly. The result of this article can be summarized in these phrases: “a jurisdiction is a third or an impartial institution that decides about a juridical conflict decisively and certainly by applying substantive and formal rules”.

The main purpose of this paper is to provide a justifying approach to rights embedded in international documents in light of Rawls’ Global Theory of Rights and, then, evaluating them from the said approach. Indeed, it is endeavored to distinguish justified rights from unjustified claims under the rubric of rights. In this regards, John Rawls in his book, Law of Peoples, characterizes human rights as non-dependent on a particular ideology and religion, necessary, global and minimalistic. This paper, by evaluating human rights on the basis of the afore-said criteria, concludes that some of the alleged rights by international documents are unjustified and indefensible. Rather, they are ideals which, in any society and based on their common comprehensive doctrines and understanding of justice, are to be alleged and pursued. In the end, a reference shall be made to the necessity of formal and substantive criteria for the use of human rights concept and also to negative consequences of “rights inflation”.

Criminal justice system in its new guidelines follows a logic that could through it regain its lost position once again. This new logic, with the name of new penology or actuarial justice, has created extensive evolution in this system, so that everything in it has gotten a managing frame. Hereafter, crime and criminal have became understandable in the concept of risk; techniques of criminal justice systems have gone along with this changing in policy and even in some cases, new models of it have been made. Whatever has been explored in the present paper are the new developments that have occurred in this regard.

Commercial disputes in the international arena are basically settled through arbitration mechanism. In the course of arbitration, as a suitable and reliable authority for resolving commercial disputes, the issue of objections as a form of parties’ defense is introduced. Objections in terms of the impacts they might have on arbitration process, could be categorized into the objections with the effect of permanent and temporary impediment (to the proceedings). Although most applicable governing laws on objections are among the supplementary rules and considering them depends on expressing consent by the party or parties in dispute as the case may be, however some of the objections are mandatory provisions and are related to the public policy. Despite the fact that the Iranian Law on International Commercial Arbitration in its part is regarded as a commendable evolution in the international commercial arena, since it has not elucidated the issue of objections and merely has discussed its totality, leads it to encounter a fundamental gap. The study proceed with objections with temporary impediment effect and arbiters decisions by considering parties can what objections proposed and what are their effects in international commercial arbitration.

Argues that the trial court’s judgment is subject to court proceedings and the parties through would cause assertiveness The definition of a result obtained Firstly, this method is similar to full and logical manner in which the subject and predicate are the basic case, the inference is obtained; Second, with foundations of legal reasoning is undeniable that the judicial process is understood to refer to any predicate without crossing the line of argument he rejected; Thirdly, it is a product of judicial reasoning logic support tools are based on the logic of science, the discovery of unknown cases, Fourthly, knowledge and understanding of the demands of the case, the argument is directed; And fifthly, the judge focused on the science knowledge through reasoning, not a science person. The topics discussed in this article, which is based on the lines cross - sectional study, is formed.

It is desirable for creditor that the object of obligation to be ensured more and more. The beneficiary of contract is searching a better way to acquire his demands. On the other hand the debtor in good faith is attempting to perform his commitments and concerns about his discharging. So it is also ideal for him to prepare a better method to absolve from contractual obligations. Alternative Obligation is one of the methods that provide this target for both parties. In these obligations instead of undertaking one object, the debtor, undertakes two or more objects so that it would be possible for him to perform one of them of which would fulfill his promise. This legal establishment has been recognized for many years in the West and possesses bases in Shiite jurisprudence that can be used for its validity recognition. In this research we are dealing with recognition and quality of applying these obligations through a comparative study between jurisprudence and other countries basics.