THE JUDICIARY’S LAW JOURNAL
Year:2018 | Volume:82 | Issue:102 |Papers Count:11

The Islamic Republic of Iran is in terms of the number of criminal population، in the eighth and in terms of the number of pre-trial detentions in the ninth place in the world. An increase in the rate of prison population from 172 in 1993 to 287 in 2014 and an increase in the rate of pre-trial detention from 39 to 72 in the same period are clearly showing that Iran is experiencing a huge increase in the criminal population. The growth of the rate of pre-trial detention is one of the main causes of penal population growth and the subsequent overcrowding in prisons in Iran. Increase in the rate of pre-trial detention، in turn، results from the legislative، judicial and several other factors. Expansion of substantial criminal law interventions-through the widespread criminalisation and imprisonment، war on drugs and the lack of adequate criminal measures to replace non-custodial measures and eventually legislature's weakness in regulations relating to the custody are the most important factors including legislative and excessive reliance on and inefficient judges and prosecutors to control crime، and minimal use of non-custodial measures and structural weaknesses in the judiciary، are also some other causes of the increase in the number of the defendants waiting for trail.

Marriage creates different rights for woman، including the right to receive dowry، alimony، etc. But in some cases it is possible that the man be unable to pay it due to some new issues that have been arisen، for example insolvency. So it can be said that receiving dowry and alimony is the woman's right، but law has provided some solutions for the woman in the case of inability to pay each of them. For example، in the case of failure to pay the dowry she has the right to do the particular submission and even she can split the dowry and do not comply the husband until receiving the last installment (as it has been mentioned in the judicial precedent). The supreme court by the judicial precedent number 708 dated 22. 5. 1387 announced that the dowry split do not conflict the right of judicial precedent and consequently sentencing the 718 dating to 13. 2. 1390 expanded the realm of lien to the absolute couple duties. Although these views seem to finish the conflicts، but correctness، effects، and the legal consequences of applying it needs to be analyzed and reviewed. This study which have been done by library and analytical approach analyzes the lien wife in the judicial procedure and beside analyzing the principle number 1058 of the civil law، it has been found that if both the man and woman have applied the lien، what should be done، and also it has been clarified that if a part of the dowry was not paid the woman has the lien until the time that the rest is paid and in the case of insolvency this is not set aside.

The criminogenic corporate culture as a new concept in the domain of empirical criminology studies is rooted in organizational behavior studies. This term refers to a form of organizational culture in which crime is committed as a normal thing. Hence، the cause of crime، in some companies and industrial spheres، is the existence of a crime culture that leads to the normative validation of illegal behavior and the incentive structure for doing these behaviors. By providing the normative guideline، companies offer permission to commit illegal and immoral behaviors under certain conditions to their practitioners and take incentives and safeguards to comply with or violate these norms. Therefore، the culture of crime is defined as an organizational and social truth، which is defined in terms of the ethical values existing in an organization that originates from underlying assumptions. This research seeks to examine the corporate culture by using the Schein organizational culture model، which consists of three layers of Artifacts، values and assumptions. The findings of this study indicate that organizational imagination and distortion of reality in the organization's visible areas are among the reasons that led to the ineffectiveness of the artifact layer in the analysis of the corporate culture of crime. Nevertheless، the underlying values and assumptions of an organization as inseparable parts of Schein's organizational culture can perfectly analyze the organizational culture of crime. Accordingly، in organizations with a mass culture، the expected behavior of the workers will be a crime، because in the core of organizational culture، committing a crime is considered as a value. Nonetheless، fundamental assumptions as unwritten value systems in an organization that identify corporate paradigms create the values? ? of an organization.

Confronting with Cyber-crime has strong relationship with all preventative and non-preventative measures. A Non-preventive measure، that is related to criminal law، consists of criminalization، imposing liability and sentencing. The preventative measures، however، include social and technical measures that impose on the situation or potential criminals. All these measures should obey two fundamental rules: first، it should be compatible with norm of society and bring the security; second، should not in contradiction with individual liberties. Intense concentration of just the security، with pay attention to cyber-crime، will result in infringement of individual liberties and Sole considering the individual liberties، with pay more attention to cyber-criminal، will decrease the security. Neither security-approach nor liberty-approach is compatible with Constitution. This paper، try to reconciliation of these two approaches in the light of Constitution rights in confronting with the cyber-crime.

Mitigation of punishment is one of the effective tools of criminal policy in implementing the individualization principle of punishment، more effectiveness، and attainment of the rehabilitative and corrective goals. In Iranian criminal law، according to Islamic jurisprudence، there is no Mitigation of punishment in the Qisas and Diyat، and these penalties are subject to their own rules. In the scope of Ta'zirat، before adoption of the Islamic Penal Code of 2013، the Mitigation of punishment was not organized in the laws and there was no clear judicial procedure in the criminal courts regarding the manner and the amount of Mitigation. The evolutions and changes made in this law based on corrective goals and social defense are accompanied by a different approach to the Mitigation. On the one hand، the amount of Mitigation is determined on the basis of the punishment rating، mitigating factors are confined، Absolute conversion of incarceration to fine is prohibited، and power of judges in amount of mitigating are limited to a certain extent. On the other hand، the number of mitigating factors has been increased، the scope of the effect of the Mitigation has been developed، and the combination of the provisions of Mitigation and intensification has been organized. However، in spite of the coherent and organized appearance of the provisions of this law، there are some loopholes in this structure، which will manifest itself in practice and may prevent it from achieving its goals. The present study، by demonstrating that the deficiencies of this law will virtually form part of its provisions in conflict with other sectors، will provide suggestions at both legislative and judicial levels to address those objections.

Food Security has defined as a situation which all people; at all times، have physical، economical and social access to safe، notorious and enough food to procure their notorious demands and food preferences to have a healthy and active life. Achieving the food security became a United Nations’ global concern in the new Sustainable Development Goals since 2030 framework. In this article، we explain the concept and legal foundations of the normative food security as a socio-legal norm in the international acts and Iranian regulations and introduce its sights، examples and legal answers (especially criminalization and repressive penal answers) in the Iranian legislative criminal policy in the context of national public policy under the international acts umbrella’ s that meet the food security in the world with planning، targeting and coordinating. The outcome of this research shows that the Iranian legislative criminal policy for food security protection is incoherent and with a tendency to criminal policies public model، just covers a part of food security’ s modern sense and also does not include the new forms of globalized crimes and terrorism against food security.

Minors and juvenile are susceptible to delinquency and their circumstances require a differential criminal policy. Retributive responses deemed to be inefficient and fail to rehabilitate for juvenile delinquency particularly. Criminal justice systems، across the world، try to use a rehabilitative punishment toward minors and juvenile in recent decades. Iranian criminal justice system also has accepted these rehabilitative mechanisms regarding juvenile delinquent. By passing the Islamic Criminal Code (2012) the new extreme developments has emerged. Judges and prosecutors in the practice should accompany with these developments. Findings of this article show that judges and prosecutors are reluctant to use these new mechanisms because of many reasons such as lack of required infrastructures، tendency of judges and public to traditional punishments and so on which is can be subject of another independent research.

The cybercrime possesses a great capacity to metamorphosis. This criminality encompasses a wide range of activities، some of them are totally new، other are old and they find a new field of practice with the system and the computer networks. The classification of these offenses contributes to a better understanding of their nature and their modality. Several criteria make it possible to classify these offenses: the system's role and the computer networks in the offenses making as a means or as a support; the aim and the content of these offenses and the combination of these criteria. In this article، we classify offenses provided by law about cybercrime according to the following criteria: the period of emergence of criminalization and the content of these offenses. In the last part of this article we review the data provided by the Iranian cyber-police (FATA) from statistics concerning cybercrime committed between 2012 and 2016.

Criminal liability of legal entities، including new and emerging issues in the criminal justice system is born. Despite the adoption of these important public interests as told by lawyers، principles، and elements of criminal responsibility for this category of persons has not been analyzed properly. Thus، the criminal law cannot be the same way and measure that determines the basis for criminal liability for individuals، criminal liability for legal entities to measure، and the principles of criminal liability of legal entities of the necessary analysis of criminal law. In this paper، based on the subjects to analyze the most important element of criminal liability for legal entities، the constituent elements of criminal capacity with an emphasis on Islamic Penal Code will be discussed in 1392. Essential component of the criminal investigation capacity can be more correct analysis of criminal liability of legal persons and better understanding of the subject could be offered.

According to Articles 12 (2) and 89 of the Act on Organization and procedure of Administrative Justice Court (1392)، the legislator has identified the uniform judicial precedent as a competence of General Board of AJC، in cases where conflicting of judicial decisions issued by one or more branch of this court. Therefore the question arises: What is meant by inconsistency of judicial decisions and when conflict arises? This paper، by case-study of the precedents of the General Board of AJC، aims to explain the concept and conditions (formal and substantive) of the inconsistency of judicial decisions، as well as the various factors that have led to differing interpretations among the branches of AJC.

Public Law has some unique characteristics which draws a distinction between it and other branches of law. It proposes this question، that whether these characteristics provide a specific way of interpretation for public law. One can answer to this question that although public law does not have specific method of interpretation، it enjoys different interpretational schools in different ways. For example، nowadays، the inefficiency of Originalism in some area of public law is well demonstrated. In constitutional law، the key role of constitution as a most important document in distribution of power، freedoms and rights and its ambiguous and general terms presents some problems for Orginalism، which believes in determination of meaning. In administrative law، regarding the fundamental developments in the modern administration and the hesitation about some premises of it-such as rule of law and separation of power-Originalism faces with a crisis. Therefore، there are some growing trends toward dynamic ways of interpretation. This debate plays a pivotal role in distribution of power between judiciary and administrative institutions.