THE JUDICIARY’S LAW JOURNAL
Year:2016 | Volume:80 | Issue:94|Papers Count:11

This article first reviews the importance and the positive impact of the internet in our environment, and refers to the threats to users’ personal data, especially those very difficult to delete. The article then examines the possibility of removing personal data from the internet known as the right to be forgotten, and studies the European standards as to data protection and the right to informational self determination. The article finally analyses the theoretical as well as practical challenges between the right to be forgotten and freedom of expression, and, as a conclusion, provides certain suggestions in order to resolve the conflict between the two.

Terrorism is a phenomenon that has been challenging the security of many countries throughout the history, particularly in the last decade, and inflicted irreversible losses. One of the most important plans of all countries, particularly those that are victims of the terrorism, is to punish the terrorists. According to statute of the International Criminal Court (ICC), the task of investigating this crime lies outside of the jurisdiction of ICC, and rests upon the governments. Countries that are victims of terrorism, such as Iran, use their criminal jurisdiction in an attempt to punish the perpetrators of the terrorist events. By accepting the principle of individual jurisdiction, Iran has taken important steps towards fighting against this heinous crime. The method that Iran has adopted for handling this crime is totally different from those adopted for the other crimes. This method is among the internal laws such as Iranian aviation and maritime laws.

The Principle of Equality of Arms means that each party in an action shall present her claim in an environment so that this does not put him in a worse condition compared to the other party of the trial. This principle has been internationally and locally embraced by authorities. From the perspective of international documents, the acceptance of this principle is partly influenced by the acceptance of global principle of fair trials which has been shaped by a shift toward the criminal justice system, especially in preliminary investigation phase. This requires that at the first encounter of the accused, the victim and etc. with the criminal justice system that is formed on the basis of a criminal case, i.e. police preliminary investigation phase, facilities of the aforementioned persons shall be specified and basic rules are predicted in law in order to comply with them. Fortunately, Iranian Criminal Law which was approved in 2013 has generally considered acceptance of the Principle of Equality of Arms inspired by international documents as one of the strategic principles of Criminal Law and apparently has predicted some of the basic rules of the Principle of Equality of Arms at the Judicial Police Investigation phase and it has established some of the regulations based on the alignment of each party in a claim. However, these innovations are confronted with limitations in some criminal cases and have inevitably tarnished the total equality of the parties including the relative balance of the accused, the prosecuting attorney and the victim at the police investigation phase.

Today, the economy and economic prosperity is one of the most important and vital elements of the development and the power for any country. Therefore, one of the most important concerns of the politicians at the moment is effort to develop the economic activities. In effect, the economic development leads to State authority on the one hand and to the general satisfaction of people on other hand. Naturally, the realization of this purpose requires an efficient policy in economic area among which could be mentioned the providing the necessary conditions for investment as a most important and a most serious policy. The governments have many tools to support investment and privatization. Adjusting the criminal arsenal's tools to deal with any economic crime and anomaly is one of the best policies that will run by decriminalization.

Normative constitution is the highest law system and the consistency of this system requires, following the rules below from the Superior rules. From this view, preservation of the Constitution as the fundamental law governing the legal system of each country needs to legal ways of controlling instruments. This process is followed from two distinct complementary routes of constitutionalization of administrative law and administrization of constitution law by administrative courts and the administrative proceedings in government regulations.Administrative Justice Court (AJC), as the Supreme Court Established under Article 173 of the Constitution, is the court to monitor the actions and decisions of government officials, to adjudication the rights of people, and has the possibility of annulling unlawful decisions and outside of the scope of competence of public administration; in the absence of the Constitutional Court in Iran doing the duty of judicial constitution and judicial protection of the constitution, in practice, has played significant role for monitoring and safeguarding the constitution, especially in the field of public administration that is widest part of the state. In this article, we want to analyze the changing mechanisms of court in the process of constitutionalization of administrative law as a means to monitor the control constitutional of government regulations and most exaltation of processes protection of constitution. According to this, we will consider tools such as revocation of unconstitutional law regulations, supporting to principles of Constitution, interpretation of them and judicial procedure. Also are evaluated tools and Consequences of the process administrization of the constitutional law in procedure of administration Justice Court.

Prevention of crime has always been one of the main concerns of the legal system and in order to achieve this goal, different theories have been proposed. One divides crime prevention to two types of social crime prevention and developmental crime prevention, both aim at personality and social structural reforms. According to the Article 156 of the Constitution of the Islamic Republic of Iran, the prevention of crime is one of the tasks of the Judiciary. However, by virtue of the tasks foreseen for the Executive branch, this branch has many functions related to crime prevention. Therefore, the Executive functions to improve living standards and social welfare of the nation. The role of Executive branch in crime prevention can be clearly seen in Article 3 of the Constitution of the Islamic Republic of Iran which states that providing education is one of the responsibilities of this branch.

Economic growth and development of any country is indebted to the efficient financing system that helps investors to transfer funds to the economic enterprises and projects as well. Financing system is formed in money markets and capital markets and it needs suitable financial intermediates to approach considered goals. Financing companies are some of the new financial intermediates in the Iran capital markets, that the governing legal system of it is not determined. In this article, while understanding the structure of the finance companies, we analyze the governing regulations and related challenges. At the end, we suggest the suitable structure that is compatible with the economic policies, in accordance with the development of these types of financial institutions in some other countries.

Support of the individual rights and freedom is one of the purposes of criminal procedural rules. Police detention or surveillance is contrary to the individual rights. In accordance with obvious rules, police at both American and Iranian systems of justice might arrest someone. This matter has an exceptional aspect. It is essential to observe two provisions in which include “visible crime” and “the principle of necessity”. A warrant is issued by judicial authorities to arrest someone is a requirement under American rules and it is possible to arrest someone at visible crime. Legislator of both legal systems has been considering rights like having promptly access to a lawyer since this proceeding to the presumption of innocence. Nevertheless, the accused has a right to be silent until a lawyer comes under American system of justice. On the other hand, fair and just interrogation such as realization of the accusation and its evidences to secure accused’ rights is predicted by both legal systems. In line with American rules, the realization of the arrest and predicting electronic devices to record accused’ statements is considered. Moreover, appropriate sanctions like exclusionary rule beside other sanctions at this legal system is predicted. Anyway, considering the regularity of the arrest and detention at this stage, both legal systems have put their efforts into reinforcing the accused’ rights.

"Khunsolh" or "Khunbas" is an unofficial procedure to solve criminal matters that is common in Kurd people of Kermansha. This customary and non-criminal procedure is used to solve disputes resulting from murder. In this paper, we have done a filed study about the acceptability of murderer in society after the Khunsolh from the viewpoints of three groups: murderer's family, victim's family and elderly people of the concerned society. Findings show that Khunsolh has been successful in resolving the conflicts and restoring peace to harmed society. The murderer comes back to society and is accepted as an ordinary member of that society. So we can say that Khunsolh has a restorative function.

The principle of tort law is that the liability is based on the act prejudicial that in Iranian law in conformity with the article 1 of Tort Law Code and in French law in conformity with the article 1382 of Civil Code, this act must be guilty. The harmful act in determining responsible in tort law is necessary. If the chain of causes of action for compensation for damaging responsible is a person who has committed a fault. In addition to the traditional basis of the theory of fault, there are other foundations, such as the theory of complex, theory of garanty or theory of obligation of security. However, all these comments have one thing in common that harmful act is necessary for liability. The origin of these new approaches is sometimes conventions and customs in some countries. However, these comments can be found in the literature of law of obligations in France law. Nowadays, as well as this rule, there are some other theories that relate to the scope of the necessity of act in determining the responsible person to remedy the damages. These theories are mainly originated from French law that will be studied comparatively in this article.