THE JUDICIARY’S LAW JOURNAL
Year:2012 | Volume:76 | Issue:77|Papers Count:8

In respect of make a distinction between incomplete crime (Attempt, Failed crime and Impossible crime) as well as distinguish of other similar institutions, have not presented a clear and detailed criteria because, if does not provide specific and clear criterion, would be effective in determining the type and level of response against defendant. Accordingly, the most comprehensive measure that can be offered in this regard, the possibility or impossibility of the crime in time to start running, which follows, the first is, when the arrival time of operation (to perform) the crime, it is impossible to be committed if to be for the reason of the inherent inadequacy of action, it is not any instances of incomplete crime and consequently the amount of action, was not entitled criminal reaction because has not been achieved start perform as a condition for incomplete crime in this situation, and if to be cause the impossibility of crime the lack if subject matter, the existence of hindrance or lack of the relative adequacy of act, has occurred impossible crime. While the second is, when the time begging to run, commit of the crime be possible, if despite of possibility, in fact was not any and it be for existence and creation of hindrance it is a Attempt, and if the fault or defect of accused caused it, failed crime has occurred.

The butt of tort law is perfect compensation and for this porpuse there are ideas that one of them is vicarious liability .According to the view of the jurists one of the vicarious liabilities is liability of follower of the act of master .Nowadays in French law not only there is liability of employer of the act of worker in the article 1384 of civil code but also there is another idea for the liability of follower of the act of master that is a general theory that anywhere there is a relation of following the master has liability of the act of follower that in this article has been designed.

An action that one of the litigants proceeds against another litigant during a proceeding is related action. If this action has perfect relation by that action which is in course of proceeding, proper administration of justice and preventing to issuing paradoxical judgments requires to ruling all of them in one proceeding as one case. In these two cases: "annulling the title of defendant in half of portion" and "demanding remuneration for total portion" we can see that Iranian procedural laws cannot suggest any reliable solution for solving the paradox between their final judgments. Therefore, how we can collect these actions at pleading stage, in during the proceeding and in using the way of attack against judgments (reviewing stage) and even if in execution of judgments and finding a solution in Civil Enforcement Law is the main subject of this article.

The basis, the source and the goal of a legal rule may be considered as the three main bodies of each legal system. Undoubtedly, for the formation of the concept of a legal system, a sort of relation and cohesion between the said bodies deems necessary. The source of a legal rule, or instrument of the expression of a legal rule, and also the goal of the rules and the legal institutions, in any legal system, are influenced by the basis and the source of binding force of the rules in the legal system, in question. In other words, any answer as to the source of binding character of a legal rule, either a metaphysical or realistic one, would affect the type of sources of the legal rule and even their functions, whether subjective role of the law or its objective one. The type of interaction and the relation between sources and the horizontal or hierarchical link between them, are both in religious and non-religious legal systems dependent on the nature and concept of basis as well as binding source of legal rules.

Unilateral Independence is considered a new legal institution in international legal system that the roots of its appearance lies in the existence of different minorities in the scope of states and their friction with that states. The present article intends to evaluate the legitimacy of unilateral independence of these groups in order to establish a new state in international law, with respect to existing instruments including the International Court of Justice (ICJ) Advisory Opinion on unilateral declaration of independence of Kozovo. In spite of the ICJ advisory opinion this writing considers the legitimacy of unilateral independence from the perspective of international law as being not absolute and having an exceptional nature, although the domain of this exception comprises a widespread spectrum.

Pondering about how to achieve a due process of law, especially in relation to a maximum protection of judial mistakes victims, continues, as a legislative- executive loophole and challenge in the Iranian legal system, to be felt and necessary. Although Article 171 of the Constitution and Article 11 of Tort Law have provided for compensation of victims of judicial mistakes particularly the innocent accused and convicted persons, there are some difficulties in the materialization of compensation process in Iran.The main reason of which is the lack of transparent and explicit laws on how to implement the constitutional Article in question, despite the fact that the contributors of the new Code of Criminal Procedure, in light of a heed to this legislative challenge, have attempted to surmount the problems, still the implementation of that Articleis faced with problems. This investigation, in light of making reforms or presenting a new and dynamic (judicial–legislative) interpretation of Article 171 of the Constitution as well as inspired by the provisions of the Modification Law on Compulsory Premium of Civil Liability (Tort) of Owners of Ground Motor Vehicles against Third Party (July 7, 2009), the possibility of creating the "premium of civil liability (tort) of judicial authorities", in certain circumstances, has been analyzed as one of the approaches of attaining the maximum support of the victims of judicial mistakes.

By the adoption of the Civil Code of Procedure Act of Public and Revolutionary Courts in 2000, a new institution, namely, stay of appeal was provided for in the provisions of articles 256 and 259 of the Act, without any precedence in the Code of Civil Procedure, 1939 and its subsequent amendments. A comparison of this institution with stay of proceedings points out that their legal status is identical. However, the introduction of this institution may bring about some consequences such as case attrition, inauthenticity of judgments, infliction of damage to appellee.In conclusion, the lawmaker, for amendment, may lay down a certain time limit and upon its elapse shall authorize the appellate court to refuse the appeal lodged when requested by an appellee and/ or to require an appeal bond deposited by the appellant for the acceptance of the request of appellant for surmounting the cause of stay of appeal and/ or to replace the stay of appeal by the issuance of a writ of waiver of appeal.