THE JUDICIARY’S LAW JOURNAL
Year:2019 | Volume:83 | Issue:106 |Papers Count:24

The major challenge in front of Iran’ s legal system is the problems derived from multi-legislation of acts. It routes from the very beginning of the legislation age in Iran since 1906 until now which has resulted in a large number if laws and regulations laid by different powers of government. Nowadays the management of this massive volume of laws and regulations is a serious problem that needs consideration. Different attempts have been made since 1960s to manage the legislative inflation in Iran. Even two laws are enacted in 1971 and 2010 in this respect, but good to mention that most of these efforts are regarded to the depuration of laws and regulations not codification of them. Thus it’ s necessary to recognize and remove repealed laws and regulations and to edit them, all as a part of the codification in its formal sense that is fulfilled in some countries such as United States, France and Argentina. The main purpose of the codification is to consolidate all existing laws and regulations regarding a specific subject in a single text with a unified and comprehensive structure and as well to locate all articles and sub-articles in the suitable proper place in this structure. In this sense, formal codification goes higher than mere revision. The research method taken is both descriptive and analytic.

From one perspective, crimes are classified into two types of forgivable and unforgivable crimes. Forgivable crimes are those that deserve special private attention in addition to the public aspect. In this category of crimes the legislator has a significant role in the plaintiff's will so that the initiation, pursuance, prosecution and enforcement of the sentence totally depends on the plaintiff's complaint and the failure to achieve his/her forgiveness. The present study deals with the assumptions regarding the plaintiff's pardon announcement, that prior to the expiration of the pledge, agreements are reached between the plaintiff and the defendant. This research will ultimately answer the question that: “ what is the legal nature of the forgiveness and can previous agreements be constrained? ” The author believes and concludes that forgiveness is inherently a kind of will, and although the agreements reached can make it a condition, it has virtually no effect on the judicial process.

The conflict resolution rules pertaining the determination of applicable law in the field of intellectual property law including copyright law, are seriously challenged by the advent of Internet. This is because the usage of Internet has increased and the possibility of the infringement of creator’ s rights and misusing copyrighted works is facilitated. The specific nature of intellectual property and the domination of the principle of territoriality as well as the diversity of these rights besides the lack of internationally accepted conflict resolution rules specific to intellectual property law, has led to numerous Judicial problems among the countries worldwide. Hence, in order to achieve the most effective rules of conflict resolutions in this field and particularly those regarding to problems caused by Internet, existing laws and regulations were studied using documentary method. The findings of this research indicate that the “ Closest connection rule” which is raised and supported by modern academic approaches such as the system designed by American Law Institute can be useful and effective in confronting the challenges and limitations of intellectual property law both in theoretical and practical aspects.

On the one hand, existence of any ambiguity in explaining the status of Although the laws for development plan hold a critical role in Iran’ s Legal and political system, any ambiguity in explaining the status of these laws will bring to mind that other acts of parliament have a position below these laws. This assumption is strengthened when the plan laws are recognized as supreme laws in some procedures. In this situation, the legal issue that arises is that no Privileged status under the constitution is recognized. Meanwhile the hierarchy of laws in Iranian legal system, has faced fundamental changes. While are laws laid by the parliament are in an equal position, some enjoy a special dominant position higher than others. This shows that it’ s indeed necessary for the legislators to know that these laws shall not deny the role of each power (Executive, Judiciary and Legislative) in the whole system. Therefore it’ s a true need to determine the limitation affront of the parliament in making these laws so that they maintain level to other acts. This will guarantee that the important duties of government institutions will not be affected by these laws and those duties that are explicitly stated in the constitution, will not run out of priorities.

According to reports from international institutions such as Human Rights Watch, Myanmar Muslims, and in particular the ethnic and religious minority of Rohingya Muslims, have been suffering from discriminatory policies and the criminal acts of the Myanmar government and its Buddhist residents since decades. Meanwhile, the recent human tragedy and the terrible crimes committed against Rohingya Muslims, all supported by the government of Myanmar and the military regime of the country, have harmed international community more than ever. Given the correspondence of these crimes with actus reus and mens rea of the crime of genocide and crimes against humanity, prosecution of those perpetrators at both national and international levels is debatable. At the national level, the Myanmar Courts, based on two principles of territorial jurisdiction and nationality jurisdiction and third countries courts based on the universality principle (Subject to the identification of such a principle in their internal laws) may interfere. More importantly, the mechanisms available at the international level include the referral of the status to the International Criminal Court or the formation of a Particular International Criminal Court by the United Nations Security Council. In addition, there is also an intermediary mechanism, which is a hybrid or internationalized court that can be formed on the basis of an agreement between the Government of Myanmar and the Security Council. In this paper, the pros and cons of each of these courts is reviewed in order to handle the recent crimes committed in Myanmar.

Combating crime, depriving the offenders of proceeds and incomes, Close cooperation between countries is truly needed to fight against crimes, depriving the offenders of crimes benefits and proceeds, obliging compensation for damages and restoring criminal assets to the legitimate owner. Meanwhile, there are numerous political, economic, social, legal and even technical obstacles that prevent criminals from achieving these goals. But the importance of cooperation between countries and the need to confront offenders next to international obligations of countries, all require true and utmost cooperation. In this regard, countries, with due regard to the necessity of the matter and in accordance with the recommendations of international instruments, in order to motivate active participation of States and organizations in the process of prosecution and cooperation for the seizure and extradition of property derived from crime, by ratification of Internal laws, the establishment of bilateral and case agreements, and practical procedures created new rules, named fair sharing of property and proceeds from crime. To each of them, in proportion to their participation in the operation, they split a percentage of the confiscated property, which has been effective in practice as a new strategy for cooperation between countries, and so far billions of dollars in cash and property and proceeds which are driven from the crime, had been taken from the criminals and were returned to the legitimate owners or shared between the parties who have collaborated, which has also been very effective in reducing the cases, in particular the prevention of corruption of the governors.

Violence against women is a widespread phenomenon in all societies and in all ages. Above different sorts of physical, mental, sexual and economic violence against women, the crucial issues which demand women's support are the dangerous number of violence, the necessity of family member's support and the violated women's treatment in order to prevent its repetition. Nowadays, regardless to the need of social-based intervention, various attempts have been made to protect women at the risk of domestic violence or violated ones, by both governmental and none-governmental organizations. The new idea of "safe houses" is an instance of this type of protection. The fundamental role of these houses in protecting harmful women-by presenting long and short terms of support-has not yet been focused and studied by the scholars. Hence, the authors of this paper have firstly discussed the background of such safe houses in countries such as Canada, USA, etc. and their features. In the second step, different responsible authorities in the governmental and non-governmental safe houses in the city of Tehran have been interviewed and their safety instructions are analyzed. The third step is to consider the supportive characteristics of these houses and their challenges such as the lack of physical space and the professional staff, low budget, etc. Results of this article emphasize the importance of safe houses in Iran, the necessity of enhancing them by the means of inclusive education, public awareness and all parts of the society's supports to present qualified programs in legal, psychological, medical, etc. aspects.

It’ s clearly apparent that while severe penalties, including lengthy imprisonment and execution are legislated in penal codes, But still the case-law in this regard suggests that such sentences are not issued at the initial stage or, if the Revolutionary Courts decide to issue such sentences, these sentences are not usually approved and enforced, and are enforceable for only limited cases. In this paper samples of convictions in this regard are analyzed by the authors in order to illustrate the inconsistency of the criminal policy and criminal judicial policy in the area of drug crimes. This will result in weakening the detention effect of the law and helping these crimes to spread.

New fertility methods such as intrauterine fertility or injection of spermatozoa into the cytoplasm of ovule has caused lawyers and jurists to study about different legal dimensions of the status of children whom are born by this method. The nationality of these children requires legal analysis. For recognizing this vital fact one should first recognize the patrilineal of the child resulted from such methods, because the Iranian legislator accounts grants the key role for holding Iranian citizenship to the patrilineal criterion.

In the dignity-oriented model of proceedings, the accused or suspected person enjoys some fundamental rights which cannot be taken away from him/her merely by him/her being arrested, accused or apprehended. One of these rights is the right to wear personal, self-willing clothing; thus no entity or agency is authorized to deprive him/her of this right and coerce him/her to put on “ criminal garb” . This is due to the fact that until is proven otherwise, the accused is assumed innocent and his/her outfit shall represent this meaning. It means, the accused shall be treated under the support of the innocence presumption not the presumption of criminality; hence, the outfit of the accused plays a significant role in matters like his/her quality of defense, the judicial decision and the public judgment. Despite, in the proceedings of the current Iranian criminal justice system, the accused is forced to wear criminal clothes— leading them and their relatives into being subject to negative labelling and misjudgment. Answering the question “ what is the legal base of the current practice” , the present study identifies that not only the current practice is not in harmony with the national and international standards, it’ s also in conflict with the strategic principles of the criminal procedures, particularly human dignity, the presumption of innocence, procedural legality, equality of arms, impartiality and the protection of citizenship rights. In this regard, it is a particular desideratum that the present practice gets more aligned with the universal standards and the strategic principles.

In This article one can notice various kinds of conflict in implementation of punishments in jurisprudential (Fiqhi) approach and from Iranian penal code’ s point of view. Since the crimes and punishments have not been classified based on the seriousness and weakness of crimes, it’ s rather complicated to find the ways of conflict resolution in case of conflicts in implementation of punishment. The article emphasizes that one decisive criterion for conflict resolution in implementation of punishments in Islamic jurisprudence is the priority of those relating to God’ s rights over those containing people’ s rights. The article has shed light on the nature of God’ s rights (Hagh Allah) punishments and people rights (Hagh al-Nas) punishments and the examples of each category. It explains evidences in favor of priority of people rights over God’ s rights and criticizes the position taken by Iranian penal code over the issue. At the end, the article suggests proposals to improve the inappropriate articles and regulations in Iranian criminal law.

According to Principle 139 of the Constitution and Article number 457 of Iran's Civil Rule of Procedure and Evidence, The referral of claims regarding public and governmental properties to arbitration, is subject to the ratification of the cabinet and under the notice of the Islamic parliament. It’ s one of the most controversial principles of the Constitution that has always been under the focus of dissension between judicial procedure and legal doctrine in various issues; but less has been put on the exact timing of approval by the cabinet or parliament. One way to overcome these challenges is to know when to take the permission for referral of the claim to arbitration, regarding properties mentioned in the Principle 139? This article seeks to outline the concepts of private law, including permitting and non-infiltration, invalidation, non-interference, ritual and explaining their fundamental relationship with principle 139 of the Constitution and the concepts of public law governing the need for authorization Arbitration Contracts and, at the stage of reviewing the arbitration or appeal of the arbitrator and even the order of execution of the arbitrator, determine the appropriate time to refer the public and state property claims to arbitration. This article tried, in a descriptive-analytical method, to justify that the time of taking permission for referral of the claims to arbitration, stated in Principle 139, is from the first appearance of the dispute to the final phase of arbitration process and the execution of the award, not the time of the formation of the contract.