Journal of Judicial Law Views
Year:2018 | Volume:23 | Issue:82 |Papers Count:10

Within the framework of human rights, one can conceive of the vague concept of inherent dignity on the basis of the concept of "normative subjectivity " and, on the basis of the role of human rights in protecting the personality, one can find a way for understanding of what human rights are there and what is their its implications. In contrast, within the framework of the rights of citizens, based on the importance of the distinct role of citizens in shaping and protecting collective life, citizens can determine the conditions governing social life equally. This position guarantees not only equal rights in order to benefit from the collective goodness provided by political participation, but also include equal duties in order to protect and strengthen them. In this regard, citizenship forms the "right to have rights" in the sense that it empowers the citizens themselves to decide what rights they want and how.

With increasing tendency in international commercial arbitration, the role of arbitration institutes and centers is highly considered in arbitral affairs. These centers consider various applications for themselves within the framework of rules and regulations ranging from “ offering office services” to “ arbitration process management” . With arbitration process management, the arbitration center overcomes problems and obstacles a head of establishing court of arbitration and proceedings and supervises on the arbitrator’ s activities to lead legal proceedings within specified framework of rules and deadlines. Accordingly, the arbitration centers perform a part of the domestic courts’ duties in the ad hoc arbitrations. In arbitration process management, the arbitration center takes decisions with judicial nature. Although the arbitration center is not involved at the process of dealing with differences and disputes, but its decisions in arbitration process management have capacity to be outcome-determinative. Arbitration Centre is abided by its own regulations in arbitration process management, but is bond to follow the mandatory rules of the place of arbitration especially principles of fair trial. In case of non-compliance with the mentioned principles, the possibility of a lawsuit against the arbitration center in the domestic courts and the annulment of the decision of the arbitration center and arbitral awards has been predicted in laws.

Scholars rightly believe that prohibiting the threat to or use of force is the most important achievement of the UN charter. Eventhough Article 51 offers an exception in this regard, the letters and substance of this article are clear about an ‘ armed attack’ as a precondition to trigger the right to self-defense. Beside this legal fact, a Preemptive use of force against an imminent threat is endorsed by Customary International Law as well. However, and mainly after the 9/11, a number of countries have used military forces against their oppositions beyond their borders under the article 51 while labeling those groups as terrorist organizations. Supporting this approach, some scholars have argued that an ''extensive interpretation'' of Article 51 could enable states to legally fight terrorist threats beyond their territories under ''Preventive Self-defense. Having thoroughly examined theories & concepts of interpretation, UN and ICJ Jurisprudence, we have argued that none of those sources supports the `Extensive Interpretation` doctrine under the treaty law or customary international law. Reiterating the necessity to offer a well-defined legal mechanism to prevent terroristic threats, we believe the International law may not yet provide a proper answer to this question through ''codification'', and the answer lies in the ''development'' of international law. To this end, the author proposes a triangle criteria test toward a legal use of force against non-imminent terrorist threats beyond national borders.

The evolution of political offence is recognizable in three era of the political life of Iranian community In the era of constitutionalism Revolution in Iran coincided with the golden age of leniency to political offenders in western law, there was not yet political offence. In the first Period of the second Pahlavi regime and when Europe took the Final step to withdraw granted leniency to political offenders, in a reverse movement in Iran, the first step for the recognition of political offence was taken. The second Period of Mohammad Reza Pahlavi, coincides the era which European legal systems are going to take a transition to the final stage of evolution in the concept of political offence which distinguishing between political and non-political offences, while the political offence in Iran in that era was more significant than any other Period. And Finally, after the victory of Islamic Revolution, efforts were made to Provide political offence regulations in Iran's current criminal law – which leads to ratification of Political Offence Act 1395-and this is while western law has essentially passed the distinction between political offence and general offence.

Normally, when the right to compensation is spoken, the victim's compensation is taken into account, as the Iranian legislator has done so in articles 14 and 15 of the Criminal Procedure Code. But the current article refers, not the victim, but the accused right to compensation. The Criminal Procedure Code of 1912 and 1999 referred to the possibility of compensating the accused by the private complainant, who was found to be iniquitous. However, none of the two codes referred to the government's obligation to compensate for the innocent accused. The criminal procedure Code of 2014 stipulates the government's obligation to compensate the defendant for damages, but does not rule out the possibility of compensation by the plaintiff, who was found to be iniquitous. Certainly, the failure to affirm the liability of an iniquitous complainant does not exempt him of the liability to compensation and he will be liable according to general rules of civil liability. Reaffirming the responsibility of the government to offset the losses of innocent accused is one of the highlights of the new code, which is according to international conventions. But the lack of provision for compensation for unjustified detention is one of the gaps in the new law. The current paper is a practical and fundamental research which emphasizes on clarifying the different dimensions of the compensation by using the analytical method.

Assignment of arbitration clause or arbitration agreement is very important in internal and international arbitration and it has accepted in the law of other countries for example the U. K. and the U. S. In this regard there are some proponents and opponents each one has him/her own arguments. Article 481 of civil procedure code provides that the death of one of the parties to the agreement leads to termination of arbitration Thus if arbitration concludes under separate binding contract or in under the terms of article 10 of civil code, that arbitration will be terminate by death of one of the parties. It means that legal assignment of the contract, doesn`t cause assignment of arbitration clause. This article, concludes that arbitration clause can be personal.

Alternatives to prosecution are the third way and middle method between the prosecution and unconditional archiving the case. Objects of punishment, in this method, Will be achieved without prosecution and punishment. Alternatives to prosecution are based on the cognitive school, criminology and practical considerations and In Islamic teachings, there are many cases applying this method in the process of prosecution and punishment of offenders. In English law, Alternatives to prosecution have more appearance, because the prosecution is based on public interest. Because of studies, in the adoption of the Penal Code of 1392, the Iranian legislator considered the effects of these alternatives. However, these alternatives, as they should, have not been developed. Lack of development in these alternatives is the result of numerous obstacles. Reviewing the U. K. law, understanding these obstacles and providing necessary solutions for them, justifies the necessity and purpose of the present research and could create a promotion in the criminal prosecution system using these alternatives. These obstacles can be expressed in the theoretical challenges (lack of ideas and replacing alternatives) and practical challenges (lack of practical mechanisms for the implementation of alternatives). Examples of such challenges include: not paying attention to the objects of punishment, Tendency to punishment, Police Restriction, lack of attention to the personality of individuals at the beginning of the prosecution of crimes and. . .

In accordance Article 614 of the Civil Code, the Trustee is not liable except in the event of an infringement or a failure. In French law, you are also absolved of liability and surety if you have no failure to pay the deposit. However, the main issue is the basis of responsibility and the condition of increasing or decreasing it. Is the basis of liability for the trustee of the law or of the contract and can it be reduced or rejected or increased during the deposit. The results of this research are that the responsibility for the Iranian law is unconstitutional (non-contractual) and in French law is contractual. Also, in Iranian law, the condition of increasing or decreasing this liability is not inconsistent with the permissibility of the deposit agreement. The condition of increase is not contrary to the nature of the deposit agreement and is only contrary to the consensus, and the condition of reduction or disclaimer is valid even in the event of an Infringement or a failure. In French law, the condition of increasing or decreasing this liability is valid in the loan agreement.

The bank participation contracts whereof the bank and customer would participate to invest and share the benefits are among the most important bank contracts. In spite of the tit-for-tat transactions, in participation contracts the rate of bank charges is not determined by Central Bank and only the minimum expectable bank charges’ rate would be approved and announced annually, therefore the banks would prefer to utilize the frame of participation contract for providing facilities in order to maximize their benefit via more rate of bank charges. Notwithstanding the accuracy of these utilization by bank system, unfortunately in case of nonpayment of installments of the facilities that have already been given to the customers, the banks would take action to furnish the debited customer with the new facilities whose bank share includes accumulation of the primary facility, bank charges and the damages for delays of nonpayment of installments of that primary facility, instead of extension of repayment period of debited customer and then immediately the banks would settle primary facilities with this new facility mechanism. Different interpretations have been raised regarding accuracy of this type of participation contract in court hearings, and we will conclude ultimately, with due consideration of judicial approaches and court’ s decisions, that the interpretation would be more acceptable which provides for non-accuracy of such contract due to non-formation and believes that banks should be entitled for receipt of its outstanding as per primary facility.

The defense against plaintiff can be done in two deferent ways: denial of claim and challenging it (substantive defense) and objection to violation of procedural laws (formal or procedural defence). Each of these methods has its own nature and consequences. The subject of this paper is determination the scope of procedural defense and finding a criterion recognizing it from substantive defense. Taking it to consideration that the base of procedural defense is violation of formal rules, the criterion of recognition must be followed in the merit of these rules. Thus, the deference between procedural and substantive defense refers to the issue that whenever judge based on defense can express his opinion about substance we are facing with a substantive defense. But if the defense does not enable the judge to recognize the beneficial party, it will be a procedural defense. Lack of attention to this criterion has obscured recognition of defense methods in the legal provision, judicial procedure and doctrine.