THE JUDICIARY’S LAW JOURNAL
Year:2023 | Volume:87 | Issue:124|Papers Count:14

Losing expected benefit means benefits, which have not been existed yet, but have the potential to come into existence. Considering this kind of loss as a compensable damages has always been a controversial issue. The incertitude is mostly because the loss itself and its measures cannot be evaluated for certain. Therefore, determining reasonable evaluation method might make compensating this damage much easier. In this article, a general study is conducted on this subject and we have tried to focus on the methods of evaluating this kind of damage, considering the judicial procedure as well as the experience of other legal systems. It is thus proposed, in case the tortfeasor’s act has ceased the previous status/benefit of the injured person, the injured person’s previous status must be considered as the basis of compensation. Otherwise, when the tortfeasor’s act has deprived the injured person from gaining an expected (new) benefit, the status of his peers are held as the basis of compensation. Moreover, the extremity of the assessment of the loss of profit is usually until when the injured person is put back into his previous status. Otherwise, custom and law are the two elements, which are used in order to determine this extremity.

By studying the existing works regarding the right of lien, it can be concluded that this right exists as an "absolute negative right" for the parties in the contracts, by which the parties can refuse to fulfill their obligations immediately after the conclusion of the contract. . make their obligations subject to fulfilling the obligations of the other party. In this theory, this right exists absolutely and unconditionally for each of the parties. This theory is stated in Article 377 of the Civil Code. In the research process, we come to the conclusion that this reading of the mentioned right is not without problems and it should be considered against some legal and jurisprudential principles and in some cases it leads to "intentional violation". In addition, the theory of "suspension" with the use of "objection and defense" can be presented as an alternative theory. According to this theory, not only is the lien not absolute and negative, but it is not multiplied by the number of parties.

Legal policy-making that borrows problem-based and interdisciplinary approaches from public policy aims to solve problems in the legal system. Dispersed judicial decisions in courts are a problem in the Islamic Republic of Iran’s legal system that has not been considered in a problem-based manner, and no attempts have been made to solve it effectively. There are various causes for dispersed judicial decisions, but ambiguous rules are the most important. This paper provides two suggestions to prevent ratifying vague rules that drive dispersed judicial decisions by applying a descriptive and analytical method using library resources. The first suggestion is to use explanatory notes within the Iranian legal system to enhance the understanding of legislator purposes and goals for making a particular law as a substitute for the unpublished detailed negotiations held by parliament representatives. The second suggestion, inspired by economic and policy labs, is to establish a “Judicial laboratory” for analyzing the judges’ inference from the draft of the law in a quasi-real environment, before ratification, to reduce the gap between lawmaking and implementation.

Given the expansion of the role of the state in society and the consequent increase in relations and disputes between the governed and the government, leaving the resolution of all these disputes to the judiciary is neither possible nor desirable. Accordingly, the design of internal organizational mechanisms to expedite the resolution of administrative disputes under the title of "Administrative pre-trial" as one of the alternative methods of resolving these disputes, has been considered by policy makers of various legal systems; However, the idea is still controversial in some countries. Given the practical experiences of the French and British legal systems, the present article seeks to answer the question by a descriptive-analytical method to what extent the prediction of the preschool institution is compatible with the requirements of the Iranian administrative law system? Separating the Administrative pre-trial body from the quasi-judicial and judicial oversight bodies, it seems that the interpretation of the will of the founding power on the one hand and the provisions of important laws such as the law of permanent provisions of the country's development plans and the law of the Sixth Development Plan and Existence The existing Administrative pre-litigation mechanisms in some executive bodies all confirm that not only is pre-litigation legally possible, but also its recognition in order to reduce the volume of cases before the Administrative Court of Justice, at least in the case of some important and recurring cases. its necessary.

Unlike other legal units in Iran's judicial system, there is no single criminal policy regarding the general aspect of intentional homicide .The confusion resulting from the legislative criminal policy and its dual approaches have challenged the judicial procedure. The victim's right to determine the punishment in intentional homicide and the predominance ofits private aspect has pushed its public aspect to the sidelines in such a way that in theprosecution and investigation decisions in the prosecutor's office and the criminal court one،often focuses on the private aspect of intentional homicide and demanding retribution has beennoted. And in cases where an action or punishment is determined in terms of the general aspect, in the way of criminal investigation, settlement, issuing judgment and the principles governing them, there are problems in terms of observing the principles of fair proceedings, the defense rights of the accused and the rights of the society.The current research has attempted to enumerate the challenges in the judicial procedure by using analytical-descriptive and collecting the desired information in the library method and relying on the cases of intentional homicide in the criminal justice system of Iran . And while emphasizing the necessity of concrete criminal policy in order to Key protect the rights of the society, it is to explain the duality of the deterministic system and its role in the formation of the existing judicial procedure through the expression of its effects and solutions to overcome the existing situation. Until the adoption of an integrated legal policy with an approach based on fair proceedings .

The prank call crime refers to a new crime with a certain nature that using telephones and other telecommunication devices plays role in its formation. In some cases, the perpetrators commit other criminal acts besides prank call, like insult and threat, and in some other cases, these devices are employed just to commit the above-mentioned crimes. There are differences of opinion in distinguishing the application of the rules of multiplicity, whether material or spiritual, or not applying these rules in case of committing this crime simultaneously with other crimes like insult or threat, so that some in judicial procedure and legal doctrine consider it as “special criminal title” and with the certain criminal title of “prank call”. Others consider spiritual and group multiplicity as material multiplicity. In this condition, besides the above-mentioned cases, there is the idea of ​​multiplicity of results; while reviewing the current arguments in judicial procedure and legal doctrine, as well as analyzing the elements of the prank call crime, insult, or threat, the authors agree to accept another approach, i.e. a combination of spiritual multiplicity (multiplicity of titles) and material multiplicity, discussed in detail in the text of the paper.

This article investigates the feasibility of applying the rule of price at the time of execution of judgment in the method of cash compensation for damages within the Iranian legal system. In the current economic situation, where inflation significantly affects prices and the devaluation of the national currency results in greater damage to the victims, the issue of updating compensations based on the price at the time of payment becomes highly significant. Utilizing a descriptive-analytical approach, the authors have provided legal and jurisprudential arguments for the acceptance and application of the criterion of "price at the time of judgment execution". They have demonstrated that existing laws in Iran have the capacity for such compensation for damages. The present research, while analyzing the challenges and conflicts between different laws, examines legal solutions to address these issues and proposes an optimal procedure for compensating damages based on the true value at the time of payment. The findings suggest that courts can compensate for the damages resulting from payment delays with updated values, in line with the principles of full compensation and the rule of no harm, allowing the injured party to be restored to a similar position at the time of actual payment.

In law of iran, it is impermissible to refer a bankruptcy litigation to arbitration.(article 496 of civil procedure code) in some countries this prohibition has been created by recognizing the exclusive jurisdiction of special bankruptcy courts. But, there isn’t be an specific legal provisions regarding the arbitrability of bankruptcy related lawsuits that may be litigated during liquidation. In order to answer the question of whether such claims are arbitrable or not, the origin and reason of the non-arbitrability of the bankruptcy claim must be known. In this case, various reason such as conflict with public order or protection of creditors’ rights have been mentioned it seems that the main root of this prohibition is in the inherent limitation of arbitration. Arbitration doesn’t have possibility to solve bankruptcy cases effectively. This article by descriptive analytical method concludes that should be distinguished. So if the claims of during liquidation period were derived from the binding rights and duties in the bankruptcy laws and to enforce the bankruptcy order and correct explanation of creditors’ rights to comply of bankruptcy claim, it can’t be referred to arbitration. But other lawsuits, which orginate from other laws other than bankruptcy are arbitrable.Arbitrability, Bankruptcy Liquidation, Law Suit, Eligibility, Dispute Resolution

In the last part of Article 244 of the Civil Code, the legislator stipulates: "... the condition of corollary cannot be revocable" therefore, in order to explain the aforementioned ruling the majority of law scholars have stated that in cases where the condition of corollary is formed by the creation itself, in terms of the fulfillment of the condition, the possibility of its revocation is unthinkable, and in the event that the fulfillment of the mentioned condition is impossible for some reason, basically no condition has been formed to talk about its revocation, however, this research has not been accepted by jurists. Jurisprudential studies also indicate that according to great jurists, it is not possible to revoke the condition of corollary. Therefore, this research with a descriptive-analytical method, while examining the theories of law scholars and great jurists, including arguing the legal mechanisms of suspension and timing, viewing the registration of the said condition, considers the last part of Article 244 of the aforementioned law indicating the irrevocability of the condition of corollary in most cases and by presenting new analyses infers the possibility of revocability of the said condition in a series of cases.

The right of lien in Iranian law has been explained by jurists, considering Article 377 of the Civil Code. This article is included in the submission of the contract of sale and the jurists mainly deal with this article only in the topic of the right of lien. However, attention to other regulations, jurisprudential analysis, and comparison with foreign laws demonstrate two types of liens can be identified in Iranian law: 1) equitable lien (in cases where there is a balance between the parties), 2) possessory lien (the legal right for a creditor to preserve the property of the debtor). This is while the review of the equitable lien in the works of legal writers did not leave room for an independent review of the lien of possession, even though this type of right of lien has been present in Iranian law since 1/6/1312 (1933) with the approval of the law on the debt of immigrants to guest houses and boarding houses. This article, through the descriptive-analytical method (library study), seeks to identify possessory lien as an independent institution in Iranian law with a comparative study.For this purpose, a comprehensive definition of the right of lien is provided in the present research: "The right of Lien is the legal right for a person that is settled in the property of others until the fulfillment of their debt and obligation." This definition, in addition to including various types of the right of lien by passing the traditional point of view, also opens the way for the use of other types of right of lien, including maritime lien, which is itself one of the type of the right of lien in possession, in Iranian law.

Prison is a setting where convicts still act logically in a setting full of power relations; hence, it cannot be said that prisoners commit the violence for enjoy the violence. Prison violence adheres to logic's rules perfectly. But how can violence be described within the framework of logical and rational behavior? The culture of prisons may contain the resolution to this query. The boundary between rational and irrational conduct is drawn by prison culture. The main questions of the article are, what’s the role of culture in regulating violence in prisons and how does culture influence escalation of violence? These are the questions the current article seeks to answer to them. To answer the questions of the article, qualitative methods and specifically in-depth interviews with 15 prisoners of three prisons in one of the northern provinces of the country (Iran) have been used. The findings of the research show that the cultural assumptions reproduced in the prison culture, as a whole, lead to the formation of the mentality of seeking immunity through resorting to violence. Prisoners develop the cultural understanding that they have to resort to violence in order not to be victimized inside the prison. Prisoners who are known as hard (tough) prisoners are considered to be prisoners who show the strongest reaction to the slightest disrespect, and if they are assaulted, they not only resist well, but also they will definitely take revenge for the assault. The mentioned prisoners, see every dispute as a vital battle to determine the winner, and from their view point, the outcome of this battle has a great impact on whether or not they will be injured in the future. Also, in any quarrel, the hard prisoner considers resorting to violence as the first option to resolve the conflict

Criminal law and criminalization is the arena of confrontation between government authority and the rights and freedoms of citizens; various theories, assuming the legitimacy of the government's authority, as an accepted institution for establishing, implementing and dealing with the implementation of the law, defining the crime, determining the punishment and applying it, as well as the implementation of the criminal justice system, have been examined by the thinkers of this field in explaining and justifying criminalization and punishment. Paying attention to the emergence of problems that this attitude creates on the issue of criminalization and sentencing, as well as examining philosophical and criminological reflections outside the circle of accepting the existence of the state, considering the basic rights of citizens, it is necessary that with a view based on aversion to authority, with an anarchist approach and based on the negation of the concept of the state. In this way, in addition to what we find out, from this point of view, criminalization will not be possible, but it is necessary to take help from the school of restorative justice, which seems to lead nowhere in the space of government authority, but in the space of escaping from authority, it can open the way and be effective.

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The general belief is that judges obey the law in sentencing and are not influenced by factors beyond the text of law such as race, gender, religion, youth, marital status, social class, etc., but some empirical studies prove that in some cases, judges determine punishments affected by these extra-legal variables. The current research was written focusing on the gender variable in the drug cases and in the field of sociology of criminal law. In order to answer the research questions by adopting the qualitative research method in the jurisdiction of Kashan city, twenty three cases were studied and had in-depth interviews with nine judges and lawyers in this area. The findings indicate that judges, whether they want to or not, take into account the sex of the criminal in dealing with the drug crimes to apply the institutions of reduction and reduce the punishment for women, which according to the interviewees, could be the physical and mental differences between men and women, placing women in inappropriate situations, the difference in expectations between men and women, as well as the lack of need for strict action to correct female criminals.