NAMEH-YE-MOFID
Year:2008 | Volume:13 | Issue:2 (64 LAW)|Papers Count:10

The importation into or transplantation of elements of the modern world onto the Iranian society has left an impact on all aspects of individual and social life in the country. To analyze and tackle those problems in the normative and legal fields heavily depends on a deep understanding of modernity and its effect on religious law. On this basis, it is an imperative to provide an answer to three questions. First, what were the grounds of the emergence of modernity in the West? Secondly, what were the constitutive elements of modernity? Thirdly, what kind of changes did modernity bring about in the traditional legal system, or what were the characteristic features of the modern law? It will be shown that modernity, on this account, made the law change in four directions. They are the "aim" and "source" of law, the legal "method" and the "competent legislature" within the legal system.Modern law came out of interactions embedded in modern life, on one side, and its existence provided for and guaranteed the survival of that life, on the other.

International law provides, according to the 1961 Geneva Convention on Diplomatic Relations and the 1963 Geneva Convention on Consular Relations, for the diplomatic and consular missions of a foreign country and their respective personnel in a host state to enjoy penal and executive immunity. There exists no specifics convention bestowing same immunities to other high-ranking political figures of a foreign country such as the Head of State, the Head of Government, or the foreign Minister. Nevertheless a quick and overall review of international law sources leads us to conclude that such distinguished officials also benefit from aforementioned immunities while performing the tasks within the sphere of their discretions and authority. Notwithstanding the above, no ranking official may invoke such immunities to evade persecution for acts which amount to serious breach of international law such as genocide, war crimes, and crimes against humanity.

Terrorism has a twofold effect on human rights. On the one hand, attacking innocent civilians constitutes the crime of terrorism, and on the other hand, governments violate human rights law in fighting terrorists; and certain states basically deny the applicability of human rights law in combating terrorism. However, human rights, as a system of law, contain considerable rules and mechanisms which could be applied in war against terrorism, and this applicability has enormously been acknowledged in international instruments. Therefore, States are not allowed to violate nor limit the application of human rights in the name of combating terrorism. Nevertheless, the system of human rights provides for the exceptional and provisional derogation of certain derogable rights if the terrorists attempt to attack; or the fight against terrorism involves state emergency. This derogation however does not allow States deny the rule of law and act arbitrarily in fight against terrorism.

Civil liability in Iranian law is founded on unreasonable act that leads to losses to others. Generally the responsibility for damages is attributed to persons who act negligently and cause damages to others. In respect of some harmful acts that are done in a «pure wrong» sense, and cause «bodily harm», Islamic law uses a different approach and allocates liability to «Agheleh». The persons who are named «Agheleh» are the father's family of the wrongdoer who take his heritage if he dies. The theoretical foundation for «Agheleh» civil liability is the «policy» and «distribution of losses» on the basis of a spatial insurance thought. It is a legal rule and not an option of persons. The «policy» is used as a foundation in different legal systems as a basis for some «no-fault» liability like the one that arises from road accidents. According to this basis the liability is allocated to owners of vessels and is not immediately imposed upon wrongdoer drivers.

Although neither the WIPO nor the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires specialized IP courts, some States have created specialized IP courts as the most appropriate way to implement their duties under international IP instruments. The specialized IP courts have privileges such as better understanding of IP issues by judges, establishment of rules and procedures that are unique to IP issues in nature, i.e. appoint associate judges or assessors to assist and provide technical knowledge, reduced risk of judicial errors, which contributes to the effectiveness of the administration of justice. Of course they have defects also. To help more efficient and effective enforcement of IP rights by specialized IP courts, there are basic questions which must be answered before setting up any specialized IP court. For example, do problems in the particular area disclose a genuine need for a specialized court? How have the problems been dealt with before the courts? Has there been any important legislation that has prompted or will prompt an increase in the number of cases being litigated in this area over a period of time? Is the volume or potential volume of work in this area sufficient to justify the creation of a specialist court? In this article I study privileges and defects related to specialized IP courts and also discuss the emerging worldwide trend to establish specialized IP courts and the impact of the specialized IP courts on the protection and enforcement of IP rights and also obstacles related to their creation.

This essay illuminates the legal nature and the rudiments of Time- Sharing contracts in the British legal system as one of the pioneers of using it in the world, focusing on different kinds of legal estate and co-ownership in the British law. According to the British law, the owners of Time-Sharing have a kind of Fee Simple Absolute in Possession regarding their property. Thus, they have the executive right for their belongings. Although such an ownership embodies some limitations, its legal nature does not change and it does not deny Fee Simple Absolute in Possession of the owners. As the name expresses, Time-Sharing indicates a kind of sharing and partnership and its elements have been based on sharing laws. Since there are different kinds of Time-Sharing, for either of each exists variable elements. As a result, there are two kinds of Time-Sharing. The first is ownership of the property in a certain period of time on a Tenancy in Common basis. The second is sharing the interest and the benefit of the property in a certain period of time on the basis of a Joint Tenancy.

The provision in article 268 of the Islamic Punishment Code, which goes contrary to previous laws, specifies that if the victim forgives the murderer of retaliation before his death, the right of retaliation shall be canceled and the heirs of the slain may not claim retaliation after death. A survey of the former and latter institutions and article 268 shows that the said law is different from the institution of satisfaction or permission before occurrence of crime and other similar institutions. The mentioned rule is neither a factor for justification of crime nor a factor for excluding criminal liability, nor a factor for exemption from punishment; but is a unique and special institution. This institution is not compatible with religious and legal indisputable rules because there is doubt in granting the right of retaliation to the criminal victim because of non implementation of murder and is contrary to the rule of "cancellation of what is not necessary". And also the dead person can not possess anything and the possibility of usage of retaliation right for the dead person cannot be considered.

The retreat strategy of penal law was the result of a movement happened in European countries in 1975. Decriminalization of some criminal acts was the most important result of this movement. Consequently, the most important European countries penal policy in line with the mentioned strategy was decriminalization, in addition to two other approaches- diversion and depenalization.In any case, the above mentioned penal policy has not had universality and generality. Among crimes, terrorist acts have seen a vast extension of decriminazation in France and other European countries in recent decades. This article tries to illustrate the existence of such offensive decriminalization in the field of terrorist acts in France by relying on French legal texts.

Misuse of psychotropic substances has harmful social and economical consequences and, specially, threatens individual and collective health and this enduced the world community for cooperation in order to control and repress the acts and behaviors that strengthen the misuse of these substances through the adoption of the "Convention on Psychotropic Substances, 1971" in the U.N. The Iranian legislature, too, in the Psychotropic Substances Act of 1354 criminalizes some acts that are related or lead to misuse of some psychotropic substances, but the variety and diversity of these substances and vast increase in their misuse along with their harmful effects on public health, necessitates the relevant act to be revised and improved and effective protective measures as well as suitable repressive solutions to be taken into consideration. On the other hand misuse of the psychotropic substances in some cases causes mental disorder as well as instability in the penal bases for responsibility and in the commission of offence. The analysis of individual penal responsibility in such a state is a subject that can be surveyed in this condition and its rules may be assigned in different conditions with the help of "intoxication" establishment.