NAMEH-YE-MOFID
Year:2003 | Volume:9 | Issue:3 (37 LAW)|Papers Count:9

Independent bank guarantees and their American equivalent, standby letters of credit, are a relatively new legal phenomenon. Their paramount function is the furnishing of security for contractual obligations. The chief characteristic feature of the modern multi-party gurantee is their independence (or autonomy) from the principal contract which comprises two aspects: firstly the payment obligations of the bank and the beneficiary's rights to payment are to be determined by reference to the terms and conditions as stated in the guarantee and not by reference to the underlying relationship. Secondly, the relationship between bank and beneficiary is not affected by the (mandate) relationship between bank and account party: Accordingly the bank must pay and only pay if the terms of the guarantee have been met and it Cannot raise defenses which emanate from the underlying relationship in a way a surety (accessory guarantor) could. In order to be entitled to payment by way of compensation, the beneficiary merely has to present documents as specified in the guarantee (documentary nature of payment conditions) and need not show default in any other way. The principle of independence is limited by exception of fraud. The duty of - the bank is the examination of formal compliance of these documents with conditions of the guarantee. 

Although the western philosophers and jurists' efforts during 18 and 19 centuries to prepare the grounds to prevent enforcement of extreme and violent punishments caused the imprisonment to be accepted as the primary punishment in early 19th century, but not after a long time, the extreme undue use of the imprisonment created a barrage of criticism against it, that made the supporters of the imprisonment doubtful and eventually made them react to the criticism. One of the most important reactions to this barrage of criticism was the suggestion of using alternatives to imprisonment and avoiding imprisonment and that it should be considered as the last resort. The present article with the title "A Comparative Study of Alternatives to Imprisonment and Tazir Penalties in Islamic Judicial System" is an effort to explain the essence of alternatives to imprisonment among Islamic penalties and their application methods in rules, that derived from Islamic judicial system. Of the issues proved in this article is that Tazirat penalties in Islamic judicial system is a means to make use of measures that can accelerate the process of offenders correction, therefore the alternatives to imprisonment are in fact "Tazir Penalties" that under the expediency of the ruler of Islamic society, there are no limitations in applying them.  

In this paper, theories on the establishment of the content of the foreign law are analyzed. These theories besides enjoying legal support in the jurisprudence of countries such as France, are defendable in private international law systems of other countries including Iranian legal system. The first of these theories considers the ascertainment of the content of the foreign law among the duties of the parties. According to the second theory the courts must attempt to seek that content but its establishment and knowledge thereof are not their obligation. The third theory invokes the legal nature of the cases and the Parties' will in the choice of the applicable law. In some cases the Parties may invoke non-applicability of the foreign law rather than its applicability. As to the application of the peremptory (jus cogens) rules of the conflict of laws, however, the judge is bound to apply the foreign appropriate law and to attempt to seek it and attain its content. And finally, in the fourth theory the search for the content of the foreign law is necessarily the obligation of domestic courts the non-fulfillment of which is considered a violation of the rules of the conflict of laws.  

The issue of abortion is one of the product of scientific, social, cultural, economic and political developments and has close ties with the explosion of population, resource limitation, human rights, women's rights and freedoms, states, interests and, finally, the expedience of the human society. The prevalence of the viewpoints of the experts in the field supporting the unconditional abortion has had great impact upon states in the second half of the 20th century. This has resulted in millions of annual fetus destruction legally. Generally speaking, the Islamic world, while taking a realistic approach on the issue, on the basis of the Islamic foundations, considers abortion religiously forbidden. Islamic Feghh (Shia't jurisprudence), while having solid foundations, flexibly faces this social problem in an enlightened manner. Thus, in certain circumstances, it permits abortion but disagrees with any demand pregnancy termination.  

The Iranian legislature has not accepted the passive personality principle, however many countries have accepted this principle, especially that its acception is neither against the international criminal law, nor against the Islamic Jurisprudence, Meanwhile, the unacception of this principle seems against the Iranian national interests.

Humanitarian intervention in its classic sense refers to unilateral or multilateral interference of a state/states into the domestic affairs of another state through resort to force and for humanitarian purposes and objectives. There are plenty of questions with respect to humanitarian intervention including: Is humanitarian intervention ever permitted under international law? How can one establish the legal validity of such intervention? Can the Charter of the United Nations, international custom, or state practice provide justification? What are the differences between intervention, self-help, and self-defense? What are the conditions of permissibility? What is meant by gross violation of human rights? But there is a fundamental question which is the focal point of this paper: Is humanitarian intervention morally justified? On the basis of which moral theory can it be justified? Obviously, states are morally responsible for the violation of basic human rights. There is also no doubt when human rights are violated systematically, grossly and in a widespread manner so that human conscience is shocked, non-action on the part of international community is not morally justified. This article, while studying the moral grounds of such a duty, examines the limits and scope of humanitarian intervention and the requirements of its moral justification.  

The institution of jury is of a long history; but its recent introduction into Iranian legal system, on the one hand, and the uncertainty of its fiqhi foundations, on the other, leave its real status unclear. The popular appointment of jury members, the judicial notice to their opinion, their lack of judicial expertise and their non-intervention in the judicial proceedings are among the requirements to be observed due to developments in the nature of this institution. Commitment to these requirements in Iranian legal system can hardly be secured unless such a status be accorded on the basis of Islamic jurisprudence (fiqh). The present article, therefore, while exploring the nature of jury in the light of its origins, intends to critically examine Iranian laws, offer criteria for the compatibility of this institution with the rules of shari'a and finally give suggestions to strengthen legislation.  

Cheque, which has undoubtedly proved to be a useful instrument of payment, has, since its inclusion into the Iranian legislation, caused a certain number of difficulties which occur mainly because users who accept to be paid by cheque usually trust in the solvency of the drawer, believing that this has certainly been verified by the drawee bank while opening an account for its customer (the drawer). In such a context, the main question to be examined is whether it would be appropriate to consider the drawee bank as liable vis-à-vis the holder of any dishonored cheque, if it is proved that, while opening a bank account for the drawer, the bank has not acted as prudently as it should have. With regard to this question two theories could be put forward: some may argue that the bank being a mere drawee of the instrument, as it is in the case of a bill of exchange, should not be held liable for the dishonor of the cheque, others may take the view that the bank should be held responsible of its customer (the drawer), and should be substituted to the latter in its obligation to honor the cheque vis-à-vis the holder. Though, a moderate view may be defended which stands between the above mentioned exaggeratory points of view. Such a view would be that the bank should be held responsible only to the extent that it has committed certain faults in selecting the customer and in delivering to him the chequebook by means of which the said customer has drawn a bad cheque. The object of this article is to verify whether this last point of view, which has been experimented in some European countries, is applicable in Iran as well. We know that the France, in the diminution of the number of bad cheques in recent years.