MODARRES HUMAN SCIENCES
Year:2007 | Volume:11 | Issue:2 (TOME 51)|Papers Count:16

The word "Sharia" which in the Islamic legal studies' is translated as "Islamic law", is not adequate to define Islamic law, because Sharia covers a wider range of meanings than law usually does. Thus modern muslim jurists often define Sharia as revealed or divine law in order to distinguish it from "Fiqh". The mentioned conception of Sharia has problematized the binding nature of law in Islam, because it conceals its material bases in social norms. Therefore, it is a necessary task to Muslim jurists to make an effort to keep Islamic law acceptable by bringing the legal norms close to social norms. Thus: 1- Islamic law needs a basic reform in its legal horizon. Therefore, Islamic jurists should redefine the normative bases of Islamic law so that they can make the social norms close to law.2- The historical review of Islamic law is one of the important points that teach us that Islamic law in the past had a more closer connection to social norms and therefore, this point should be attended that social norms are changeable, thus Islamic law should be in correspondent with this changeable nature.

In the Iranian criminal law, order to murder is considered on the base of article 211 of Islamic penal code, an offence for which life imprisonment has been predicted. In spite of this stipulation, inference of different branches of the Supreme Court from this article is in a way that has practically led to omission of this criminalization.These branches deem merely duress or worth life imprisonment. While in article 211 of the Islamic penal code both commander and duress or are deemed life imprisonment. In this article we will analyse the opinions of this court which is considered as the governing judicial precedent (Jurisprudence).

Terrorism is not a new phenomenon, nevertheless, threats of such an evil to the contemporary societies make it distinctive from the other phenomena crossing law and others. The threats resulting from terrorist activities have never been limited to a particular territory but it has been changed in to a global threat. Terrorism attacks the values that lie at the heart of the Charter of the United Nations: respect to human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations and the peaceful resolution of conflict. Therefore, the United Nations has, so far, passed a diversity of conventions to fight terrorism. The UN Security Council has also adopted Different resolutions requiring the states to Figh terrorism.The advent of communication revolution, increasing number of air traveling, privatization of global economy and globalization and world with no boundaries are some phenomena which have been taken benefit from by the terrorists to attain their goals via dispersing insecurity all over the world. It seems that the legal system of Iran is not well-equipped with effective and updated machinery to fight terrorism. The crime of Moharaba (resorting to arms in order to frighten people), as an instance of terrorist activities, has been penalized by the Iranian legislature, but diversity and complicacy of the concerned activities, the ongoing organized and transnational feature of considerable number of such activities and failure in retorting them properly are some, evidence that necessitates to have a review on such a phenomenon i.e. terrorism and criminalization of the related activities. The Iranian legislature should notice this important issue and attempt to pass working laws on fighting terrorism in its different dimensions.

The purpose of this paper is: (a) to briefly examine the issues related to the element of compensation in the crime of forgery and to discuss different views expressed about it; and (b) to clarify ambiguities regarding the element of compensation in the crime of forgery that either have not been addressed in the writings of jurists or addressed differently with conflicting results. Therefore, the paper, firstly, describes and examines the element of compensation in the crime of forgery by relying on the opinions of the Iranian Supreme Court and the views of the criminal lawyers, and analyses the views on the basis of the Islamic Punishment Law. Secondly, it explains the conditions and factors necessary for the formation of the element of compensation in the crime of forgery. In contrary to some views that some of these factors are essential in forming the element of compensation in the crime of forgery, the present paper indicates that they are not essential and that they are just necessary conditions for forming such an element. In addition, the paper analyses the related theories and tries to find proper answers to the possible questions.Finally, the paper, by relying on various views and opinions expressed by lawyers, discusses the issue of compensation with regard to any illegal change in invalid documents.

It is recognized that, as a general rule, the beneficiary can assign his rights pursuant to the guarantee to a third party, with or without a specific stipulation to this effect. This rule is also endorsed in article 4 of URDG and article 10 of UNCITRAL Convention. It is expressly noted that assignment of the rights of the guarantee means assignment of the proceeds only, and that the assignee cannot call the guarantee without the cooperation of the beneficiary. This is only different if the guarantee contains explicit provisions to the control. Such a stipulation would be extremely dangerous for the account party, since it virtually turns the guarantee into a negotiable instrument and the risk of a call, including a fraudulent call, will increase significantly.Unless otherwise stated in the guarantee, the beneficiary is not entitled to transfer the guarantee in the sense that the transferee is able to call the guarantee independent from and without the cooperation of the beneficiary/transferor or in the sense that the transferee is entitled to request the issue of a second guarantee in his favor. The beneficiary s right to the proceeds of the guarantee upon a valid call is ordinarily also capable of being pledged, but this depends on the law that governs the guarantee. The approach of Iranian law to this matter is discussed in this article.

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is considered as the most complete document on intellectual property rights because it constitutes different aspects of IPRs such as copyrights, related rights, goods and service trademarks, geographical indications, industrial designs, patent and alike Also, it provides different sanctions of IPR protection.For accession to TRIPs, Iran is required to conform its domestic laws on IP to this Agreement. Naturally, this accession would give rise to some rights and commitments for that country. The present article, tries to consider copyrights and related rights in TRIPs and Iran accession to it.

Concerning the multinational company’s activities in different countries, the main problem about their bankruptcy is the conflict of laws in countries that companies are domiciled in them or they have properties. As necessity of inspection of company bankruptcy claim is the determination of competence out, thus, it is supposed to set up county or competence conflicts before solving the conflict of laws within the legal framework.Therefore, the unity (or universality) and plurality (or territoriality) theories and reasons of experts on this issue were analyzed, then efforts have been done for applying the unity or universality of bankruptcy were investigated. At the end, the legal competence of Iranian court for inspection of companies bankruptcy claims and issues of executive judgment were discussed. The obtained results, however, showed that since the nature of bankruptcy necessitates the same judgment of the conflict of domestic laws of countries with unity and universality of bankruptcy, the way of solution must be searched in the conventional laws. Nevertheless, the bilateral or multilateral conventions are not enough for this purpose, therefore, it is necessary to regulate a universal convention by encouraging of more countries to join this convention.

Where one of the parties of contract has the right to terminate it in accordance with defect, loss, fraud, incorrect description and option (khiar), he is bound to apply his right according to the articles of 415, 420, 435 and 440 Civil Act immediately and without delay, otherwise he will lose it. In these cases, the reflect able question is that what the meaning of termination urgency is, in other words, how much is the moratorium of application of the termination right and when does this start? This article surveys firstly the above- mentioned questions in Iranian legal system in detail and then studies briefly the answer of the British legal system as well as the Convention of Interactional Sale of Goods (Vienna - 1980).The results of this study showed that despite that the studied legal systems suggest the delivering date of goods as of the starting point of termination right, in Iranian law, urgency is considered when the holder of the right is aware of the cause of the termination right, whether the goods is delivered or not. Still there are so many who believe that not only the awareness of the cause of the termination but also being aware of the order of termination and its urgency is obligatory.