MODARRES HUMAN SCIENCES
Year:2005 | Volume:- | Issue:(TOME 41) SPECIAL ISSUE LAW |Papers Count:12

Under Islamic and Iranian Law, a married couple has certain duties towards each other which are referred to as conjugal duties. These duties are dealt with under the heading of Tamkin (which generally means obedience) including general obedience (tamkin-e amm) and special obedience (tamkine-e khass). Apart from conjugal duties a woman has no other duties towards her husband.Therefore if a woman does work at the order of her husband where according to custom there is a wage for such a work she is entitled to such a wage for her work, unless it is proved that she worked gratuitously.Note 6 of the Amendment of Divorce Provisions Act 1992 (1371) explains the cases where a woman can demand remuneration (referred to as ujrat al-mithl equivalent wage) for her work at home. According to Note 3 of the Act, a husband must pay all rights of his wife, including dower, maintenance, dowry and equivalent wage in cach, before the execution of divorce. This paper deals with the legal basis of the right of wives to receive the payment of remuneration for the work done by her at home under Islamic and Iranian Law and the way that it is enforced in courts.

The question of plurality and repetition of crime in the Iranian criminal law may be approached from three different angles: first is the definition which has been given to the said terms. Despite some doubts, there has been no change regarding the definition of the plurality of crime after the 1979 Revolution. However, as to the repetition of crime, the Iranian legislator while considering the issue of Hodud (God made punishment), has made an incomplete definition open to criticism. Second is the distinction which has been made between two kinds of material plurality of crimes. The legislat or has divided it to two category of material plurality of similar and different crimes. As to the later, the rule of collective punishment has been applied, whereas regarding the former, the rule of unity of punishment or the court's discretionary power to aggravate the penalty has been accepted. This initiation has also taken root from the hodud issue but considering the fundamental and substantive differences which exist between the rules governing Hodud and Tazirat (Judg made punishment), this measure of the legislator is untenable. Third issue concerns the criterion of aggravating punishment in plurality of similar crimes and repetition of crime. The legislator, in spite of granting the judge the discretion to aggravate punishment, has indicated no criterion for it This has led the Iran's supreme court to take a decision on the basis of the principle of nulla poena sine lege when it approached the issue of plurality of similar crimes. It did not approve the power of the courts to determine a punishment more than the maximum legal penalty.

One of the important principles in domestic criminal law is ne bis in idem or against double jeopardy. Under this rule, no one should be tried and punished twice for the same offence. This principle is cited in International and Regional Human Rights instruments. This principle is also considered in International Criminal Courts whether ad hoc or military. The developments of international criminal law show that universal feelings do not consent with repeating punishments for the same criminal conduct. The jurisdiction of I.C.C. is complement to national criminal courts. If the national courts try in regarding of the principles of due process recognized by international law, the I.C.C. is not authorized to prosecute the case. So, there is no reason to retry and repunish by it. If domestic courts do not regard these principles, I.C.C. has jurisdiction. Therefore, the ne bis in idem is not violated, because if the norms of international criminal procedure is not applied, it is not a fair trial. The most important short coming of statute I.C.C. in comparison to ad hoc is that it does not consider the applied punishment, necessarily. So, this principle is violated by I.C.C.

Due to the importance of resources of code articles and their role for interpretation of codes, the author has compared articles of contracts and obligations in Iranian civil code (articles 183-300) with Shiite law and French law and then he has declared his view about their main resources in every case.Although the writers of civil code haven't hidden their continued desire for applying articles of civil code to bases of Shiite law, the author believes that the articles of this section of civil code have considerably used both sources; i.e. Shiite and French law.

Will women enjoy the same rights as men on the Day of Judgment or they will face gender discrimination within the framework of rightful justice?Is gender involved in the recompense or comeuppance granted to the people for their eternal living?Will men and women enjoy the same divine favors or men gain further owing to their dominating character?Are heavenly recompenses, material and spiritual pleasures awarded to both men and women equally or women will be next to men?This article is supposed to answer such questions and elucidate the status of women in the afterlife from an Islamic standpoint with involvement of gender on the Doomsday.

In after revolution penal law, especially Islamic penal code (note 1 from article 49), contrary to previous legislations, "religious puberty" age is determined as criminal age limit. In practice, penal authorities without producing a definition for the term "religious puberty", considered it equal to concepts inserted in civil code conforming to "sexual puberty" especially note 1 of article 1210 of that act. According to which, females of nine years old and males of fifteen years old are considered criminally liable and punishable similar to adults.But, in most of national legislations, principally minors under 18 years old have not criminal responsibility and if they commit a crime they are only expose to protective or correctional measures and other alternative actions that focus on rehabilitation of the minors.So, international human rights instruments such as infant convention and etc, have forbidden for minors under 18 years old using death and imprisonment penalties which are opposed to human right's and have a negative impact on losing party.Also, in this provision for the minimum threshold, it can not allow the judiciary intervention and the application of sanction's. Our evaluation shows Iran criminal policy about juveniles delinquent is contrary not only to international legislations and legislations of most countries of the world but also to all scientific criminal principles and rules from criminal sciences view point, especially criminology and psychology. Thus, present study tries to express through a comparative survey and analysis as far as possible the relevant short comings and the appropriate solutions.

The right of suspension entitles a contracting party to suspend the performance accordingto rules of law, contractual terms or as a result of force majeure. The same right may also be established as withholding the performance, according to the provisions of civil law in connection with contract of sale or other exchange contracts, until such time as the other party shows willingness to perform. Both rights are based on reciprocity of the contractual obligations and interconnection of the reciprocal obligations. The right of suspension of the performance has been recognized under the provision of the standard general conditions of contracting, as well as under some of Iranian multinational contracts. The suspension as a result of force majeure although is not expressly been envisaged under Iranian law 'of contracts, it is recognized by necessary implication of contract law rules. The right of withholding which is recognized under Iranian civil and commercial laws is mainly related to contracts with single performance, while the right of suspension is recognized in contracts that need to be performed during a gradual process. At the same time the legal standing of suspension was not clearly discussed under Islamic law literature but it had certainly been contemplated by Islamic law jurists in relevant situations. On the contrary the right of withholding has been expressly discussed. There are similarities between suspension provisions under FIDIC and the general contracting form. However, the differences are regarding the fact that under general conditions of contracting the right of suspension is mainly a unilateral right while under FIDIC form of the terms and conditions of exercising the right, Its duration, extension and damages arising out of suspension are contractually provided for. Consequently except for the difference in terms of contracts with one time performance or gradual performance, the legal nature of withholding and suspension is the same and one may apply the reasons and legal basis of withholding to suspension, admitting the fact that suspension is an independent legal concept.

The purpose of this article is to give a comprehensive and clear presentation of the international human rights ftamework relevant to the right to a fair trial. This article also has focused on the right to a defence and the rights of the defence in international human rights law.The legal sources referred to in this article are the major international legal instruments dealing with the right to a fair trial. In order to find examples and more detailed explanations, it also refers to the case-law developed by some of the international bodies in charge of looking at complaints from individuals, i.e. mostly the United Nations' Human Rights Committee, in charge of applying the International Covenant on Civil and Political Rights (ICCPR) from 1966 and the European Court of Human Rights, which is the most relevant international human rights mechanism for more than forty European countries.Some of the international standards that the article refers to are actually legally binding for the countries which are parties to them; that is the case of the ICCPR Others are belonging to the category of soft law, as for example the basic principles on the role of lawyers established by the United Nations, which are not as such legally binding, but participate in creating a larger legal ftamework.It is this fiamework which is presented in this article in order to understand the coherence of the safeguards that have been put in place concerning criminal proceedings. It is important to point out at the fact that the right to a fair trial has both overall implications and very concrete and detailed implications. As to the overall implications, the right to a fair trial hangs over all other human rights and it can be advocated that all human rights comprise procedural rights as an inherent part of their effective protection. The very concrete, detailed implications concern among others more technical arrangements of proceedings before domestic courts.The article begins with some short introductory remarks on the right to a fair trial (I), then it envisages the right to a defence (II) and the rights of the defence or defence rights (III). It shall be underlined that this article only deals with criminal proceedings. As a matter of fact the relevant provision of the ICCPR focuses on criminal charges and proceedings; in an European context, Article 6 of the European Convention on Human Rights (ECHR) relates in the first place to proceedings concerning the determination of "civil rights and obligations". However, most of its provision concerns, as in Article 14 of the ICCPR, criminal charges.