MODARRES HUMAN SCIENCES
Year:2005 | Volume:9 | Issue:3 (Tome 40)|Papers Count:10

As far as the role of judiciary in development of environmental jurisprudence is concerned, a short survey on judicial record of Iran indicates that the Iranian Judiciary could not have taken any remarkable decision in this regard, yet! But, unlike the Iranian Judiciary, the Indian’s one has come forward actively to make good the deficiencies of law and provide relief wherever and whenever required. In this way the Indian Judiciary has made an extensive use of Indian constitutional provisions, environmental laws and even common law of tort to protect the environment and developed a new environmental jurisprudence in the country. For instance, the Supreme Court of India, in applying its significant role in construing and expanding the ambit of statutes, ruled that the right to live, specified in Article 21 of the Constitution is not confined to mere animal existence but extends to the right to live with basic human dignity which in turn necessitates enjoying a healthy and polluted environment. In environmental litigation the rule of locus standi has been relaxed by the Indian Supreme Court and the device of Public Interest Litigation (PIL) has contributed to the raising of environmental awareness as well as shaking off administrative lethargy that seems to have set in the statutory enforcement machinery in that country. At the end, some suggestions have been rendered for protection and improvement of the environment and reinforcement of the Iranian Judiciary role in this field.  

Sometimes, in joint-Stock Companies, some shares with different motivations and according to the Articles of incorporation or decision of the extraordinary general meeting are considered as the privileged shares (Article 42 the legal bill amending certain parts of Commercial Code 1969). The possessors of such shares have rivileges which are not devoted to the possessors of  ordinary shares. One of these privileges can be more annual benefit. On the other hand, according to Article 575 Civil Code of Iran, division of benefit should be in the ratio of the capital that each partner has  invested unless in return for an action of one or some of them more benefit is taken into account. It seems that the Article 42, in which giving more benefit is not in return1 for an action, is in conflict with Article 575 Civil Code of Iran. Also in the opinion of some Islamic jurists allotting more benefit to a partner is just in return of an action done byhim, but, according to the belief which nowadays  has a lot of adherents among the Islamic jurists, we can consider more benefit for some partners even without expecting them to do any action. The present essay, considering general rules of Islamic jurisprudence look to prove the second view and determine the absence of any conflict between the Article 42 the legal bill amending certain parts of Commercial Code (1969) and Islamic measures.

There would be various defences performed by the accused or his attorney in the criminal proceedings. Reference to justificatory factors or excusatory factors is a part of them. Justificatory factors refer to those objective circumstances which justify a criminal act or make it rightous. Excusatory factors, on the other hand, denotes personal characteristc or subjective circumstances of the perpetrator that abandons the criminal proceedings from the subject. Both justificatory and excusatory factors, if achieved, stop the punishment of the perpetrator, but they differ in the possibility of using security and training measures, civil liability of the accused, self defence, the possibility of the punishment of abetors and accossories, burden of proof and procedures. The similarity of the above mentioned factores emanates from disrelationship of justificatory and excusatory factors of criminal responsibility. It seems that it would be fruitful to apply other tittles which would clearly indicat the effects and nature of the above mentioned factores. Nature, similar examples and the effects of justificatory and excusatory factors will be discussed briefly from this respect in this paper.

According to the additional clause (1997) of Article 1082 in Iranian Civil Code and drawing upon the new legal form of observation of inflation indices, the Mahr can be estimated in terms of the current rate. Of course this form is different from other justifications such as delayed payment penalty and stipulations. This distinction is shown by introducing and comparing these forms together. In the same way estimating Mahr in terms of the current rate needs fulfilling some formal and essential legal conditions which are discussed in this paper as the main aim of the present article. So, a number of vage issues and questions are raised and efforts are made to explain and answer them according to the legal historical ground, theoretical foundation and general rules of interpretation of laws.  

The recognition of patentability of  biotechnological inventions by the the industrial countries’ patent offices in the last two decades and increasingly  growth of  the number of patents in this field have caused considerable ethical challenges and controversies, apart from technical difficulties. Some challenges stem from critical views about biotechnology and the environmental effects of genetic manipulations of living organisms and some critics are related to the monopolistic profits of patent holders and limitation of third parties access to the biotechnologies and intensification of trade attitude to the intellectual property rights. However some challenges are especially related to the implications of biotechnological patents, such as commodification of life in general and human genes and his body parts specifically, violation of human dignity and biopiracy and unfair exploitation of the third world genetic resources and  traditional knowledge by the patent holders from industrial countries. After reviewig related legal developments and moral considerations in the patent laws and legislations, we will study  the approaches of patent offices through the case studies of some famous controversial patents. The morality of inventions has not been considered in patent laws of some countries, such as U.S., but many patent laws, including European Patent Convention, TRIPs agreement and EU Directive on the legal protection of biotechnological inventions, the inventions which are contrary to the morality are  excluded from patentable subject matter. However regarding the ambiguous concept of morality and economic benefits of biotechnological invitations and trade competitions in this field, the patent offices taking a utilitarian approach, narrowly interpret such provisions and rarely care the moral objections to the confered patents.    

The "margine of discretion" in criminal proceeding is a policy which has been recognized in Islamic law. Accordingly, judges have the opportunity, or indeed the right, to evalute the usefulness of the punishments awarded by them. In som criminal cases, however, there appear to be certain obstacles which may prevent courts to apply their own discretion, namely the effective role of the victim in the whole proceeding, the necessity of taking into account his aims (or desires) and the possibility of his forgiveness. In this paper, attempt has been made to illustrate that under Islamic criminal law the policy of "discretionary power" should be applied to all cases notwithstanding the right of victims.    

Legal status of a contract in Iranian law may be valid, void or non-operative. Some of these status may change into another one, for example a valid contract may change into the void one. Such contracts are called voidable. So a voidable contract is one which one of the parties or third person can put an end to at his option. Voidable contracts are not Known in Iranian law, but some exceptions can be found which this article deals with.

The discussion is about whether the Article No. 265 of Civil Code just has the meaning of non-voluntarily, or the presumption of owing of the one who gives the property is deduced from it. There are two opinions in this regard, and the supporters of either of these have their own reasons to prove their opinion. Upon the propounding, analyzing and surveying these proofs, first the paragraph 1 of the Article 1235 of French Civil Code should be compared with the Article of 265 of our Civil Code to know in which of these articles owing of the one who gives the property is presupposition of legislator. Upon reviewing the record of Islamic jurisprudence of the property which is given  to other directly or paying the debt by virtue of assignment, as well as difference of them with each other and through mentioning number of High Court of Cassation decisions, we will enter into explaining the position of judicial precedent about the contents of these Articles to understand which of these views is in conformity with presumption of the courts. Finally separating the various presumptions of the issue from each other, we’ll find out that payment through assignment from the view point of tenet and injunction is different from rendering the property directly, and we must accepet that the only existing presumption in this Article is the presumption of being non-gratuitous and there exists no other presumption. In other words, if the legislator has not sought the creation of the presumption of owing of the property giver, it is for the sake of non-existing of such appearance in the custom.