MODARRES HUMAN SCIENCES
Year:2006 | Volume:10 | Issue:3 (TOME 47)|Papers Count:10

Genocide means any acts committed intentionally to destroy in whole or in part, a national, ethnical, racial or religious group. Various international instruments, from the international convention of prevention and punishment of genocide (1948) to the Rome statute for the establishment of international criminal court (1998), in protecting the existence and identification of these proposes require all the states to adopt necessary legislative and judicial measures to prevent genocide and to prosecute and punish the criminals.Criminalization and condemnation of genocide, as a serious international crime, is considered as Jus Cogens and Erga Omnes. Consequently, genocide has been criminalized in the internal law of more than 85 countries and they have ratified the necessary regulations to prevent the crime and punish the offenders.The treaty was ratified without reservation in Iran in 1953; however, no particular legislative and judicial measures to enforce the treaty have been made. It seems that criminalization of genocide in the Iranian legal system and conferring jurisdiction to the Iranian courts to deal with this crime may be a great step in reinforcing the universal will in order to prevent the worst international crimes and it is essential to ratify the international criminal court statute.

According to Civil Code-Article 490-item 2, the lessee is obliged to use the object of lease for the purpose agreed upon in the lease, or if no purpose was specified, for the purpose of profit in the way indicated by the circumstances and conditions of the lease. In case the lessee breaches the lease and possibly not being preventable, according to the aforementioned Civil Code-Article 492, the lessor has the right to cancel the hire.The concept and meaning of the enjoyment of profit contrary to the thing hired and its consequences is not well established in civil code as well as the law concerning the relations between the lessor and the lessee legislated in the years 1977, 1983 and 1997, This paper attempts to discuss these issues from Islamic jurisprudent point of view.This article, indeed, discusses the concept and meaning of the enjoyment of profit contrary to the thing hired in three kinds of hire; things, persons and animals. It also explores the consequences of the enjoyment of the contrary and the sanction of the lessor's breach including the right of the lesser's breach, if it is not possible to prevent the lesser, the liability of the lessor to the object of lease and the liability of the lessor to the profit. Considering the lessor to pay both the specified wage and the average wage of the contradictory profit is a category argued based on the theory of the possibility of possessing contradictory profits, provided that the profit specified in the lease is in contrast with the enjoyed contradictory profit.

Government procurement constitutes an important part of the economic activities of the Country. To combat corruption, to create equal opportunities for all suppliers of goods and services, to obtain goods and services with good quality and price and to achieve transparency in government procurement, the new Tender Act was approved by the Expediency Council in early 2005. This legislation is particularly significant for replacing tens of various regulations which were applicable in different government bodies. In this article, the principles and objectives of the Tender Act are first discussed. Then, the standards and safeguards mentioned in this act are compared with the Agreement on Government Procurement of the World Trade Organization in order to assess to what extent the generally acceptable international standards in respect of government procurement have been respected in this Tender Act.

Moral rights constitute legal and immaterial advantages related to the personality of authors work. Many of international regulations and national laws recognize the moral rights for the copyright author; with the difference that some of them have provided permanent protection of the moral rights and another have provided the limited period for this protection. Some international conventions and agreements have not provided the moral rights for the related rights; also, the national laws noting these rights limited them to certain cases.In this article, we study the foundation of the moral rights and their position in Iranian copyright and related rights Acts, the draft of copyright and related rights Act, the national laws of some countries and the regulations of related conventions.

Antarctic is one of the few regions on the Earth whose issues (particularly its legal issues) have not been adequately addressed and examined in the past decades for various reasons, including due to its geographical and natural location as a remote area. Notwithstanding, the new changes and developments occurred in the international community in the recent decades have demonstrated that there is no longer any area on the Earth towards which the world's countries may be indifferent. In particular, the unique characteristics of the Antarctic have made it an area which has a special situation in the view of the world's countries, especially developing countries. This is why the examination of the legal issues related to the Antarctic and the analysis of its existing legal regime are important.Although the presence of explorers in the Antarctic in the recent centuries and such justifications as adjacency have been used by a few states to claim territories in the Antarctic, the status of the Antarctic is so unique that it can be considered in the category of the areas recognized by international community as areas subject to the legal regime of common heritage of mankind (the areas such as the seabed and subsoil of the high seas and outer space). Accordingly, this paper analyses the status of the Antarctic and its legal regime and argues that, considering the unique characteristics of the Antarctic, it has the potential to be recognized by the international community as an area of common heritage of mankind. As a conclusion, the Antarctic can be subject to the legal regime arising from the concept of common heritage of mankind or a modified approach towards the common heritage of mankind in a way to meet the interests of the claimant states on one side and the international community on the other.

The Iraqi Special Tribunal is a body established under the Iraqi national law to try Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes or other serious crimes committed between 1968 and 2003. The statute of Iraqi Special Tribunal was enacted on 10. 12.2003 by the Iraqi Governing Counsel. The tribunal recognizes the wishes of the Iraqi people to establish a legal instrument suitable for proving their rights and uncovering the truth about what happened during the past years. The intention of the drafters of the statute was to attempt insofar as possible to comply with the international standards of due process of law and to focus on the crimes committed under the international law such as genocide, war crimes and crimes against humanity. But do they success in doing so or not will be discussed in this paper.

According to English legal system, misrepresentation is actionable when before the conclusion of the contract and with the intent to induce the other party, the misrepresentation makes a false statementas to material facts of the contract. In Iranian legal system which is derived from Islamic law, misrepresentation is actionable provided that the misrepresentator deceives the other party and the latter -because of deception- enters into the contract. Generally, in Islamic law, all kinds of acts and omission and nondisclosure which lead to the deception of other party may be actionable misrepresentations. However, there are some exceptions in these two legal systems: statement of opinion and puffery are not actionable misrepresentations. The bases of actionable misrepresentation in English law are common law, equity and Act of 1967, while, in Iranian law, the bases of actionable misrepresentation are rule of Tahzir, Ghorur and civil code.

This article, among all kinds of human trafficking, deals with the trafficking of women for prostitution. First it examines the grounds on which trafficking of women for prostitution is prohibited. Then, the position of "The trafficking of women for prostitution", as a crime in the framework of Islamic Criminal Jurisprudence, is discussed and concluded that it is among Taazirat (Discretionary Punishments), not Hodood (Prescribed Punishments). So, Islamic Criminal Justice can respond proportionately to the different degrees of this crime by providing useful punishments. The article then examines the compatibility of Islamic thinking with prevention and protective approach to the victims of this crime. In the second part, it comparatively reviews the universal current approach on the issue which has been reflected in the "Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children" which emphasizes the prevention, criminalization and providing appropriate punishments and protection of victims and the attitude of Iranian legislator to the issue, especially its latest measure in enacting "The Act Against Human Trafficking in 2005". The article concludes that the attitudes of the above Convention are generally compatible with Islamic approach and suggests some solutions for clarity and usefulness of the Iranian regulations.