Legal Research
Year:2012 | Volume:- | Issue:56|Papers Count:16

Mulla Mohammad Khorassani was one of the renowned scholars of the modern era and was the founder of the system of "technical Jurisprudence" in Najaf. In collaboration with some of his outstanding disciples, he was among the leading theorists of the Iranian Constitutional Revolution and he issued a number of declarations at that time. Due to the important content of these statements and the personality of their author, I believe that these should be considered as "Fatwas". These ideas need to be reevaluated from the point of view of their underlying principles and judicial justifications. It is expected of any jurist that his or her pronouncements be corroborated by legal documentations and references. Reexamination of Mulla Mohammad Khorassani's ideas and perceptions would reinforce the principle that Shiite Jurisprudence can be practised on the basis of rational principles, justice and human dignity. This means that, in order to reach an Islamic legal verdict, one should consider these important principles as a priori, and not on the level of other common rules. In the article, we have attempted to prove the above point by quoting certain examples of his "Fatwas" issued at that period.

In the current international investment system, although most of the states have voluntarily accepted some restrictions on their sovereignty in order to participate in international economy, they have created a powerful tool to ensure their authority and sovereignty in sensitive cases, in order to protect the fundamental basis and principles of their countries. This contractual device is the anticipation of exception clause related to preservation of essential interests of the host state of investment. For instance, in investment maters, with the aim of providing a stable and predictable environment for foreign investors, governments conclude bilateral or multilateral treaties. Such treaties, by predicting various rights for investors, to a large extent constrain the sovereignty domains of the host state of investment on the one hand, they contain a clause known as exception clause, dealing with, generally, protection of essential interest of the host state such as, its critical economy situation, security, public policy, and the like, on the other hand.Despite the growing trend for inclusion of such an exception in international investment agreements and treaties, especially bilateral investment treaties of promoting and protecting foreign investment, Iran except in very rare cases, has failed to include such a condition in its investment treaties. Hence, this article intends to review and analyze this subject, to clarify its importance for practitioners and designers of treaties related to investment in Iran and to provide a guideline for its recognition. For this purpose, in addition to investigating this exception condition in the practices of international investment agreements and international cases, the verdicts issued in Argentine cases in its financial crisis, is an appropriate opportunity to review this condition in practice, which have been studied in this article.

Public interest is one of the fundamental concepts of politics, law and morality. However, as a result of the various uses of the concept and theoretical controversies arising from those uses, the meaning of the concept is not clear. In this paper, we shall deal with the meaning, characteristic features and instances of the concept. This approach is based on a basic presupposition: public interest is the common interest of all members of the society. Indeed, public interest is the "interest of the collective life". Therefore, public interest relates to the basis and very existence of the collective life and, hence, is of a collective, minimalistic (minimum requirement of justice), instrumentalistic and morally indifferent nature.

Penalties that are based on principles that can be applied in all punishments should be respected whik corporal punishment is one of the types of sanctions that has been divided according to the nature of the punishment. This type of penalty follows certain principles that distinguishes them from other punishments. Although these principles can be also be seen in some other punishments, despite this corporal punishment is placed under question. Inflicting pain, causing stigma, being severe, vindictiveness and retribution are certain principles governing corporal punishments. What do these principles mean and what is their basis? What aims do these principles follow? In today's social situation and according to Iran's penal system, how is corporal punishment and what place does it have? This set of issues is investigated and discussed in this paper.

The purpose of this study is to compare meta-cognition and tolerance of ambiguity between prisoners with and without previous convictions (records) and the non prisoner population of Kermanshah. For this, 77 prisoners with previous convictions, 72 with previous convictions and 75 non-prisoners among the people of Kermanshah have participated voluntarily in the research and filled in the metacognition questionnaire and tolerance of ambiguity scale.Results of multivariate analyses of variance (MANOVA) indicate that the mean of positive worry beliefs and beliefs about the need of competence to control thoughts and danger in normal people was higher than in prisoners without previous records and, among them and prisoners without previous records was higher than prisoners with previous records. The mean of beliefs about the uncontrollability of thoughts and risk in prisoners with and without previous records was higher than in non-prisoners. The mean of tolerance of ambiguity in prisoners without previous records and non-prisoners was higher than in prisoners with previous records and in non-prisoners was even higher than in prisoners without previous convictions. But no meaningful difference between the means of cognitive self- consciousness and of cognitive confidence was found between the three groups of participants.

In most of the legal systems, moral damage is recognized as a type of damage along with material damage. The importance of moral damage has increased; as in some cases the amount of compensation awarded by courts for moral damage has been significantly higher than those for material damage.The history of moral damage in our legal system can be traced back to 90 years ago in the former Criminal Code. Later the Criminal Procedure Code and the Civil Liability Code affirmed the statement of the Criminal Code on recognition of moral damage in the Iranian legal system.After the revolution 1979, the Consitution Act stipulated moral damage in principle 171. In their interpretation of article 30 (1) of te press Act (1364), the Islamic jurisprudents of the Guardian Council declared that, the mentioned article- under which moral damage was recognized- is contrary to Sharia. Thus, the legislature in the amendment of the Criminal Procedure Code eliminated moral damage from section 2 of article 9 of the criminal procedure code (1378).By the elimination of moral damage from the Criminal Procedure Code (1378), some judges changed their approach and are reluctant to consider moral damage as a compensable damage; whereas, the existence of article 171 of the Constitution and the applicability of the Civil Liability Code leave no doubt over the recognition of moral damage under Iranian law.The criticism of some judges about the lack of any criterion for measuring moral damages is rejected by reference to article 3 and 5 of the Civil Liability Code. According to the stated articles, the amount of moral damages depends on the circumstances and should be decided by judges on a case by case basis.

International liability for injurious arising out of acts non-prohibited by international law is a non-customary and developing regime. This regime consists of special contractual rules which have been developed in problematical areas of international society such as oil pollution, nuclear damage and genetically modified organisms.In comparison to the regime of State responsibility for internationally wrongful acts, new and different approaches are being developed by the international liability regime. This article seeks to show that the prevention, privatization, and collectivization of liability are the main approaches of the emerging general international liability regime.

L' article 9 du code civil iranien dispose que "Ies dispositions des traites internationaux, ratifies conformernent a la Constitution, entre I' lran et les autres Etats, sont considerees comme lois". Cela etant, en dans Ie silence de la constitution a cet eqard, la loi iranien semble mettre la force des conventions internationales sur Ie pied d' eqalite avec celie de la loi ordinaire, de sorte qu' il serait loisible au parlement de passer une loi contraire a un traite international d' ou Ie juge iranien pourra eliminer Ie traite en application de la principe lex posterior derogat legi prior.Bien plus encore, Ie juge devra refuser un traite international lorsqu' iI estime une contrariete avec une loi posterieure des lors que I' article 9 dit que les traites sont "consideres com me lois" et donc n' ont pas, en quelque sorte, la rnerne valeur que les lois, mais un pied inferieure que les lois.Le present article a pour but de montrer qu' une convention internationale, resultat des volontes bilaterales ou rnultilaterales, ne devrait pas etre deroqe par la volonte unilaterale de I' une des parties. Ainsi, I' article 9 du code civil devrait etre interprete dans un sens conforme aux reqles fonda mentales du droit. II en resulte, naturellement, que la mise en place des relations entre la loi ordinaire et les conventions internationales ne passe pas par les reqles telles que la lex posterior derogat legi prior.

The plurality of the actus reus of a crime is one of the bases of attribution which has been prescribed in most legal systems so that, in Iran's legal system, Article 47 of the Islamic Penal Law and, in Egeypt, Articles 33 to 36 and 115 of the Penal Law are the basis for this.Although the Iranian and Egyptian legal systems are similar in their acceptance of the plurality of the actus reus system and in the separation of plurality of the actus reus of crime from the plurality of the mensrea of a crime, they are differences in the procedure for retribution in the presumption of combined.So, in this manner, Egyptian legislators unlike Iranian legislators accept the proportional combined punishment rule in the plurality of the actus reus of a crime. Thus, the legislator combines the issue of sentencing with the process of enforcement in many cases.

Historicaly the father has a prominent and exclusive role in the attribution of nationality to their children in nationality laws and the role of mothers has either been ignored or reduced. This attitude has now changed and legislators in most countries have granted the same role to fathers and to mothers in recent decades. Iranian legislators have not referred to the role of the mother in the attribution of nationality to her children at the time of the adoption of the Civil Code. Moreover, legislators have not amended the discriminatory rules of the Civil Code but have granted less privilege to them in contrast to the foreign women. It seems that the revision of these rules is necessary and is accordance with the needs of the contemporary world. Therefore, the attribution of Iranian nationality to children born to a foreign father and Iranian mother is necessary.

Whereas the fight against economic and/or organized criminality is among the first priorities of the international community, and while of researchers crime all over the globe try to find the most effective means for controlling such criminality, there is particularly a new and large consensus about the necessity of holding legal persons accountable for offences in this area. According to the UN Convention against Corruption of which Iran is a State Party, the Islamic Republic has an international obligation to establish the liability of legal persons for offences under the Convention. If implemented, through diminishing the chances of corruption and related crimes, the relevant provisions would have positive impacts for upholding the Rule of Law. Nevertheless, it has to be admitted that in the current situation, leaving aside the provisions of the new Law on Cyber Crimes (2009) which recognizes the criminal liability of legal persons for certain cyber offences the Iranian legal system, as opposed to many other national legal systems including that of France, has little capacity to prevent transgressions undermining the country's vital economic and social interests committed by or through legal persons. Inevitably, to rectify this shortcoming, appropriate measures must be taken; legal persons should be held directly accountable for offences made possible because of deficiencies in their internal control and supervision systems or due to management failures to exercise due diligence, as well as for offences committed on their account by their organs and/or representatives. The law should provide for effective, proportionate and deterrent sanctions (including fines as well as non-financial sanctions) in all the cases involving corporate crime, regardless of whether the crime is committed in cyberspace or otherwise. Meanwhile, we observe that any reforms should be carefully designed the adoption of models such as that used to establish corporate liability in the United States is considered too harsh and, hence, inappropriate. Similarly, in order for an effective law enforcement to be possible, revising the criminal procedure in order to adopt it to the requirements of prosecuting legal persons should be considered as yet another necessity.

Despite the fact that they are common in commercial practice, the quality control terms in licensing contracts, which are related to the protection of consumers, are new to the Iranian law- making tradition. The terms are only relevant to contracts for licensing trademarks, in other words franchise contracts. Understanding the terms requires a historical investigation into licensing contracts in this field and the underlying reasons for introducing these terms and conditions in to other jurisdictions which have a long history of licensing trademarks and other forms of intellectual property rights. We have undertaken this investigation in comparison with developments in Iranian law. The underlying reasons for this control, however, are divided into two groups: the reasons for protection of consumers and the reasons for the protection of trade marks. A comparative study of UK and US laws could be useful with regard to Article 42 of the Trade Mark Registration Act of 1386 and Article 142 of its implementating regulations could be useful in understanding this topic.

In principle, the supremacy of law and regulation is considered as one of indicators of civilized societies which, at present and in view of the growing influence of globalization, has transcended national borders and has been recognized as a device for regulating relations with a global dimension.In this situation, experts have paid so much attention to foreign investment that, in recent years, we have witnessed an unprecedented growth in the number of bilateral investment treaties (BITs). It is worth mentioning that as a result of the complexity of economic relations and interests and ideas being interwoven in era of globalization, on the one hand, and the negative impacts of foreign investment in the fields of human rights and environment be coming more recognized, on the other, the question has been posed as to whether the existing regulatory frameworks regarding foreign investment (national, bilateral and regional) are sufficient to meet present needs or if those frameworks should be revised in order to set up a new framework in which the governing rules tend to be comprehensive and global?With regard to the aforementioned question, it has to be said that fashioning comprehensive rules with global coverage seems to be necessary for regulating complex relations in the process of foreign investment and for harnessing the activities of multinational corporations in this era; that is to say, rules that would have great adaptability to the nature and dissemination of activities of those corporations. Nevertheless, the process of laying down those rules not only tends to be costly and time consuming, but also requires overall cooperation and flexibility from all the players active in foreign investment in order to find a fair balance between conflicting interests and ideas.