مجله حقوقی دادگستری
پیاپی 97 (بهار 1396)

As legal systems are based upon rulers, legal policy in a particular subject, in proportion to the nature of the subject and the general objectives that the legislator have had in mind, is based on principles which are the basis of that policy, too, which recognition of them from theoretical point of view will be a guide to accurate interpretation of law, and in action, a substitute for legislator’s silence, and will eliminate doubt. This paper recognizes principles relevant to civil judgment enforcement through explanation of its nature and purpose, and while clarifying the concepts of these principles, based on the cognition of nature and the objective of legal policy in that subject, presents explanations in relation to their relevant general principle and intends to be an introduction to recognition of concept of principles in this particular legal policy.

The new Criminal Procedure Code of 2013, despite much theoretical criticism and practical problems it might produce, has tried to balance between the rights of the accused and victim. In doing so, has provided guarantees and safeguards to materialize this goal. In one hand, with providing general safeguards, has tried to protect both parties. On the other hand, some special guarantees have been provided for each party. But it seems that these legislative goals have not been reached and there is not such a balance between two parties of a criminal process. This is mainly because the judges and other officials of criminal justice system are not equipped with necessary abilities to enforce the laws properly. There are also some structural problems which hinder this balance. So it seems that restorative justice is the best mechanism to reach this balance.

One of the present main legal, social and economic problems of the country which has turned into a government’s and the judiciary’s concern is the phenomenon of Speculation. This phenomenon is important both economically and environmentally which is required to be dealt with by criminal law–as preserving the main values in the society. Such an approach will necessitate the proactive (preventive) and reactive (punitive) measures and requires a detailed understanding of this phenomenon, its extent and methods used in its analysis. Once we intend to deal with this phenomenon, we will encounter various significant gaps and vacuums such as lack of clear definition, lack of clear domain, and eventually lack of specific criminal measure regarding the many acts done by the speculators. Also through scrutinizing the existing rules and regulations relevant to the public and state lands, we come to understanding that not only our existing law cannot prevent this phenomenon, but also in some cases, the law aggravates and propagates such a phenomenon. Also because speculation is mostly done by those white collar offenders who are influential in the society and have the political, social, economic relations , such contradictory laws and their pores make easier for those people to do so.
So, the first step in dealing with this phenomenon is eliminating regulatory gaps and enacting comprehensive laws which preserve the natural and national resources of the country.

Insecurity feelings caused by changes of the first decade of the third millennium in the world, became the preface for adoption unprecedented strict and repressive measures that was implemented in the light of the slogan of combating crime and call security. In this way, in the field of criminology we see forming the new approaches in the twentieth century because of increasing of crimes that are of security in nature. New perspectives with the concerns of establishing security of lives and property of citizens and offer control-based and disabling thoughts of security based criminology provided the area to deviate of corrective approach of clinical criminology and focused on security and repressive approaches. This changing of approach influence the orientation of criminal law, in the way that establishing legal–judicial security is influenced by the physical and financial security of citizens and public order. In this way, it appears many effects on criminal law of different countries with the governance of security approaches of criminology and concepts such as public order and the security of society on individual rights and freedoms. The fair trial standards are ignored by Accepting security-based approach, while establishing stable security is not implemented through breaching of defendant’s rights. So, in the current study, the effects of the new approach on the criminal code and especially on the procedural law and fair trial standards were analyzed from a different and new perspective.

The basis of accepting the passive personality principle is to protect victimized nationals. In the face of special provisions and circumstances, his/her country has jurisdiction. This principle, in Iran law system, had been accepted in limited areas. While several countries have accepted this principle for a long time and referring to it is expanding in national and international law. This principle is not in conflict with Sharia rules and the Constitution of the Islamic Republic of Iran. Then, according to its legitimacy in international level, this principle has been legislated in Article 8 of Islamic Penal Code of Iran. It can be an effective measure to protect nationals.
This study is considering how this principle can protect national's interests, the challenge of this principle with other principles and the way it interacts with other countries which have jurisdiction over the case.

As usual, with respect to observance of formation and creation conditions of contracts status, they are divided into three statuses: authenticity, annulment, and ineffectiveness. Each of these three terms possesses special status that has been stipulated by legislator following to observance of the required qualifications. In some cases, the terms of the concluded contracts possess all basic conditions for authenticity (correctitude); however, often due to treating with third parties, they may encounter some status that is assumed as type of ‘pasture tax’.
The pasture tax denotes a status in which the contract includes the authenticity conditions but in order to observe the rights of third party in the given contract, it should be waited within time interval for pasture tax status so if the right of third party is given typically in whatsoever after that period the contract is correct otherwise it will be annulled. In other words, the given contract does not encounter ay problem at the expedient phase but it will be exposed to some barrier in effectiveness of the given contract duly.
Some experts have assumed this status as synonymous with non- referable status in French law. This is a paradigm that has been criticized in the preset article ad we have interpreted this point with implication of some evidences ad documentation that these two statuses are different from each other so assuming them as synonymous terms is improper.
The basis of pasture tax status is to composition of rights of both parties. Unlike other institutions, this term is not employed only for adjudication of third parties or both contract parties, but it will be tried to achieve rights of all contract parties. We try to analyze ‘posture tax statuses in terms of jurisprudential and legal perspectives in the current essay. In this course, we will look at Iranian, Islamic, and French law systems.

The main subject of this paper is the analysis of nature of exceptions of article 84 of Code of Civil Procedure, based on the classification of defenses to substantive defense or formal defense. Although exceptions of article 84 of Code of Civil Procedure are accepted as formal defenses in general, but more contemplation can show that all of these exceptions don’t have the same nature. Most of the exceptions are formal rules, but they sometimes need to substantive rules and objective matters and this will not influence their nature. Some of the exceptions are substantive rules, but they are propounded in the formal law to use in the formal law.In fact this usage are introduction for performance of the formal rules. Some of them are substantive rules and as a result, defense against them is substantive defense. But article 84 of Code of Civil Procedure has the same manner with these exceptions.