نشریه دیدگاه های حقوق قضایی
پیاپی 57 (بهار 1391)

As a legal point of view, article (728) of Islamic Penal Code has a special position in the Tazirat Act. This article rules the whole Tazirat as a principle. After a proper understanding about this article, a new theory will govern the "Penalty" principle in Iran penal system, which is the theory of "expediency- tendency" in Tazirat. According to this theory, the legislative has precisely provided the maximum punishment in Tazirat and the judge can by no means issue a verdict beyond these legal provisions. But in determining the minimum punishment, changing the punishment into other penal, the judge has a wide discretion. In fact, this is the judge who must consider the exact position of the criminal for ruling "a proper" punishment; and if he doesnt find an expediency in Tazir or find an expediency in Tazir, he can use a penal alternative. The expediency is based on correction and deprivation of a criminal from committing a crime. The true understanding of this theory depends on reconsidering the cause of enactment of this article and its position in the legal system which is "intentionally" or "by expediency" forgotten.

It is essayed in this article to determine the cases of accessorily in private law. In this effort, numerous cases have been determined. Each of these cases has been considered as the case of accessorily, because of some accessorial relationship between its elements. For example, in employment relationship, one the parties (namely employee) has the juristic subordination from other party (namely employer). In other hand, in accessory contracts, as one of the accessorily cases in private law, the conclusion, effects and dissolution of the contract based on the basic obligation. This accessorial relationship could be seen in other cases of accessorily in private law.

One of the issues long discussed in Law of Tort (civil liability) is the effect of act and fault of injured person on Tort action. In Roman law, condition that committed fault, injured person was deprived of compensation, without the type and degree of his intervention in damage occurrence being studied. In ancient Common Law this rule was governed too. But it was gradually modified in Western Legal systems, especially in Common Law. There are interesting issues on foundation and conditions of this rule being practiced, and on the mutual effect of injured and defendant act on each other. This study aims at investigating the issue along with its changes over time in Islamic Law, Common Law and, French Law.

In case of existing a reliable agreement the courts do not have jurisdiction to consider the settlement of the case. So, the effect of arbitration agreement is to exclude the jurisdiction of state courts. The exclusion of court jurisdiction is not meant the absolute non-intervention in arbitration proceedings. Arbitration may not exist without a degree of court intervention. But, this intervention has to be limited, or else it is possible to become a tool for separation from the purpose of referring to arbitration. In this direction, a minimum court intervention is necessary in arbitration award enforcement and when a losing party avoids of enforcing it voluntarily. Court intervention in arbitration may be before or in the course of arbitration and or even after the issuance of the award. In each stage, these interventions which may be supervisory or supportive constitute an important section of courts proceedings in the process of arbitration. In this article, the writers have attempted to analyze the courts intervention cases in arbitration proceedings and the possibility to restrict it with reviewing the relation between court and arbitration.

Corporate crime is an extra pervasive and general term, including a broad spectrum of crimes. In spite of the importance and sensitivity, these crimes, has always been in the margin of the criminological considerations and the most criminological studies, theories and courts functions has devoted to violent or street crimes. Combating against corporate crime (as one type of the white collar crimes), requires the recognition of specifications and different aspects of this kind of criminal phenomenon that can be possible under the protection of criminological studies in this field. The present article is devoted to the most important characteristics of white collar and corporate crimes, as one of its subsets, their similarities and distinctions, differences with street crimes, and the study of the examples of corporate crimes in Iran’s laws, from a criminological viewpoint.

Today supervision and control is found prominent and immeasurable role in Countries, development. One of supervisor institutions in our legal system is the principle ninety commissions which consider under parliament, public complaints against the three branches working. On the one hand in the world different legal systems, one of important supervision mechanisms, be seeing under ombudsman institution that usually in interacting with parliament, investigate to citizen complaints against public and state institutions in the non- judicial method. Regarding likeness that seen in the principle ninety commissions and ombudsman institution qualifications, can adopt mentioned commission in our legal system as parliament ombudsman? Due to this important, this paper with meditation in two mentioned institutions structure and function, analyses their Similarities and differences.

Jurisdiction of the International Criminal Court includes the international crimes which stipulated in the Statute of ICC. Criminal procedure of international crimes needs the protection of the Court’s criminal process. This protection is provided by conviction of persons who perverting the course of international justice. The issue of this paper is to answer this question that do the ICC has jurisdiction to try the offenses against the administration of justice and the extent of this jurisdiction is. So, considering the major legal systems’ approaches and international criminal law is explained the foundations of this jurisdiction (part one). The extent of the jurisdiction is understood by examining of the Articles 70 and 71 of statute (part two). Finally, it is ended by taking the first case into account which related to offenses against the administration of justice in Court’s procedure (part three).

Commercial instruments, in particular meaning, or bills are one of the most important means for business parties to enter into transactions. Such instruments are considered as a certain form of property with a great variety of uses. For example, they can be used as a means to pay or to use as a guarantee or security. But a question has always been posed:” whether such instruments can be used as security or guarantee in accordance with law”. Mortgaging the instruments which are not regarded legally to have genuine value is under question and discussion among law professionals. Some of them absolutely accept this and some not. A group of them discuss the instruments stressing on the fact that they are bearing or not. Most of the law professionals consider such instruments within the framework of mortgage contracts, and they place no difference between security/guarantee and mortgage; while, it seems that mortgage has a general and broad meaning, while mortgage is a particular example of that and is subject to civil code. Therefore, it can be said that mortgage is a security, but the contrary does not hold. This separation occurs in British law as well. Here in this paper, I deal with the legality of mortgage and security uses of bills in Iranian and British laws. General conclusion which can be drawn from my research is that bill means check and promissory note which is a certain kind of credit property of movable nature, so it is capable to be legally transferred, received, mortgaged and used as security or guarantee. Such matters have not also been accepted by British law, and there can be no difference between Iranian and British laws in this regard, although the mortgage is understood and treated differently in the two laws.