فصلنامه راهبرد
پیاپی 82 (بهار 1396)

In the early decades of the 21th century, one of the important issue of international criminal justice is importing the international crimes into national justice system in order to make possible the national prosecution of international crimes. In fact, by experiencing unimaginable atrocity during the past century, protecting the peace, security and well-being of the world is a very valuable humanitarian goal. To achieve this goal, different measures have been taken like establishing ad hoc or permanent courts to put an end to impunity, to prosecute the international crimes and to punish the perpetrators of these crimes, but regarding the sovereignty right, the case is always that priority is given to each country to prosecute the international crime. Therefore, in the first level, countries themselves should prosecute these crimes. In this way, criminalizing international crimes in the internal criminal law is a necessary instrument for prosecuting such crimes in the national criminal law. Sometimes, this necessity is driven from a treaty or even international customary law, but it seems that the international criminal justice is the most important basis upon which importing the international crimes into national criminal law is justified. There are different models among which ratifying autonomous national criminal law provision is preferable, due to the fact that application of this model provides the clear definition of crimes and their punishments.

The word "law" in legal texts reminds us several concepts. This word is used five times in the principle 138 of the Constitution without having the same meaning. Determining the meanings of this word in the principle 138 can contribute to formulate an appropriate strategy for providing the rule of law in the field of government regulations and review them. This article argues that the word "law" in terms such as "the executive regulations of principle laws" and "providing of execution of laws" and the last sentence of the principle 138 of Constitution means ordinary laws, but this word in terms "spirit of law" and "within the laws" means both the constitutional and ordinary laws.

The use of information technology in the banks has caused the emergence of new services. Those services delivered by the use of computer equipment have created some new values. These values are generally technical and professional. The violation of these values that is against the banking data and systems, has been anticipated in computer crimes and e-commerce laws. Since there is no independent criminalization in the banking platform (electronic and virtual), it is necessary to adapt the modern banking network components and technical equipment to criminal law concepts of computer field. Thus, it is necessary to identify material behavior for violation of technical values in modern banking. One of these tools is the computer authentication method or from legally aspect is the electronic signature that allocated the main body of modern banking crimes to itself. Accordingly, this article intends to identify the function of electronic signature in bank portals such as ATM. Then, in the light of identifiying described signature function,the cyber substantive of differential distinctive strategies of criminal law could be recognized. In addition, by this way, the legal gaps and specific criminalized behaviors in the field of modern banking will be separated from other cybercrimes; therefore, punishments will be identified and some suggestions for formulating a penal system of the crime against electronic signature in modern banking will be provided. It seems that the use of a consequentialist lenient approach is more efficient than other sentencing systems.

In this article, we investigate the evolutionary impact of family in the formation of theories on the modern state. A changing institution can affect other social institutions. "family" institution can affect law, and the main question addressed by this article is this problem. This article seeks to answer this question: what significant relationship is there between changes in "family" institution and the rule of law in Iran? Is the evolution of family effective in transition to the rule of law?
Design/Methodology/Approach: By examining changes undergone by family structures and their impact on the infrastructure of the state, we discuss the rule of law in contemporary Iran.
Findings: The findings of this study imply that the evolution of "family" institution discourses leads to the formation of "individuality" and value pluralism, and deepens the "democratic culture" and "social democracy" among Iranians, because the authors believe that "democracy" is not static, but is an ongoing process. State and "family" institution have dynamic interaction with each other.
Originality/Value: This article is one of the first attempts to understand the role of "family" change in the rule of law in contemporary Iran, because it examines how the three steps of understanding, creating and delivering values provocated by changing social trends are to be entrenched in citizens’ mindset. These changes have affected family in contemporary Iran.

Imprisonment is one the most common punishment in Iranian criminal policy, but it has numerous defects. It doesn’t realize training aims, so legislature and judicial authorities have to limit the use of this punishment as much as possible. The aim of this article is to review the effects of judicial factors including legislative and executive ones that cause increase in the size of criminal population in prisons and to present approaches to tackle this problem. Tendency to punishment and imprisonment in all members of society like individuals and families has made judges interested in imprisonment as the best way for crime prevention. This article analyzes the lack of ingrained measures for imprisonment and qualified judges to make use of them, the absence of criminological trainings and executive requirements of prison substitution and unwillingness of judicial authorities to accept the effectiveness of substitutes for imprisonment and etc. Iranian criminal policy faces fundamental difficulties in its judicial, legislative and executive aspects. In judicial sphere, the criteria of penalty definition have not been explained in an appropriate manner for judges. Providing criminological trainings for judges to change their attitude is the most necessary approach to prevent a surge in the prison population.

The need for a new international court to attend the issues of nuclear weapons nonproliferation and disarmament has been proven by the occurrence of several international incidents. In April 2010 Nuclear Security Summit, establishing an international nuclear criminal court as a fundamental step in promoting nuclear security and countering nuclear terrorist acts was proposed. Recently, the International Nuclear Nonproliferation and Disarmament Commission for establishing a new international court called for assessing international contribution in nuclear nonproliferation and disarmament. The structure of International Law System lacks any comprehensive documents in terms of nuclear security, nuclear criminology, criminal prosecution and illegal nuclear trade and traffic. Therefore, establishing an International Nuclear Criminal Court could both revise and promote the nuclear nonproliferation system and provide opportunities to resolve the security flaws in international nuclear law.

Since the Iranian legal system is under the influence of the French legal system and partly relies on the letter of the law, the judge, in the first place, is committed to comply with the letter of the law. The ambiguity of terms related to judicial review poses serious challenges for the General Board of the Court of Juctice. The question is: What is the meaning of the terms stipulated in the article 12 and what is the criterion for distinguishing them from each other? It has been hypothesized that the discovery of instances of unlawfulness or "contrary to law" and establishing a criterion for distinguishing the terms stipulated in laws reside in legal definition or justified interpretation. The articleˊs findings obtained by using library resources and analytical methods, show that the phrase "contrary to law" has a general sense and the other terms mentioned in article 12 are, in fact, the instances of it. Therefore, such legislation should contain the term "violation of the law" to prevent confusion. Second, if the court is seeking to achieve the objective rights of the people enshrined in the article 173 of the Constitution, "violation of the law" leads to the control of state regulations as to their compatibility with the international treaties in the framework of the Article 9 of the Civil Code. This special capacity for resorting to human rights treaties is an important issue. The reform in the framework of the judicial review of administrative act could be made on the basis of administrative law as existed in England and France. To achieve these objectives the law can be modified by providing legal definitions of terms stipulated in the interpretation of Article 12 and also an interpretation should be provided by the Parliament or a reasonable interpretation of the law by the General Board using all available capacities.

Nowadays, the International Community of States is regarded as the cornerstone of international relations studies. In such a community, the nature of international entities and mechanisms and the foundations for the commitment of States to international law are defined from a different perspective. The notion of International Community of States has had various reflections in the standpoint of legal schools and theories. In this respect, the so-called American New Haven School has illustrated the concepts of power, international law and the International Community of States differently by defining law as the outcome of a process in which the superpowers confront each other. The New Haven School is mostly motivated by the political realism theory, but with a new fancy garment that eventually results in the protection of American national interest. In this article, the proposed concepts in the New Haven School are first described and analyzed, and subsequently they are criticized. It is also discussed in this article that the application of New Haven School in international relations brings injustice to the rule-making process among States in the International Community.

According to the basic rules of Islamic criminal law, punishments are classified in to "had" (prescribed punishment fixed in law) and ta’zir (discretionary punishment left to the decision of the judge). In traditional view, it is believed that in addition to the fact that these two types of punishments are stemming from two different types of crimes, the characteristics and precepts of these two kinds of punishments are very different. The recurrence of the differences between "had" and "ta’zir" in jurisprudential books through out the centuries has made these differences determined and fixed and increased problematically and unjustifiably the gap between "had" and "ta’zir". This article reviews this classification and differences between "had" and "ta’zir" as recognized in traditional jurisprudential view. According to the findings of the article, the historical analysis of the origins of these differences may lead us to a new understanding of these differences. The differences mentioned in the orthodox view are often related to the characteristics and rules of all kinds of punishments. A literal and limited approach to religious texts related to the issue and a particular understanding of the word "had" has yielded to the idea that these rules are specific to "had". According to this article, these rational principles have been recognized more or less in almost all rational criminal law systems and therefore, it is not justified to be considered as special characteristics and principles of "had".

The doctrine of separation of state governance action and outsourcing had a significant impact on the Iranian legal system, particularly in the areas of privatization and economic law. This study, by using a descriptive- analytical, method, tries to investigate the relationship between some set of rules and regulations on privatization deals, especially the Article 44 of IRI Constitution, the Implementation Act of Article 44 and Iran’s Fourth and Fifth Economic Development Plans. According to different investigations, structural and functional changes and legal reforms in public and non-governmental sectors for economic reconstruction, and determination of the terms and scope of related activities in these sectors, through privatization, were applied under the influence of these theories. A theoretical overview of various criteria employed in various rules for the purpose of the separation of governmental actions, the definition of these actions in the Iran’s Economic Development Plan, and the legislator’s emphasis on the theory in the process of determining and scoping transferable actions and duties to the private sector, show that this theory, besides its considerable fundamental effect on the roles and functions of government in economy, in practice, has failed to achieve the objectives of the Article 44 of IRI Constitution in order to make functional changes in the private sector and turning it into the main and centered hub of economical activities.

The legislature is responsible for three important functions such as legislation, interpretation and enforcement of normal laws and supervision over the implementation of law as one of the dominant forces in the country. The legislature suffers from some weaknesses and shortcomings, although it has gained some achievements and enjoys a lot of strengths in performing its missions. This article tries to find the ways to empower this branch by removing all barriers facing the legislature. In this regard, we will respond to the raised questions by using information collection methods including library, descriptive and analytical research. First, the author discusses the nature, structure and functions of the legislature.Then, he examines the shortcomings of legislative techniques and the weaknesses existing in organizing and monitoring the procedures of the Parliament in order to improve operational the efficiency of the Islamic Consultative Assembly the Parliament of Islamic Republic of Iran. The sources of shortcomings and weaknesses of legislature can be classified into internal factors (i.e. within the Parliament) and external factors which constitute the most important conclusion of this study, in addition to some technical and minor amendments, the comprehensive coordination of political, legal, cultural and administrative structures should also be considered to promote and strengthen the legislative system of the country.

According to the Constitution, in Iran, the legislator is obliged to legislate based on Shiite jurisprudence. Referring to jurisprudence implies that there are diverse opinions on one single issue and the legislator faces the question that out of all these opinions which one should be chosen to comply with law. In response to the question, so far various opinions have been expressed and so many of them have been criticized. The answer to this question is the adherence of the legislator to high-level principles. The rules like "precaution in bloodshed", "the rule based on the limits of negligence", "life preservation", "non-aggression in bloodshed", "elimination of Hodood", "preferring amnesty instead of doing mistake in punishment", "preferring impunity" and "preferring the principles of ease and conciliation" are the cases has been mentioned in Shiite jurisprudence indicating the importance of the right to life in Islamic paradigm. On the other hand, there are some concepts supposing that by assembling some minor principles, we can attain general provisions of such concepts. We can mention Bagher Sadr′s theory elaborated in his book titled "Eghtesadona" and the psychological theory of "Gestalt". If we consider principles and rules in the way "Bagher Sadr" and "Gestalt" look on them, we will realize that all of them show the importance of life and right to living. Now, if we intend to answer the question regarding the abovementioned statements that what legal decisions should be transformed into law, we should say that in cases in which there is no consensus among the juridical comments, our decision must be based on the rejection of capital punishment.

The crimes against capital market break economic values and norms. These crimes act against just competition and the transparency of information and undermine trust among capital market actors. Therefore, on the one hand, criminal policy makers envisage criminalization and penalization and on the other hand, they utilize prevention measures.The prevention policy aims at reducing and eradicating criminality factors.The legislator has identified preventive duties for securities and exchange organization in the framework of the Islamic Republic of Iran’s market securities act which ratified in 1384. These duties can effect economic crimes and establish security in capital market. In this article, the preventive duties of securities and exchange organization are studied.

Penological studies show that imprisonment has bad effects on the offender, his family and the society as a whole, and its benefits are less than its costs. Therefore, nowadays, public policy makers pay attention to the policy of reducing prison population as an example of depenalization. The study of this policy in Iranian legislative system at the different levels (ranging from high-level documents to ordinary laws), the review of changes in this regard, laws passed in compliance or in contrast with this policy and the answer to this question that how much existing laws are in accordance with this policy constitute the subjects of this article. The author examines the above-mentioned documents and concludes that the policy of reducing prison population that has been emphasized in high- level documents is not fully implemented in the legislation layer yet and despite the fact that some institutions are established especially in the framework of the Islamic Penal Code, some provisions hinder successful implementation of that policy or are totally against it. Finally, having identified legal gaps and defects, the author presents some solutions.