فصلنامه مطالعات حقوق خصوصی
سال سی و نهم شماره 1 (بهار 1388)

The main question is that could a jurist refer to" the justice principle", especially in case of muteness, incompletion, orconflict on the part of the existing laws. In this writing which seeks to answerthe question, after a brief allusion to the dignity and value of justice, and of its principle, and then a excursus on "the principle's reasons", we have discussed that in the Islamic jurisprudence, law, political philosophy, justice is "criterion," a "ground, "and a "goal." Then, we have answered a second question: "have jurists and lawyers, in their juridical ideas, ever addressed the very topic of "justice principle" or other similar topics as: "pure justice," "fairness," "transcendent justice," "common justice," "common – sense justice," "justice and wisdom," "the Shariah's objectives," "the Shariah - maker's goals," and so on; and have they referred to the principle in their "inference and ejteb?d"? In a brief search, we have found around eighty fetuas, or legal opinions, in which the jurist, or the lawyer, has proceeded to issue his fetua, or his opinion, on the basis of the justice principle. These fetuas, and opinions, can be highly important in demonstrating "justice" as a legal and juridical principle.

Although transactions are complicated and of specific variety nowadays, concern of both parties of transactions concerning probability of deservingness of each considerations is so important that all legal schools have thought about some solutions for removing that concern and creating peace of mind for both parties. Islamic legal law has not ignored that important issue too, and has offered liability of darak for solving such a problem. In addition to clarifying the concept of liability of darak, the present research attempts to nullify the opinion which claims its synonymy with that of ‘uhda through correct explanation of the essentials and conditions of its actualization, and to remove its exclusiveness to the contract of sale through expanding it to other exchanging contracts.

In the past and before granting the inventors and owners of intellectual property rights special exclusive rights and privileges under the patent laws, the protection of intellectual property rights was possible only through a legal regime which could help to keep the know how and innovation secret. This regime, in which contractual terms are often used to keep the innovation secret, is called trade secret. However, after the introduction of modern patent system under which a disclosed trade secrete could be protected, some owners of intellectual property rights kept relying on the old regime of trade secrets. They believed that trade secret regime is more efficient to protect their rights than a legal regime based on patent laws. These developments led to the recognition of trade secret regime as an independent mechanism for protection of the intellectual property rights based on fair competition and professional and commercial ethics alongside the patent regime. The inventors, therefore, have an option to opt for either of the regimes, i.e. patent or trade secret regimes.

Currently, a number of international courts and tribunals including International Court of Justice, International Criminal Court, International Tribunal for the Law of the Sea, international arbitral tribunals such as Permanent Court of Arbitration, and national and regional courts, are dealing with environmental disputes. However, in a fair and accurate judgment, giving the various limitations these fora are facing such as the lack of required professional knowledge and the length of proceedings, they are unable to enforce the norms effectively. Nor can they resolve international environmental disputes in a prompt and well-organized manner. On the other hand, the right to a safe and clean environment is of fundamental human rights, possessing a high degree of value in human life and civilization. The international community is in need of establishing an independent judicial body to play a major role in the process of codification of the norms and settlement of environmental disputes through interpretation of environmental laws.

The taxpayers’ rights must be considered the most important Portion of tax laws by tax organization subject to all broad Powers and authorities; the thing that has been widely noted in our modern World taking the human and citizenship rights into special consideration by taxation system of developed countries. They also applied Various methods to illustrate and execute them in their tax Laws. In the Iranian tax law as nothing of these factors Were illustrated, there included some disintegrated and discursive articles that deserve due consideration. These rights that must be abserved by tax collecting agents and authorities while they begin to diagnose and receive taxes, facing and treating with taxpayers, enjoy different dimensions and features. All actions to consider and clarify the facts of this Law significance Will allow us to realize better and apply them more accurately in the Iranian tax laws and help progress the citizenship rights.

Recently, a significant change has occurred in the lifting aspect of the Security Council sanctions, namely, the inclusion of a fixed term in sanctions regimes. We first examine the emergence of the idea of a fixed term for sanctions regimes. With the disappearance of the situation justifying the imposition of sanctions, there is no reason to maintain them. Yet, each permanent member may oppose the lifting of sanctions and extend them indefinitely.The experience acquired, particularly from the sanctions imposed against Iraq has, since 2000, led the Security Council to introduce a fixed term in its sanctions regimes. Then we will examine the contribution of the time limit to the sanctions policy of the Security Council and the risk it may raise to the effectiveness of sanctions. Introducing a validity term in sanctions regimes is a key element and a guarantee for improvement in the suspension and lifting aspects of sanctions. Furthermore, the time limit can ensure the viability of the sanctions mechanism and will also contribute to their legality and effectiveness. Nevertheless, this policy change is not absolute.

When the parties enter into a contract it is valid and binds the parties: that meams one of them cannot terminate the contract without an agreement; In this article we try to prove the base of this principle: In Islamic Law if the evidence of the sources are not sufficient we can accompany the effects of the contract if it is unconditional and absolute In Islamic Law it is known as ESTESHAAB.

Hearsay in Common Law, is a statement made out-of-court and offered in court as evidence to prove the truth of the assertion made in the statement. The hearsay rule states that hearsay is not admissible unless provided by exceptions in the Rules of Evidence or courts’ precedents. The test for determining hearsay is whether a statement was made out of court and is being offered in order to prove what is being asserted in the statement. The aim of hearsay rule is to protect the jury from hearing unreliable out of court statements as evidence. However, exceptions have developed over the years, taking into account the circumstances surrounding such statements. But, resulting from developments of last decade of 20th century, UK parliament has abolished the hearsay rule and nowadays hearsays could be admitted by satisfying the other evidentiary rules.

"Membership in a Particular Social Group" is one of the five protected reasons for obtaining refugee status in the 1951 UN Convention relating to the Status of Refugees and the most confusing one. To clarify this ambiguity and facilitate the recognition of Particular Social Group, scholars have sought to provide four main criteria which are persecution, ejusdem generic, the principle of non-discrimination and the violations of human rights. A brief examination of the national jurisprudence of the refugee host states proves that on the one side, the role of the first criterion, persecution, has received only a limited support and on the other side none of the other criteria has been accepted as the main and only way to identify a Particular Social Group. Rather, it seems that the combination of the three remained factors has led national courts to refer to protected characteristics and social cognizability as the constituent elements of a Particular Social Group.

One of the crimes mentioned in the Islamic jurisprudence and Iranian Statute laws as a crime against public security and security of the roads as well as terrifying the public is the crime of in Fringement of public security and corruption on the earth. The present paper is an attempt to offer a comprehensive definition of “waging a war and corruption on the earth” from the jurisprudential and legal points of view. Also the present study will critically study the definition given for in Fringement of public security and corruption on the earth in the Islamic Criminal Law and in the proposed bill of the said law.

In articles of 196,768 and 769, the Iranian Civil Code, under influence of the French law (art.1121 civ. code) and Imamieh's jurisprudence, without any explanation to the legal nature of the contract for the benefit of third party, has briefly allowed the contracting parties to create an obligation for the benefit of third party. This brevity caused an ambiguity in explaining of the relation between contracting parties and third party. To put an end to the ambiguity, legal experts have tried to make clear this institution. In spite of this trying, they have not yet reached a full agreement. This article which criticizing and examining these thories concludes that the right of third party without interfering to his intention and only with reliance to the partie's intention which the legislator has approved it to reply the social needs, arised out from the contract and after its creation such nas any other legal rigths will be protected by law and immune from any violation.

The word “Hukum” literally and linguistically means judgement. In the Holy Qur’?n it also implies the same meaning. It is used in the jurisprudent terminology to mean verdict or ruling and may also imply other special meanings. When it is used unconditionally, it usually implies an Islamic practical law which is divided into different parts and sections. The most important of which are“Taklif” i.e. religious obligations, civil laws and laws which contain many related different branches and sections such as Governmental laws and the like. Each of these has special impact in its meaning. Stages of law have been fully explained in this research starting from the first stage (i.e.enacting stage) to the last stage(i.e. executing stage). Finally we have also explained the views of the Sunni scholars with regards to the meaning of “Hukum” as studied under its different branches and sub-divisions.

The necessity of performance of justice is obvious. Although by law, everyone can bring an action to the courts, but sometimes a case is very urgent and for this reason the formalities of the civil procedural rules become an obstacle in the way of justice. This is a strong reason for the importance of Speedy Trail. For this reason, considering the Speedy Trail is very important and necessary. While it has a main role in maintaining the rights of the plaintiff, it is on the other hand a real threat to the rights of the defendant. The aim of this article is, to consider and criticizing the "Freezing Order" in England's legal system, which is the only sample of the Speedy Trail in that system; specially because of its strong influences on the EU and the Commonwealth countries.

Transfering of commercial bill is possible by endorsement, which is a formal manner passing the document contains regardless to its cause. This commercial typs of action has been given rise to an inflexible rule called as (Inattention to adducements) and also has been interpreted as widely as possible during 70 years ago. But in the recent years a court in its decision has distinguished between essential adducements of cheque and those of in transferring hands and in spite of our judicial tradition and precedence has decided to restoration of waste of beared cheque. Therefore such a judgement as a new point of view will be deserved to be considered and interpreted which this essay effort is to put it forword.