فصلنامه مطالعات حقوقی
سال یکم شماره 3 (زمستان 1388)

Punishment is a behavior, which is in essence the same as crime, since it imposes constraints on people's liberty and/or breaches their rights. Accordingly, it is necessary to justify the reasons for exercising this behavior which limits people’s liberty and/or violates their rights. Since punishment versus crime is one of the bases of criminal law, every school of thought, which has expressed views in the field of criminal law, has tried to justify the reasons for punishment. These schools of thought have mainly justified the reasons for punishment based on the purposes of considering it. Some have been of the view that the purposes of punishment are reflected in its future effects, while others believe that they are reflected in its ability to compensate. Although many of viewpoints are expressed in the context of these two perspectives, they are distinguished from each other because of their own special characteristics. Accordingly, this paper attempts to elaborate these viewpoints.

There is an esseutial principle in the international criminal law called the principle of universal criminal Jurisdiction. According to this principle, national courts of states can deal with a crime which has the following characteristics: (a) it may be a crime which has been committed in the territory of a state, (b) it may be a crime regarding which the accused and the victim are not the nationals of a state, (c) it may be a crime which has no relation with the interests of a state. The concept of this principle has been evolved and developed since its creation; as follows: (a) First, states could only deal with the crime of piracy, (b) second, states had an option of dealing with international crimes but today they are obliged to deal with these crimes Although, legal systems have had different perspectives on the meaning and application of this principle, all of these systems have recognised this principle and there are various systems of application of it based on national legislations. Accordingly, domestic (internal) courts exercise their jurisdiction on the basises international customs and treaties and their national laws. This paper attempts to examine the origin and the nature of this principle based on the above – mentioned points.

Prescription, as one of the causes for waiving a general criminal action, is usually divided into the three following types: (a) Prescription of a suit, (b) Prescription of prosecution, and (c) Prescription of enforcement of a judgment. Prescription was explicitly mentioned in the Iranian laws before the 1979 revolution and the existence of its various types could be deduced from the criminal penal code and other laws. After the Islamic Revolution, the concept of prescription was challenged by the religious principles and was finally included in Articles 173 and 174 of the Act on the Criminal Procedural Law of Public and Revolution Courts with regard to some crimes. In addition to the inclusion of the prescription of a suit, Article 173 of the Act has also referred to a prescription which has no similarity with the prescription of prosecution. It should also be added that such prescription is in conflict with the philosophy of acceptance of the prescription and it raises some objections if it is viewed from the perspective of criminology. Due to the non-conventional understanding of the legislator and some of judges of the prescription of prosecution, this paper attempts to evaluate and analyse this type of prescription with a view to the philosophy of acceptance of prescription, administration of justice, and criminology.

Defensive rights of defendant as one of fair trial components is collections of facilities that defendant use for receiving all rights and benefits. One of clear aspects of defendant’s defensive rights as challengeable issues of modern criminal law, is his/her silence right in all processes of proceedings; prosecution and giving accusation to carry verdict. Observance of silence right risk profits of society in ease detecting crime and prosecuting offender in one side, inobservance decrease vested rights of defendant in fair trial process on other side. Volitional silence right of defendant who know his/her right to be silent is clear principle, but lawful force of prosecuting, inquiring and hearing officials by seeing of human right’s doctrine and new recitations of acquittal principle’s components by declaring this right to defendant, internal legislator don’t observe. Question is what is obligation, if defendant doesn’t know his/her silence right in contact of officials? In this paper, try to by examining criminal procedure laws and international deeds show necessity or unnecessary of officials and limitations in declaring to defendant to be silent about accusation..

This general rule that nobody should enrich without a justified cause, is a moral rule to form the spirit of many legal rules. But in the legal systems at the world, there is no similar answer to the question whether the unjust enrichment can be recognized as an independent source of obligation and bind the person who has enriched unjustifiably to return it: Whereas some of civil codes as German Civil Code and Swiss Obligations Code Recognize this rule as an independent source of obligation, French Civil Code is silent about recognition of it. Jurisprudence of France, however, after a period of doubt, with attention to social necessities and following the legal doctrine which was influenced by Roman law itself, finally recognized it as an independent source among other obligation sources, and cleared its conditions and effects. Iranian Civil Code which is influenced by French Civil Code in the section of “Obligations incurred without a contract”, also is silent about unjust enrichment as an independent source of obligation and has only contented with some examples about it. Therefore, in spite of causes of automatic responsibility in the Islamic Jurisprudence and Iranian law, there is a substantial question: Is it basically necessary to constitute a new rule to prevent unjust enrichment? It could be answered that although unjust enrichment is not been recognized in the present Iranian legal system as an independent source of obligation, the causes of automatic responsibility can not contain all of various examples of unjust enrichment either. Therefore, with attention to the basis of internal law and especially relying on the prohibition of the enrichment by void causes in the Islamic Jurisprudence, the authors believe that it is possible to arrange a new theory preventing unjust enrichment, based conditions and effects on this theory.

Articles 4 and 170 of the Constitution of the Islamic Republic of Iran has determined two authorities to ensure the compliance of administrative regulations with religious principles. Notwithstanding, neither the Constitution nor the statute law has specified the precise role of each of these two authorities in this regard. Considering the important position of these authorities, the role of each of them can not be underestimated. However, it seems that position and role of the Administrative Court of Justice is more ambiguous. In this article, the author considers three aspects of religious, administrative and judicial in a litigation to examine the compliance of administrative regulations with the religious principles. Then the paper, considering the existing realities, studies the potential role of the Court in the light of the new law concerning the Court, particularly because the new law has provided innovations to deal with such litigations.

It is useful, but not necessary, to have preliminary negotiations before making a contract. In day to day and ordinary transactions, both parties to a contract reach an agreement in the least possible time and make a contract soon after an offer is accepted. However, it is a must to hold preliminary negotiations in the large scale transactions which are done by merchants. Sometimes in such transactions the period before the conclusion of contract lasts for a long time and there is a possibility that each party may spend some expenses before finalizing the contract because that party is hopeful about the conclusion of the contract. There may be some risks for each party in the period before the conclusion of contract. These risks require that each party shares some of the possible loss. If the preliminary negotiations do not result in making a contract due to unreasonable behavior of one of the parties, the loss suffered by the other party should be compensated by that party. This responsibility for compensation is called pre-contractual liability. The Theory of Fault in the Preliminary Negotiations is only an independent theory which has been introduced for the justification of this liability. According to this theory, if each party makes any obstacle in making the contract contrary to the principle of good faith and through a blameworthy behavior, or if each party acts in a way to cause the invalidity of contract in the future, that party should compensate the loss suffered by the other party who has been hopeful of concluding the contract. Countries whose legal systems are based on written laws have had positive views about this theory but countries with common law systems have not adhered to it. In Iran this theory has not been known, mainly due to the fact that the principle of good faith, which plays a key role in the theory, has not been adopted in the Iranian legal system.