فصلنامه مطالعات حقوقی
سال نهم شماره 3 (پاییز 1396)

Theft of property is a criminal offense with specific definition, particular conditions and special religious punishment (hand-amputation limit). There are disagreements about the realization of theft; including the endowment of the stolen property. Some do not consider specificity and subjectivism for it, rather assume theft of public endowment under the general category of theft and its sentence. However, others choose a detailed view and do not consider the category of theft equivalent to the theft of public endowments, and thus, in theft of public endowments, the religious punishment is not enforceable. The main reason that the opponents disagree with implementing religious punishment for public endowment is that they consider endowment as non-possessive and that God is the possessor of public endowments. By critical examination of the evidence of this notion, proving possessiveness of the endowment( Waqf) and ownership of the endowment beneficiaries in public endowments, and similarly, by referring to other reasons and the lack of distinction between public and private endowment(Waqf), the implementation of limits for all stolen endowments is considered to be more admissible.

Theory of arbitration advocacy refers to the influence of the legal actions of arbitration representative and attributing the legal implications of those actions to the principal. However, there are conflicting points of view with regards to the territory, conditions and the principals of this theory in Islamic jurisprudence, Iranian law and laws of some European countries. Three viewpoints are provided with regard to this theory: Fault of the client, the no harm principle and preserving the rights of the third-party. It seems that among those three viewpoints, the latter is more suited to the Iranian law; although in UK law this theory is analysed based on the doctrine of Staple and in French law, it is analysed based on third-party rights. In Iranian law, the theory of arbitration representation has a limited sphere and cannot be extended to a great number of cases with the aid of comparison. However; its implementation in the sphere of the unauthorised transactions has much justification.

Today, with the production of technical and complex goods, due to the defects of science and their unknown defects, Lots of damages and sometimes irreparable damage to the community due to the inadequacy of contractual relations, it cannot be assumed on the basis of the principles and rules of law in these cases. Accordingly, in most legal systems of the world, the defect of science is one of the factors responsible for eliminating responsibility that accepting this kind of defense and only leaving the losses to the owners of new goods and services, who has a lot of financial means to defend themselves has caused the loss of the rights of the sufferers therefore, in this research, we tried to refer to the rich Islamic jurisprudence and with a new re-reading of jurisprudential rules such as the rules of pride, richness and misery, and ... the appropriate remedy is to compensate for damage, and the new science and technology owners do not loss motivation to continue their work.

The two synonymous terms of "commitment and obligation", in Shiah’s jurisprudence and civil law have been used as infinitive and gerund forms. As with the gerund form, it means one's legal duty to perform or refrain from performing an act, while in infinitive form, it means, to be committed or to take a responsibility. In this sense if the subject is an assertive and subjective concept" it forms the concept of the contract. In this sense, the commitment is the reason of contract, and not its effect, and has nothing to do with the conventional definition of obligation in western law, which means "legal relationship between two parties". However, a group of lawyers, regardless the meaning of this term in Islamic jurisprudence, have considered the typical definition of obligation in western law as its primary concept. They have also regarded the definition of some legal concept, such as contract, similar to their foreign law, which has led to a corrupted sequence.

Assignment of Arbitration Agreement is one of the unresolved issues in the area of arbitration law. Condition of the transfer contract is required the consent of the other party. Since the arbitration agreement is a contract, the transfer of which is subject to obtaining the consent of the other side of the original contract. In addition, because the arbitration is subject to the agreement of the parties and has a specific nature, Transferee only if the accepts arbitration is bounded to it. The other party's consent to the transfer of contract is assumption that he accepts the arbitration agreement. But obtaining the consent of the transferee to accept arbitration is slightly difficult. However, if the parties to the original contract, in arbitration, taking into account the character of their opponent predicts, the transfer of the agreement is prohibited. Special nature of arbitration has caused legislator held in article 481 of civil procedure code in the case of death or incapacity that it is void and not assignable.

By regarding inefficiency of specially short time imprisonment in prisoners rehabilitation, at first access some of government revenue Act approved 1373 and then imprisonment substitution has been foresighted in Islamic criminal law approved 1392, but it does not mean to delete short time imprisonment from Iranian Penal Code because with according to Islamic criminal law in section 67 and second part of 68, by regard to meaning "can ",the judge has authority at issuing imprisonment less than 91 days or to apply imprisonment substitution, in this case, it is binding to stabilized condition section 64 Islamic criminal law as like pardon by the complainant, by this regarding the application of judgement of surface unitary of Iranian supreme court NO. 746 issued 1394 in the case of 68 Islamic Penal Code is criticized. The excluding the mentioned exceptions, Judge is bound to issue the substitution exchanging imprisonment in willfully crimes that it has punishment less than 6 month imprisonment at law or unwilling crimes that the legal punishment has less than 2 years imprisonment without it is necessary to stabilize condition of section 64 Islamic criminal law that it leads on abrogation in clause of 1and 2 section 3 of Receipt Code.

The invasion of Iraq in 2003, has left various social and human consequences, including destruction and looting the Iraq cultural heritage. This article seeks to answer the question of whether from the perspective of international criminal law the US forces violated international rules in this area. Since in accordance with the international regulations, the occupying power is responsible for protecting cultural heritage of the occupied country, and many documents which indicate the direct involvement of the US troops and in destroying and looting the cultural heritage in Mesopotamia, we can come to this conclusion that Although the United States of America Joined to the 1954 Hague Convention relating to the protection of cultural heritage on 12 March 2009, Because international rules relating to the protection of cultural heritage is considered part of customary international law, US forces and officials in America are responsible for destruction and looting of Iraq's cultural heritage during the occupation of the country and should be held accountable and go to trial.

In process of issuance and transfer of cheque, the signature of drawer or endorser may be forged. Comparative Study shows that the attitude of legal systems to this issue and their solutions with respect to different legal problems that will be arisen between banks, holder, drawer and secondary parties of the Cheque ,to some extent, are different.
In all legal systems, where it is proved that a signature of person who present as a drawer is forged, it causes to release drawer from responsibility. But regarding to the basis of responsibility of secondary parties, there are disagreements. In hypothesis of forged endorsement, the attitude of common law and civil law is striking different in respect to the cheque ownership and priority of legal protection from the "true owner" and " holder with goodwill". This matter causes some complicated legal problems in relationships between parties of a commercial document. We study these topics in those legal systems in a comparative way.

Minority is a controversial term in international law. Any ethnic group meeting the characteristics of a minority group is qualified to be called an Ethnic Minority and accordingly falls under the protection of IMRL. Traditionally, Iran has been the habitat of distinguished ethnic groups, but compatibility of the international legal concept of "the minority and non-dominant ethnic groups" on Iranian ethnic groups in I.R.I. legal system needs to be investigated. The question ,to answer which this article is written, is that according to international law criteria and regulations whether is there any ethnic minority group in Iran? The authors believe that, in accordance with international jurisprudence and doctrine and on the basis of population and political-social-cultural structure and ethnic design and legal system of I.R.I., none of the ethnic groups in Iran could be called an ethnic minority in its particular sense.

The public services management Act, has recognized various types of public employment in executive bodies. According to foregoing law, public employees are individuals that employed in agencies based on administrative authority's decision or contract. But a different sort of employment that has not indicate in the law is a status that individuals as public volunteers called by administrative authorities or voluntarily serve in public services or public order field, in particular conditions. However, the main subject of this study is analyzing and examining the legal status of public volunteers including the wage situation and the civil liability arose from volunteer's acts.