مقالات رزومه دکتر صادق شریعتی نسب

In the "Medical Council of Islamic Republic of Iran Act" 2004, there are a Quasi-Judicial tribunal (Guild Court) for medical professional and disciplinary violations, including three-stages trial: the primary disciplinary board, appeals board, and then the supreme board. Although Article 40 of this Act, declared that Supreme Board’s decisions are final judgment, the supplementary note of article 40 in 2005 declares that such final decisions are "Appealable in the Court of Appeals". In the interpretation of this note, a difference was occurred amongst some appeal courts; based on whether the jurisdiction of the appeals court in proceedings, is only "supervisory procedural on law" or is "substantive" (=on the merits). Unification of Judgments Decision number 797 from the Supreme Court’s General Board, held that the word of "Appealable" in the note, has used in its ordinary meaning, and therefore is subjected to general rules in Procedure Act. As a result, the court of appeals considered inherit jurisdiction to substantive proceedings. But considering that: 1. Quasi-Judicial nature of the medical council's disciplinary boards, into the court of appeals status and position; 2. The disciplinary board's specialized jurisdiction to guild matters; 3. The terminological concept of “Appeal” in reviewing non-final orders; 4. Judicial custom and principles of procedure predicates that proceedings in "Third Tribunal" generally is restricted to procedural supervision "on law"; 5. Futility in four-stage substantive trial in guild matters; 6. And finally, justifiability of procedural supervision on-law in the appeals court; It seems that attributing regulatory and supervisory position to court of appeals is more consistent with the principles of procedure and judicial customs, and practical considerations. This article intends to justifying the latter interpretation based on the descriptive and analytical methods and using documentary sources. Main arguments are based on deduction and induction, and referring to principles of procedure.

For the first time, by the single article (Act) of the "Therapeutic Abortion Act" approved in 2005, abortion was conditionally prescribed due to "fetal disease which causes Hardship to the mother, due to fetal retardation or deformation". With the approval of the "Family and Youth of the Population's Protection Act" in 2021 and the abrogation of that single article, Hardship-based abortion, has been released from merely fetal disease or defect, and generally has been expanded to "severe unbearable Hardship for the mother". This change is considered a big leap in Iran's legislation and needs to be analyzed and investigated. The purpose of this article is to analyze and explain the conditions, criteria, effects, and efficiency of Hardship-based abortion in the new law. Its method is Descriptive and Analytical. It seems that: 1. Limiting abortion to fetal disease or defects is not logically justified. 2. In some cases, the social and psychological (not physical) Hardship caused by pregnancy, is much more severe and impactful than the fetal diseases. 3. Every dissatisfaction and excuse cannot be considered as a case for a mother's Hardship; rather, the definition, criteria, and examples for Hardship, must be carefully explained. 4. The special procedure in the new Act, guarantees a thorough and comprehensive proceeding to each case.

A review of various legal rules comprising the law of obligations in the Iranian legal system demonstrates that this system recognizes a special type of obligations with the unusual property that its burden is neither on one specific person (individual responsibility), nor on several persons simultaneously (joint responsibility), but, in two or more subsequent stages, along a specified priority, on different persons, so that in each stage, the creditor's claim is due to be paid from a different person’s property. The creditor could pass to the next stage only when in the previous, there has been found no, or insufficient, assets. The obligations of involved persons, in other words, cover each other alternatively. The type of obligation thus described has not been viewed as a genuine, independent one in the Iranian legal system so far. Rather, it is considered as a special and exceptional phenomenon, or even as an irregularity. Therefore, the instances fitting in this type have not been collected and studied together, its constituting elements have not been specifically studied, and the rules governing it have not been formulated. This article is intended to study this type of responsibility as a genuine and independent type among obligations and to examine its instances, elements and the rules governing it.The method of this research is descriptive and analytical. Accordingly, in the beginning, the article will descriptively review various laws that contain, or constitute an application of, the sequential responsibility, either explicitly or implicitly. Then, in the analytical phase, an attempt will be made to derive the general principles, elements and rules governing the provisions embodied in that particular body of law. In this way, the most important interpretive instrument will be the  induction from various legal provisions. The library research method will also be employed.The hypothesis of this research is that the sequential responsibility is not exceptional or irregular, but a genuine, purposeful and regular type which the legislator is able to use when necessary. It is a combination of the individual and the joint responsibility, aiming to support both the debtor and the creditor at the same time. Also, it can be conceived as a form of insurance for a number of obligations, each backed by the obligation(s) of the next stage. Therefore, by coherent explanation and analysis of the rules governing this type of responsibility, the scope of its appropriate application can be suggested to the legislator and to the legal doctrine.The principal questions of this research are: 1. what are the examples of sequential responsibility in the Iranian laws? 2. What are the structural characteristics and the elements of this type and its differences with other types of responsibility? 3. What general rules governing this type could be induced and to what issues could they be applied? On the other hand, the following hypotheses will be suggested: 1. The hierarchy between the liabilities of different persons for paying alimony to relatives, as well as the sequence in paying the blood money between a) Aqila (paternal relative of the felon), b) the felon, and c) the public treasury are prime examples of this type of responsibility. Also, the sequence between a) minor's liability and b) its culpable guardian's liability, and in some cases, the liabilities of a) the company director and shareholders/members, and b) the company/legal entity should be considered as examples of this type of liability; 2. The elements of this type of responsibility are: sequentiality, single debt, and multiple properties. 3. There are general rules governing matters such as: the aim of responsibility, the relationship between liable persons, and the scope of responsibility.This article has depicted as a regular category a group of obligations that have always been viewed as sporadic or exceptional cases. The article will present them as an independent, original institution in the Iranian law, with the proposed name "sequential liability". Various instances of this type of liability will be traced through different laws and put together as a coherent category. These include: sequential liability between the invalid (the insane and the minors) and their culpable guardian (Article 7 of the Civil Liability Act), sequential responsibility between different persons for paying alimony to their relatives (Articles 1198 et seq. of the Civil Code), sequential responsibility between the director of a legal entity and the entity itself to compensate for damages caused by a crime (Article 28 of the Protection of Authors, Writers and Artists Act, legislated in 1970), sequential liability between limited liability and general partnership companies and their partners/shareholders (Articles 126, 186 and 187 of the Commercial Code), sequential liability between the company and its culpable director against third parties (Article 143 of the Amendment to the Commercial Code), and sequential responsibility between the Aqila (paternal relative of the felon),the felon, and the public treasury, to pay blood money (Articles 470, 435, 471, 474 and 475 of the Islamic Penal Code). Instead of focusing on divergences, the article will explore similarities and common elements in various cases, as is necessary in any scientific research. Common elements are: a) sequentiality, which means the sequential relation between a number of obligations based on a specified priority; b) multiple properties, meaning that sequential responsibility shifts, at each level, from one liable person’s property, to the property of the person in the next rank; c) one debt, meaning that the content of obligation is the same for all sequential ranks, bearing same qualitative and quantitative characteristics. Finally, by induction from various bodies of law, and by taking into account the purpose and the rationale behind this type of responsibility, the general rules governing it, which are applicable in similar cases or when no specific rule can be found in the texts, will be formulated as follows: first, the aim of sequential liability is to support both the creditor and the debtor, in that the creditor will have access to multiple properties to collect the debt, and the debtor will not be forced to face hardship by fulfilling the debt. Thus, this is a genuine category of responsibilities, along with the individual and the joint responsibility; second, as to the relationship between sequential debtors, since each of them is paying his own debt, he cannot, in principle, claim against those in the previous or the next rank to refund what he has paid, such as is the case for the one who pays the relative’s alimony; third, the scope of sequential responsibility, in accordance with its rationale and its premises, is that each debtor in any rank is responsible for all of the debt, and only the portion he failed to pay will be transferred to the next rank. As for the case where several debtors are in the same rank, the rule is that each will have to pay an equal share of the debt.

In Iran law often believed that legal persons have full and complete capacity (Article 588 Commerce Act). But there are some doubts about legal person’s capacity in gratuitous contracts: 1. whether legal person can understand "beneficence" means and if such a sense is imputable to legal person? 2. Is gratuitous contracts compatible with legal person’s aims and nature; especially with commercial companies? 3. What is the range of state and public institutions capacity to gratuitous contracts? 4. Is there any capacity restriction to special gratuitous contracts such as testament; endowment; and personal suretyship? By analyzing the purpose of gifts and by induction from gratuitous contracts, except to cases which human relations and motivations are more important than financial aspects (such testament), or when a contract naturally specialized for human (such suretyship), or when gratuitous contract is incompatible with the subject, aim, and philosophy of the legal person, as a general rule any beneficence contract can be signed from legal person; whether as donor or donee.

Sperm donation is used as a donor sperm to cause male azoospermia or other reasons for pregnancy of women and fertilization with women egg by IUI or IVF until it creates fetus for production of human. The fetus belongs to women and created with her eggs, but is foreign to husband and don’t have any genetic relation with him. There are many disputes in sutra of sperm donation that this approach is authorized or illegal. There are two theories in this subject. One of them lawfully and other unlawfully that each of them have their arguments in providing their opinion. After hecking comments and arguments and review and analysis of them, it seams that illegal theory have more precise legal basis and must accept the prohibition of sperm donation.

Confidentiality has long been protected in criminal law as an important ethical principle. With regard to the issue of sexually transmitted diseases، however، health care providers are faced with certain challenges. On the one hand، it is their obligation and duty to respect patient confidentiality، and on the other hand، the possibility of transmission of infection to sexual partners is a rather significant phenomenon. Therefore، health care providers have a crucial role in terms of the conflict of interests and legal duties with respect to sexually transmitted diseases. Medical mandatory reporting to state authorities accompanied by personally identifiable information of the infected person is another controversial issue in the field of confidentiality، which will be discussed in this article by studying various trends in statutes and precedents. It seems that throughout the world، there are two major trends in this respect: in some states، principles of confidentiality are observed even if the patient is infected by sexually transmitted diseases، unless it is inevitable for the safety of third parties such as sexual partners in a narrow implementation of Acts. States like Iran، France and Thailand are examples of such governments. In some countries، however، partner notification and compulsory notification by personally identifiable information of patients are mandatory for epidemiologic reasons. The United States، Australia and Ukraine are some of the countries that fall within this category. In Iranian legal system، the duty to respect confidentiality is emphasized and partner notification cannot be considered as a legal duty and therefore it is not legally permitted. Merely in emergency condition and under a narrow interpretation of law and by resort to patients informed consent، necessity and explicit law permission، breaching of confidentiality is justified.

Strict liabilities are needless of some normal liability elements. In criminal law sometimes mens rea is not necessary. Crimes including such liability are called “Strict liability crimes”. The nature of these crimes is ambiguous and even their cases are mentioned in a systematic way. Moreover a criterion is required for them and their general principles must be organized. In this essay a list of some cases of these crimes both in foreign and domestic law is offered. The author argues that the criterion must be a combination of the crime’s “stigma”, “importance”, and “criminal” or “regulatory” nature. Because of the variety of strict liability crimes their general principles must be classified. Five groups of these crimes are distinguishable: crimes based on destruction; stronger cause; refutable fault presumption (res ipsa loquitur); irrefutable fault presumption and; conduct crimes.

“Abstraction principle” means separation between two obligations in commercial instruments: underlying obligation and documentary obligation that created by drawing these documents. The main effect of this principle is that objections related to first obligation، cannot be claim in second; where there is a third party. To obtain a real and comprehensive perspective of this principle in Iranian law، we must discuss both principle and his exceptions in Acts and jurisprudence. Iranian commercial act indirectly confirmed basis of this principle. Iranian jurisprudence also undoubtedly accepted this principle and applies it between responsible and third party beneficiary of commercial instrument.

Obligation of allowance in adoption has special basis and scope. Unlike “alimony” that is based on contract (marriage), in “allowance to family members” the obligation to payment and the entitlement to receive have moral backgrounds. In adoption, the obligation has both contractual and moral basis: on the one hand, the position of adoptive parents and that of the adoptee may be the criterion of allowance (moral basis); on the other hand, adoption is subject to adoptive parents’ consent (and in effect has a contractual aspect). Therefore, any legal analysis is deemed to consider the bases of this obligation and the differences between adoption and the two former institutions (i.e. allowance to family members and alimony). This article attempts to examine these issues and at same time, justify and explain them in the light of domestic rules and principles, and in conformity with analogous structures.

Unenforceability (Inopposabilité) is a double sanction. Because this sanction combines in the same time “validity” and “nullity”، validity between the parties and nullity to third parties. Our law obtains this sanction from French law. Thus for an exact study، referring to original law is inevitable. In Iranian law there are sporadic instances of unenforceability. But sometimes unenforceability is misdiagnosis with similar concepts، and its instances are neglected in the texts. Also we need general principles to use in ambiguous and silent cases. Generally unenforceability is misdiagnosis with “inefectivity” and “relative nullity”. Current instances are in three branches: civil law، commercial law، and intellectual property rights. Also in these grounds we can obtain general principles: “the motive role in unenforceability”، “third party’s concept”، “type of legal act”، “situation of subsequent legal acts”، “subjectivity or objectivity” and “retroactivity”.

Legal fiction is an instrument for achieve to a "fair law" through "mechanical law" and cross from “what is” into “what should be”. Rigidify of rules of law must not be a pretext for being self-interest and irresponsibility. One who wants to kill his pain through agitating other peoples tranquility and prefers his intoxication to get what he wants, doesn’t deserve to equal to sleeper, minor and insane person under the pretext of lack of intention, and thus having right to escape from prosecution. Consequently, it is just at this point that the fair nature of law creates a new plan and forms the institution of "wanton negligence" in order to prove improbable matter of fact of action, “willful”. What has been brought in this essay is the quality and boundaries of comparison "wanton negligence" to "voluntary intoxication".