جستجوی مقالات مرتبط با کلیدواژه « بار اثبات دلیل » در نشریات گروه « فقه و حقوق »

According to a legal rule, the burden of proof is on the claimant who presents a claim to prove the facts and difficulty in proving the claim never frees the claimant from the obligation to prove. If the claimant does not provide sufficient evidence to prove its claim he has acted at its own disadvantage. On the other hand, in the arbitration agreement, the principle of party autonomy is an accepted principle and according to it, the parties are free to choose the procedural and substantive provisions governing the agreement. This article tries to determine whether the authority of the parties in determining the governing law includes the authority to adjust and change the burden of proof with the descriptiveanalytical method. It is obvious that this authority, as well as the authority of the arbitral tribunal about adjustment of the burden of proof, should not lead to a change that would conflict with public policy, mandatory rule, and rules related to the principle of equal and fair treatment of the parties. There are different opinions about whether the burden of proof has a procedural or substantive nature but our review in this article shows that the dominant tendency in the international commercial arbitration procedure is that the rule of burden of proof has a substantive nature.

Money laundering means legalizing the origin of dirty money, among new crimes that the legislator has more sensitively approved due to its specific characteristics and apparent conflict with some jurisprudential foundations and documents. Also, its jurisprudential documentation is not well clarified and at the first glance, it seems to be in conflict with some jurisprudential principles and rules among which is the burden of proof process. In criminal lawsuits, the prosecuting attorney basically proves the cause, and based on this, one is obliged to prove the elements of the alleged crime. But this issue is reversed in the crime of money laundering and the burden of proving the legality of the obtained money is placed on the accused. Therefore, apparently, the process of prosecution, trial, and proof of a crime is in conflict with such fundamental rules as the rule of "Al-Bina Ala Al-Mada'i", the rule of "Yad", the principle of "quietus" and the principle of "authenticity". In this regard, the text of the amendment of the Anti-Money Laundering Law approved in 2017 states that the legislator has paid attention to this point, and in notes 1 and 3 of article 2 of this law, he considers the meaning of knowledge to be the same as the knowledge of a judge as stated in the Islamic Penal Code. Therefore, if the meaning of suspicion is close to judge knowledge in this law, relying on the evidence of the authority of the judge's knowledge, the crime can be easily proven, and the issue of reversal of the burden of proof is eliminated. And, if a problem is stated that the strength of the evidence of suspicion is close to the knowledge, it does not reach the level of knowledge of a judge. Here, with the objectivity of suspicion and the incompleteness of its evidence, the mentioned conflict will be created, which must be resolved. The leading research with jurisprudential and principled approach and with descriptive-analytical method has expressed and resolved the mentioned conflicts and finally, the non-conflict of these rules has been concluded.

The most important mechanism for achievement the truth in international commercial arbitration is opting out the type of governing system on arbitration process. In this regard, the arbitrators should select the appropriate system among the adversarial, inquisitorial and hybrid systems. Flexibility of international commercial arbitration process as a private solution for dispute resolution and the specific needs of each case in this area required that the arbitral tribunal takes into account the conditions governing in the cases of international commercial arbitration and chooses the efficient system for arbitration process.This article in parallel scrutinizing and studying the difficulties of each approach of for recognition the appropriate system in international commercial arbitration process analyses the types of governing system on arbitration process the approach of the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration that approved in December of 2018 tries to introducing effective mechanisms in discovering the truth.