جستجوی مقالات مرتبط با کلیدواژه « تابعیت » در نشریات گروه « فقه و حقوق »

Today, one of the important issues that are raised in the domestic and international arena of governments is the issue of nationality, and every government tries to determine the nationality issues of its nationals by establishing specific rules. One of the things that can be effective in acquiring the nationality of a country is marriage which, depending on the conditions stipulated concerning it, can lead to either the granting or deprivation of nationality. In this regard, the Iranian legal system has distinguished between men and women and does not have the same view concerning them; while the Turkish legal system, does not recognize such a difference. This research, which is analytical and descriptive, has addressed the issue of nationality, the methods of its acquisition and the effect of marriage on the acquisition and loss of Iranian and Turkish nationality by either husband or wife.According to the statutory articles of these two countries governing the issue of nationality, it can be stated that in the Iranian legal system, the type of marriage and its legitimacy and legality can affect the national status of Iranian men and women and even in certain cases, may lead to deprivation of Iranian nationality from individuals, while the Turkish legal system adopts a different perspective on this matter. The Iranian legislator, while distinguishing between Iranian women and men who marry foreign nationals, has simultaneously accepted the principle of family unity and the principle of individual freedom. In such a way that, with regard to the Iranian woman, if she marries a foreign man whose national law imposes the husband’s nationality on the wife, then the principle of family unity is acknowledged. However, if an Iranian woman marries a foreign man whose national law does not impose the husband's nationality on the wife, then the principle of individual freedom is recognized. For a marriage that affects the nationality of the husband and wife to be valid, Article 1059 of the Civil Code must be observed. If a religious marriage has not been conducted between the man and woman, the nationality of individuals cannot be changed based on the marriage. In the Turkish legal system, merely marrying a Turkish citizen does not automatically grant Turkish citizenship to the individual. However, this person can acquire Turkish citizenship if legal conditions are met, without needing to apply for nationality and fulfilling the necessary requirements based on Article 11 of the Turkish nationality law. In other words, the accepted principle in this country regarding the relationship between husband and wife within the family is the principle of individual freedom and the non-necessity of the unity of nationality for husband and wife.

Granting citizenship through the Iranian legal system has challenges in relationship with citizenship of children born from the marriage of Iranian women to foreign men. In 2018, an article was approved to cover the shortcomings of the law on determining the citizenship of children born from Iranian women to foreign men approved in 2006. This not only did not open the way but made the problem more complicated. One of the challenges is the sufficiency of Sharia marriage instead of permission from the government (Article 1060 of the Civil Code) for granting citizenship, which creates irreparable consequences, especially for Iranian women. Also, despite considering this fact that the citizenship to be acquired, granting citizenship has been positive and has created a situation of dual citizenship. The present article, through a descriptive-analytical study, is concluded that although it is possible that granting citizenship to these children is a positive step to reduce their injuries and problems, and it is good for people without birth certificates who have dual identity; But due to lack of proper information and lack of transparency, there are many challenges in this field; Also, due to the existing secret and unplanned migrations, the issue faces security and political threats. The large volume of immigration to Iran has also turned the issue from normal to security and political. The process of issuing a birth certificate is faced with a considerable delay in the security institution's inquiry stage. Still, due to security issues, it is impossible to reduce decision-making institutions. Therefore, Iran should enter this issue more consciously and actively, and turn threats into opportunities, and the approach to granting citizenship should not be unilateral.

Citizenship is a legal relationship between citizens and the government, based on membership in a political system through citizenship. Citizenship rights are a set of rights and privileges that are granted to citizens in the legal system of a country. These rights have been established equally for all citizens and guarantee the protection of their rights against the encroachments of the government and other powerful social groups and classes. According to the Convention on the Status of Refugees, a refugee is a citizen who stays outside the country he was previously in to escape or fear racial, religious, ethnic and national persecution, or to be a member of a particular social group or have political opinions. And he is deprived of the support of his home state, and on the other hand, since he does not have the citizenship of the refugee-receiving country, he is deprived of the rights of citizenship in that country. Of course, the refugee's deprivation of citizenship rights in developed countries is different from developing countries. This research with descriptive-analytical method seeks to answer the question that in a situation where refugees have the same citizenship rights as others in the host countries, do refugees have the desire to return to their countries of origin? The findings of the research indicate that in a country where refugees can enjoy the rights of citizens to enjoy a decent life, regardless of whether the conditions that caused their displacement have disappeared or not, they tend to stay.

Citizenship is considered as one of the legal issues that affects various legal and even extra-legal and extra-legal categories. Learning the citizenship of a child through the mother is one of the challenging issues raised in legal circles. The following article seeks an analytical answer to the question, what is the approach of Islamic Arab countries regarding the acquisition of citizenship of a child through the mother? Rakhman's hypothesis for the next few lines is that Arab Muslim countries are more inclined towards recognizing the citizenship of a child through the mother. In order to verify its hypothesis, the following article has used the descriptive-analytical method and has shown that in Arab Muslim countries, some of them believe in non-recognition, some believe in absolute recognition, and others believe in Conditional recognition of the citizenship education of the child through the mother. The present article has reached the conclusion that the course of the legislative process of Arab Muslim countries regarding the acquisition of citizenship of a child through the mother shows that the legislation in this area has moved towards more tolerance and this means that gradually The direction of moving away from the classical approach of absolute non-recognition of the child's acquisition of citizenship through the mother has moved. In fact, from the absolute lack of identification (thesis) and from the approach of absolute identification (antithesis), it is moving towards conditional identification as a synthesis.

According to Article 167 of the Constitution and Article 3 of the Civil Procedure Act, the judge is obliged to issue a judgment based on the law. That is, the legal basis of a judgment rendered by the court must be the law, and in cases where the law is silent, refer to authentic Islamic sources or authentic fatwas or general legal principles. In the meantime, the question is whether international instruments and treaties can also be relied upon as a basis of judgments and if the answer is yes, under what condition or conditions these international documents and treaties can be relied upon as the basis of judgments and in which category and these instruments are included in which category of cases listed in Article 167 of the Constitution and Article 3 of the Civil Procedure Act? In accordance with Article 77 of the Constitution, treaties, protocols, contracts and international agreements must be approved by the Islamic Consultative Assembly and in accordance with Article 9 of the Civil Code, the provisions of the covenants concluded between the government of Iran and other countries are tantamount to law. Therefore, the treaties that Iran has joined in compliance with the formalities of the conditions contained in the Constitution, are tantamount to domestic laws and can be relied upon like domestic laws. In this report on the critique and analysis meeting, two judgments, one on the subject of the acquisition of Iranian nationality for an Afghan national and the other on the issue of requiring the defendant to divorce his wife, have been examined, and the method in which the court relied upon international treaties has been critiqued in terms of the degree of compliance with the principles of rendering judgment and the fact that judgments must rely upon the law.

In recent decades, events have taken place that can be considered as evidence of change in the concept of citizenship of the national state. The present article answers this question by understanding such importance: What is the evidence for the conceptual transformation of national state citizenship? In response to this question, using the research method descriptive-analytical, the following results have been obtained: First; Although in the national state, "citizenship" is inherently linked to "citizenship", in recent decades there have been signs of a break in such a connection. Second; This rupture is a clear indication of the challenge to the inherent link between the two concepts: citizenship and citizenship in the national state. Third; This rupture can be considered a fundamental change in the perception of the concept of citizenship in the national state, in a way, this concept is moving further and further away from the context and space of the national. Fourth; In the new situation, citizenship must inevitably be viewed from a new perspective Which can be considered as a possibility of passing from the national state and standing on the threshold of postmodernism, or at least, the status of a "flexible national state." Such a state, some of its classical functions and elements are on the verge of disintegration.

Support for the victim is the main pillar of the supportive victimology approach. This approach in Iran's legal system has also been taken into consideration through friendly mechanisms and paying attention to the consent of the victim and his role in committing the crime. The aim of the current research is to investigate and analyze the compatibility of criminal jurisprudence with the concept of the central victim in the framework of Iran's criminal law system. The findings of this research, which were collected by descriptive-analytical method and library tools, show that the evolution of new criminal laws in the light of jurisprudence and jurisprudence rules that pay attention to the role of the victim has been very precise and significant. In this regard, the results of the present research indicate that some of the rules and rules of penal jurisprudence are relatively compatible with the victim-centered approach and the model of restorative justice. This has caused the said rules and orders to have the necessary capacity to create changes in the process of criminal proceedings and the chain of repeated victimization. Finally, in relation to the protection restrictions that have been created in some legal institutions, the necessary rethinking and revisions should be applied.

The principle passive personal competence, as one of the principles of jurisdiction governing criminal law applies when a crime is committed against a citizen outside the territory of a country. In this paper, with using of descriptive-analytical and library methods and by study and adaptation around the principle of passive personal jurisdiction in the criminal law of Iran and the United Kingdom and by looking at international documents, the following results have been obtained: firstly, in Iranian criminal law, the principle of passive personal jurisdiction is accepted for all crimes in accordance with the conditions and arrangements, but in British criminal law, it is accepted just for only some very important crimes, including hostage-taking and various aspects of terrorism, such as murder, Kidnapping, the use of explosives. Secondly, there are differences in the criminal law of Iran and the United Kingdom based on the terms of the conditions for the realization of this principle. Such as, in Iranian criminal law, the conditions of No previous consideration and non-implementation of double punishment in case of some crimes such as Qesas, Diat and Tazir are not accepted by the legislator, and However, in British criminal law, these conditions apply to all offenses under this principle. Thirdly, the condition of trial in absentia in the application of this principle is not accepted in the laws of both countries. Therefore, in terms of the application of this principle, the position of the UK criminal justice system is more in line with international instruments.

The Right to citizenship means individual’s right to have civil, political and economic rights. This right has been noticed by many human rights instruments, but no instruments contain the right to citizenship in general for all human being. This is why there are many homeless and stateless people in the world. The individual free right to citizenship emerges as an opponent for the sovereign authority of a states to granting nationality. So, states have always ignored to recognize the right to citizenship as a human right. globalization and international human rights instruments Explosion in the second half of the 20th century lead to more restriction of state sovereignty and enhanced individual’s significance in international system. The concept of the right to citizenship has been also affected by such evolutions. Thus, current post-nationalism approaches that caused the emergence of some concepts such as global citizenship and universal personhood, also lead to restriction of national sovereignty in the context of citizenship and developing the concept of citizenship. So, as a result the right to citizenship can be introduced as a human right; a right that has been consolidated and developed in the aftermath of globalization.

Since the beginning of the twentieth century, the problem of statelessness of natural persons as a problem in the international community due to its very negative effects, including deprivation of basic rights, has always been a concern of governments which led to the creation of a principle in international law called the principle of the necessity of nationality and prohibition of statelessness. The legal system of the Islamic Republic of Iran is no exception to this challenge and has been involved in the problem of statelessness. To solve this problem, it is necessary to analyze the reasons for its creation as well as those cases where statelessness is permitted. This will enable us to provide adequate solutions to prevent and eliminate it. After explaining the principle of the necessity of nationality and the prohibition of statelessness in light of international documents, the causes and exceptions of the prohibition of statelessness are discussed using a descriptive-analytic method and a practical approach using international law literature from foreign and domestic sources. Afterward, effective solutions are provided to solve the problem. And finally, Iranian law has been evaluated according to this principle and solutions. This is to identify existing gaps and propose solutions to overcome this problem and improve the current situation. Iran's law is generally in line with this principle of international law. Nevertheless, there are ways to fully implement it and to prevent and resolve statelessness when it isn't allowed.

The principle of personal criminal jurisdiction based on the nationality of the victim in criminal law is the national legislative and judicial jurisdiction over crimes committed against its own citizens abroad. In fact, accepting foreign punishments and sentences is a condition for the national court. The Iranian-British criminal systems are coherent in identifying this type of jurisdiction, however, the maximum range and multiple standardization in Iran versus the minimum range and single standardization of the United Kingdom indicates a kind of differential criminal policy. In Iranian law, personal jurisdiction based on the victim's citizenship can be applied extensively to all crimes with various criteria, including the victim's citizenship relationship with the country of origin, mutual criminalization, prohibition of retrial and retribution, and the presence of the accused in the country. In English Law, on the other hand, personal jurisdiction is limited to specific offenses. Despite sharing the maximum scope, there are also significant differences in multiple standardization between the two penal systems, i.e., in Iran, only in non-prescribed religious crimes, the rule of mutual criminality and the prohibition of trial and retribution of the perpetrator is accepted. Regarding the crimes of hudud, qisas and diyat, the principle of passive personal jurisdiction is applied and in addition to not being bound by mutual criminality, the trial and retribution of the perpetrator are accepted; a strategy that is not compatible with the criminal case in the UK. Therefore, it seems that the exceptional aspect of personal competence based on the citizenship of the victim requires appropriate identification. Accordingly, the British approach is more prudent.

Residence is considered as the main factor in determining legal citizenship, which has been considered in various legal systems. On the other hand, it is the source of changes in laws in marriage, divorce, inheritance and will. In order to determine the righteous law of foreigners in the rights of different countries, two factors are typically taken into consideration: one "residence" and the other "citizenship".In Iranian law, articles 6 and 7 of the national law are accepted and explicitly stated in the case of Iranians residing abroad and foreigners residing in Iran, according to the law, the residence law of the competent law on the personal status of natural persons at the time of dispute and dispute shall be subject to the law of the headquarters of the dispute. This study aimed to examine the right to determine the residence in personal status in jurisprudence and law.Keywords: Residence, Citizenship, Personal Status, Competent Law.

Granting citizenship to persons on the basis of the Jus Soli has been the oldest principle in the formulation of citizenship rules in legal systems. It seems that the drafters of the Iranian civil code in applying the rules and regulations of citizenship have been completely influenced by French law and have translated the nationality rules of that country. Citizenship rules, like many other social issues, must be governed by the cultural, political, economic and social conditions of each country. A Comparative Study of Jus Soli in the Legal System of Iran and European Union Member States, including France and the United Kingdom, can show how nationality regulations evolve under these conditions. Iran's civil code, using French law, has used four of the five recognized Jus soli models. The economic, cultural and political conditions of Iran indicate that the granting of all recognized forms of citizenship is not in the interests of the Iranian government and society, and that Iranian citizenship requirements in the area of Jus Soli require substantial reform. Using this comparative study, the Iranian legislator can apply the necessary amendments to the rules on Jus Soli proposed in this article in Iranian civil code.

The special position of group of companies in international investment is undeniable. This notable position and their deep influence in international investment is such that group of companies plays a role equal to that of states in foreign investment. One of the most challenging discussions around group of companies is their nationality. There are serious disagreements as to whether the group of companies has legal personality and, consequently, nationality. Recognition or non-recognition of the legal personality and nationality of these groups has important and diverse legal implications that need to be examined carefully. These include the rights, obligations and responsibilities of the member companies vis-à-vis the parent company as well as the host country of the subsidiaries. Examining the law of Iran and France it is understood that group of companies lacks legal personality and nationality. In EU there is no unified regulations in this regard, but the case law of EU has taken a double approach toward the subject. This article introduces a pervasive framework for the assessment of the nationality of the group of companies and considers the controversial situation of some well-known company.

For more than one decade, Treaty Shopping is at the center of the discussion of the International Investment Dispute Settlement. Generally, treaty shopping is a practice which international investors (natural and legal persons) through various methods, in particular, nationality planning, corporate structuring or restructuring, and by transfer of claims deliberately are seeking to use or take more benefits of the more favorable advantages of the BITs which the home country probably conclude with the host or third countries. The arbitration courts are faced with this question that they should dismiss the disputes containing treaty shopping or not? And is nationality planning or changing the corporate nationality by investors which occur aiming at utilization of the treaties advantages would be “Legitimate Nationality Changing” or “Treaty Abuse”? The aim of this article is to consider and analyze the notion of treaty shopping, methods which treaty shopping will be occurred and the quality of determining treaty shopping, in particular, in line with the foreign control notion based on the jurisprudence of the arbitration courts and investor-State arbitrations, in particular, ICSID and the solution for decreasing its possible effects.

Today, the methods of committing crimes and criminal acts have departed from their traditional and limited approach and its international and transnational dimensions have expanded, so that in most cases, the domestic legislative-judicial policies of countries have not been able to answer the existing problems And this requires the cooperation of countries in various judicial dimensions in order to achieve the goals and principles of criminal law. One of the most important examples of judicial cooperation between countries is the "transfer of convicts", which plays an important role in achieving criminal justice and protecting the rights of convicts and nationals at the transnational level. In fact, the transfer of convicts as a tool for the transfer of the convict from a foreign country to a country with which she is related in terms of components of citizenship or residence is envisaged. In this article, with a descriptive-analytical method and with a practical approach, while explaining and analyzing generalities about the transfer of convicts, we also examine the necessary conditions for its implementation and finally analyze and explain the effects of this manifestation of international judicial cooperation.