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

The right to a trial as one of the types of human rights has been emphasized in various international instruments and most countries' domestic laws and possibility of challenging a decision issued by dispute resolution authority is one example of a right to a trial. Considering relationship of this right to human rights, the validity of such an agreement is questionable. Regarding the arbitration, some regulations recognize the exclusion agreement about setting aside the arbitral award. An important question arises about whether this situation is contrary to the parties' right to a trial as one of the examples of human rights or not. This question has been examined in the current study and finally the present article concludes that in order to respect the human rights of the parties, the validity of said agreement is conditional on "being explicit", "freely" and "concluding after the award and knowing the reasons for the objection" and in case of violation of the principle of fair trial and lack of independency and impartiality in the arbitrator, the said agreement has no effect. In Iranian law, due to the lack of legal explicity and human rights considerations, only in the presence of all the above criteria, exclusion agreement about setting aside the arbitral award is valid and effective.

Although the issue of security, independence, freedom of expression and press crimes are not related to each other, but after examination and research, it is clear that security and independence on the one hand, and the issue of freedom of expression and press crimes on the other hand, have a very deep connection and causal relationship with each other. One of the concerns approved by Sharia, reason and law has always been avoiding chaos and ensuring security and independence, but the method of maintaining security and independence has always changed.In the past, military equipment was often used as a means of maintaining security and stability, and freedom of speech and the press were often considered a threat to security. However, in recent decades, although the limits of criminalization in press crimes have become very important for security and independence, the maximum method of creating security and preserving independence is public participation and freedom of expression and actions through the media, including the press, which is contradictory.      In this article we have examined , this basic question " what is basically the causal relationship between independence and security on the one hand and legitimate freedoms, especially freedom of speech on the other hand? “ with a descriptive and analytical method.The most important result of the research is that from an Islamic point of view and based on the verses of the Holy Qur'an, the maximum participation of the people through legitimate freedoms is the cause of maintaining the country's independence and security, and there is a causal relationship between independence and security.

Witnesses and informants are considered assistants of the criminal justice system and play an important role in discovering the truth and obtaining results from the judicial authority. They should be able to express their statements clearly and honestly under the protection of the principle of fair proceedings and away from the threats and insults of the litigants. Threats and insults towards the assistants of the criminal justice system cause disruptions in the proceedings, on the basis that they cannot express their statements in a way that is worthy of discovering the truth and obtaining results, therefore, measures must be taken to ensure that witnesses and informants are ultimately independent and Declare the impartiality of what they know about the lawsuit in question to the judicial authority. This research aims to investigate the crime of insulting witnesses and informants in two legal systems of Iran and Germany with a descriptive-analytical method and using library resources. The findings of the research show that in both countries there is no independent crime under the title of insulting witnesses and informants, and to determine the guarantee of criminal execution against this category of actors of the criminal justice system, one should refer to the general regulations. Also, other regulations have been foreseen in the legal system of both countries, which include a preventive approach.

The independence of directors means the ability to think and make decisions freely, taking into account the interests of the company and shareholders and without being influenced by factors that cause conflicts of interest with corporate rights. Undoubtedly, the independence of directors has been able to significantly increase the efficiency of the companies' board of directors, and in the meantime, the basic assumption has been that the directors of companies make independent decisions based on their own merits and regardless of personal interests or emotional affiliations. This article, with descriptive-analytical method seeks to prove that today, it is not correct to talk about the assumption of independence which is assumed for them in the decision-making position due to the norms, changes and structural bias, psychological realities such as group thinking prevailing in the board of directors and maybe directors do not want to invoke this right in practice because of maintain their position, common interests and their relationships with others directors.

The principle of independence and impartiality of judicial proceedings are two significant components in criminal procedures and a key constituent in a fair trial, which can be seen as natural law and primary requirements of human societies.The concepts of independence and impartiality are regarded as two independent and separate legal-judicial institutions, though they have been used together and overlapped. An important and basic condition for realizing judicial independence, the independence of the judiciary as a whole from other governmental institutions can be met with the observance of the principle of separation of powers. On the one hand, the realization of judiciary independence involves assurance of the structural independence of the Judiciary, and, on the other hand, it calls for a mechanism for ensuring judges’ individual independence. Similarly, impartiality in the litigation process suggests the absence of improper partiality in the Judge’s mind toward either of parties or the main disputed subject, which is a constituent of fair trial and a necessary condition for realizing it. Accordingly, independence is an essential precondition, and impartiality is an essential prelude to this purpose, which is regarded as an essential feature, obligation of the judge, and the central depiction of the Judiciary. The two fundamental principles can be observed in Iran’s and China’s Constitutions and penal codes. However, this does not necessarily suggest a complete and desirable judicial independence in these two countries, as it is criticized by lawyers in such cases as the Judiciary’s financial dependence on the government and the manner of judge selection and election. Iran’s legal systems have ensured the Judiciary’s structural independence more reliably than that of China,but there are some deficiencies in guaranteeing the individual independence of judges in both countries.In order to safeguard citizenship rights in the subset of judicial independence in these two systems, two aspects of judicial security and judicial supervision are also examined.China has performed better than Iran in compensating for its legal system damages, but Iran has been more observant of human rights issues regarding detention. The idea of the rule of law is a relatively new one in China. When the imperial system fell apart at the turn of the 20th century, the idea became the center of attention. In contrast to the prevalent idea in the rest of the world, its goal with Chinese characteristics is to implement a certain level of social and economic development and social stability.

Nowadays, independent directors as one of the most important institutions of good corporate governance have progressed from the doctrinal stage into a dominant concept in corporate law. These directors are capable of becoming compatible with any legal system and at the same time have the amount of flexibility and comprehensiveness to be able to accommodate the legal concerns and values of different societies. Independent directors are independent of the company, management, and controlling shareholder in terms of business and family relationships; In such a way that while emptying the maximum of conflicts of interest, it acts more justly in their decisions and more impartially in their monitoring. Considering that this institution is entering the Iranian Companies Law through the Corporate Governance Instruction of the Stock Exchange and Securities Organization and the Bill for Protection of Small Shareholders, explaining the basics of admission and especially its advancing challenges is important. Therefore, the present study with the analytical-descriptive method has concluded that the agency theory, the principle of prevention, and gaining the trust of investors, including the main basics and groupthink, achieving independence, and the elections system are the most important challenges in accepting independent directors.

Contrary to popular belief, "central bank independence" is a legal issue that has economic implications. Because the determination of the powers, duties and responsibilities of the central bank is done by law and the government can not impose anything other than what is provided in the law to the central bank. Therefore, most studies on the independence of the central bank, from an economic point of view, deal with issues such as measuring the degree of independence, the effects of this independence on macroeconomic variables, etc. and examine the issue from a legal perspective and pathology of existing laws or the legal vacuum has not been addressed. Therefore, if the independence of the central bank is considered desirable, the best possible tool to achieve this is to provide for it in the law, which is examined in this study. This study is applied in terms of purpose and descriptive-analytical in terms of method and nature.He results of this study show that despite a law that gives the government broad powers over how the central bank is run and interferes in its decisions, in the current situation, talking about the independence of the bank can only be a political slogan. Hence, however, the mere existence of a law that emphasizes the independence of the central bank is not sufficient for its independence; but it can be seen that the existence of such a law is a precondition for the practical independence of the central bank. As a result, the independence of the central bank is related to various issues and has several criteria; Meanwhile, the interventionist role of the government (whether directly or by submitting a bill to parliament or enacting executive approvals) has the greatest impact on undermining the independence of the central bank.

The individual independence of judges, as one of the components of judicial independence, means that the judge is completely free, based on facts and legal standards, and without any pressure or influence from any of the departments, government or other sources to decide. The present study aims at investigating the extent to which the guarantees of individual independence of judges, provided in the basic principles of the judiciary, are observed in Iranian and Afghan laws. Research on this issue will help us better harmonize the laws of these two countries with the internationally accepted principles in the field of judicial independence. This library research, which has been carried out in accordance with the laws of Iran and Afghanistan, shows that in both countries strategies have been envisaged to ensure the individual independence of judges, including the selection process, job security, criminal and civil immunity of judges in Iranian law and the different disciplinary proceedings of judges. However, there are some shortcomings in this area that are addressed in this study.

There is as much discussion concerning implementation of regulations set forth in the Code of Civil Procedure regarding recusal of a judge during the enforcement of judgments as there is about the nature of orders and executive measures.In the aforementioned judgment, Branch 14 of the Supreme Court applies the rules of recusal of a judge both in the stage of enforcement of judgments and the establishment of the auction process, which is considered as one of the cases of expressing a previous opinion.According to the authors, the review of the judgment made by Branch 14 of the Supreme Court shows that although these orders and measures should not be considered as an expression of substantive opinion of a judge that prevents him from dealing with other claims about the same enforcement measures, this part of the judgment made by Branch 14, that correctly demonstrates the nature of entering an order of recusal, is affirmable.

The constitutional Council, as one of the constitutional institutions, like any other institutions, must have sufficient independence to perform its important functions; but the limits of this independence must be legal and envisaged by the competent authority. One of the aspects of the independence of the Constitutional Council is the approval of the financial, administrative, employment and organizational regulations of this institution. The Constitution of the Islamic Republic of Iran does not specify which institution should approve these regulations for the constitutional Council. Due to this gap, the Islamic Consultative Assembly passed a law, all of which was approved by the Constitutional Council. However, in the following years, the Constitutional Council deviated from its previous views and finally, on 4/19/2007 in the interpretative theory No. 21934/30/86 and according to Articles 4, 91 and 99 of the Constitution, assigned the competence to approve financial, administrative, employment and organizational regulations to this institution. This article uses a descriptive-analytical method to examine the possibility of regulating the Constitutional Council in the areas of finance, administration, employment and organization. The finding of this study is that due to the silence of the constitution regarding the regulation of the Constitutional Council and lack of connection between the above interpretation and the mentioned principles, the general legislative competence of Islamic Consultative Assembly prevails in this area as in the past. It is also suggested that the approval of the internal regulations of the Constitutional Council be explicitly granted to the Islamic Consultative Assembly.

The purpose of arbitration is to resolve a dispute and this brings the arbitration closer to the judiciary, then it creates the impression that the arbitrator must also be subject to the same conditions as are necessary for the judge. These are qualities that are essential to a judge but are optional for the arbitration body, that is, arbitrator or arbitrators appointed by the parties to the dispute. Even if, this feature does not conflict with the “judgmental" feature of arbitration, and the requisiteness of having the character of a judge by the arbitrator, was not called into question, at the very least, it casts doubt on the necessity of the arbitrator's independence and impartiality. Because, generally, the parties to the dispute select persons for arbitration that are somehow related to them. This is more evident in three-person judgments. Because in this type of arbitration, essentially, the parties to the dispute have the full discretion to choose their own arbitrator, and usually, they look for a judgment that has the most affinity, relevance, and affiliation with them. This article by separating the concepts of independence and impartiality will review and analyze the prevailing approach in international arbitration.

The CAS which was established by the International Olympic Committee with the idea of becoming the “Hague Court for Sport” in 1984, is now around 600 cases per year. As its founders had intended, CAS has gone through the path of becoming a global institution, the judgments of which the international community of sport can rely on. The structure and rules of proceedings of the CAS has been amended several times during the past 4 decades of its existence, nonetheless, issues related to the principle of fair trial, including compulsory jurisdiction of the CAS, holding proceedings in public and most importantly independence and impartiality has always been amongst the challenges confronted by the CAS. By briefly addressing the basis of the need to apply the procedural safeguards by the Court of Arbitration for Sports in its proceedings, this essay analyzes the extent to which these safeguards are applied by the Court and concludes that there exists serious shortcomings with regards to the application of these rights by the Court.

Penal trial is a process which starts from crime detection and ends in a criminal conviction. In this regard, the stages of prosecution and investigation has special importance in criminal hearing. The close relationship and, in some cases, the conjunction of some detective and prosecuting procedures with each other and their belonging to a prior stage of trial would in effect made their absolute separation and thus their complete independence so severe. Meanwhile discovering of the accused’s real conduct is the cornerstone of justice in respect to the other stages of judicial proceeding and hence the independence of the interrogator could be resulted in a fair trial. Comparatively studying of the independence of Interrogatory institution from that of Prosecution in both Iran and Lebanon, we may find that the principle of their independence has been recognized, though in Iran the Interrogatory authority which is placed amid the structure of Public prosecutor’s office and under the administration of the Attorney General has defected such independence that in several cases obliges the Interrogator to administratively serve under the attorney general’s authority. However, both-mentioned institutions are separated and independent in Lebanon and although the Interrogator has to acquire the Attorney General’s opinion in the process of investigation, but the ultimate decision would be independently issued by him and in case of conflict in their views the dispute would be referred to a distinct authority which may be called “Accusation Bureau” and as such the principle of independence is better guaranteed in Lebanese legal system.

Ex parte communication is any oral or written or any kind of communication with arbitrators in absence of the opposite party, which occurs unilaterally. In this process one of the dispute party engages hidden communication with arbitrator (Ex-parte communication) and negotiates with arbitrator about dispute, documents, evidences, details and any other related issue to the current case. In some cases instead of direct communication, the party attempts to use different means in order to impress arbitrator and therefore attracts his intention and bias to himself. Ex-parte communication is clearly against arbitrator's independence and impartiality. the arbitrator which engages ex parte communication in clearly unreliable and untrustworthy and therefore the arbitration process and its verdict will become doubtable. But there are some differences in lawyers opinions about the exact meaning of ex parte communication and its content. This article is trying to consider ex parte communication, the exact meaning of that and its content, its organs and at the end considering its effect on arbitration and the arbitral verdict.

Compatibility the rules governing a joint stock company and a medical company is not easy; can’t be accepted all the rules of a closely held corporation as the best tool of modern capitalism to performance medical profession. There is concerns about for the compliance of the rules of such a company in all stages of the company's existence, which is the formation, life and end and in relation to all the characteristics of medicine, including non-commercialism, independence and special scientific competence and the result that's mean, the patient's conscious trust. Nevertheless, fortunately optimal compatibility is possible in the light of proper benefit of rules of companies of persons and results of comparative law. Patient trust is gift of physician's duty to perform exclusively and effectively in the company and unlimited liability of partner and company. Physician independence is enhanced by apply restrictions in attracting a partner, acceptance of the rule "Each partner, one vote" and the right to withdraw the partner. Manage all partners, prohibit the manager from interfering in the profession and strengthen the majorities improves the situation. Equality of different bringers it leads to the denial of business in medicine: an approach that is reinforced by the limitation of attracting external capital an approach that is reinforced by the limitation of attracting external capital. In terms of vital services, the subject of the company's activity which is achieved thanks to the special scientific competence of physicians requires that causes of invalidity and dissolution are reduced and remove the regressive effect. However, medical the possibility of life in "Small shell of a special joint stock company" Finds and it benefits from its advantages, especially the Independent legal personality.

The General Assembly of the Court of Administrative Justice is able to fully guide the legislative and implementation process in this area with scientific content by issuing very important judgments regarding to the independence of local units in addition of being a suitable criterion and sample for future legal and executive orientations. On the other hand, the mentioned General Assembly, in the position of a procedural judicial body, can make effective decisions by taking into account the public interests and defending the rights of citizens by law-abiding in the votes and issuing judgement in order to resolve the challenges and damages related to the independence of local units. Thus, local institutions by using their legal capacity and power fulfill their job of protection and realization the rights of citizens in the society. Therefore, in the present research, with the method of descriptive-analytical, the concept that the General Assembly of the Court of Administrative Justice has from local affairs in the direction of the independence of local units criticized and leaded us to this conclusion that the criterion provided by the procedure of the said General Assembly is not so comprehensive and in accordance with the principles of public law to fill all the existing gaps.

In the Arab Republic of Egypt, the Supreme Constitutional Court is established to protect the constitution. Granting this jurisdiction to the Supreme Constitutional Court, requires adequate provision of institutional independence of the Court and individual independence of the judges of this court. In a descriptive-analytical way, this paper seeks to answer the question of whether the Supreme Constitutional Court's independence has been secured. The legal measures taken to ensure the institutional independence of the Supreme Constitutional Court of Egypt are: determine the court judges by the General Board, examination of the responsibility of the court judges by the general board, the financial independence of the court and the administrative independence of the court; whereas the irremovability of judges, their long-term membership in the court, the maintenance of their jobs, the prohibition of more than one occupation and the provision of adequate salaries for judges, provides the individual independence of the Supreme Constitutional Court judges. By defining these rules in the Egyptian constitution and ordinary laws, the independence of the court is guaranteed in order to perform its duties and powers correctly and impartially.

The most important way to legally enhance brand credibility is to look at the brand as an independent entity. Under these circumstances, the brand becomes a commercial commodity that can be easily protected in various legal situations. Brand independence means that there is no need for the brand to necessarily communicate with the product or service that contains the brand. Among the problems and challenges facing the brand is that the brand may not reflect the nature and quality of the goods and services introduced. According to the studies conducted in this article, we came to the conclusion that the description of brand independence has two important effects, one of which is the ability to transfer and the second important effect of this description is related to the transfer of mobile information. It is with the brand that this effect seems to show more of the economic and marketing aspects of the brand. The description of brand independence is mentioned in paragraph 4 of Article 15 of the TRIPS Agreement and is mentioned as one of the conditions that can be upheld in this article. In addition, it should be noted that the lack of fair competition can be referred to and cited based on what is stated in the Paris Convention.

"Judicial independence" is to establish and establish the rule of law and guarantee all civil rights and enjoy all fundamental freedoms, and an independent and efficient judiciary has an important role in establishing justice and guaranteeing the rights of individuals in society and allows the judge to stay away from any pressure. And without influence and fear of any position, even judicial authorities higher than himself, in accordance with the law and conscience and at his discretion to issue a verdict and make a decision. This principle protects the judiciary from attacks by the executive and legislative powers and prevents the interference of other powers. In international law, the application of this principle also plays an important role due to the increasing formation of international courts and arbitrations, and its most important function is to maintain the power of the court to make fair and lawful decisions. On the other hand, the "independence of the legal profession" is a big and very important thing that has made it a national issue. This is one of the manifestations of the credibility of the judicial system, which on the one hand is related to the status of the judicial system of the country and on the other hand to the observance of citizenship rights and preservation of inherent human dignity. In fact, the three main pillars of upholding the rule of law in democratic societies and guaranteeing human rights are judges, prosecutors and lawyers. Therefore, guaranteeing judicial independence in these three basic