نشریه دیدگاه های حقوق قضایی
پیاپی 84 (زمستان 1397)

Nowadays there are many aliens’ populations living in other countries. Forced Migration and Study of Religious Sciences are two main reasons introducing Iran as a host country. This paper Intends to clarify some questions about enforcement of Iranian civil code which determines the applicable law on the personal status of foreigners. There are some disagreements about the law governing personal status and situation of foreigners and it is because of some ambiguities in the Civil Code. There are two main interpretations about the Civil Code: the first view claims that the law of Iran must principally apply to Personal status of foreigners unless there is a treaty between Iran and the foreigner’s national state which resolve the problem; but the second view defends applying law of the foreigner’s national state and believes that absence of a treaty has no effect. According to the historical events and legal facts with an analytical view, this paper proves that the second interpretation is more efficient and rational.

Although the purpose of International Convention on the International sale of goods is not to unify the law of state parties, according to Article 9 of the Iranian Civil Code, “the Provisions of the treaties which has been concluded between the Iranian state and other states according to the Constitution are as valid as the Statute”. On the other hand according to the Article 4 of the Constitution all of the codes must be compare in conformity with Islamic law. The International Convention on the International Sale of Goods (Vienna, 1980), seeks to consolidate and harmonize laws governing international sale which Iran's accession to it could lead to the promotion of Iran's foreign trade and economic prosperity. Iran's accession to the said Convention is faced with internal and international restrictions. Some of internal restrictions comprise constitutional restrictions and the absence of comprehensive plans and general policies, as well as the violation of some of the provisions of the Convention by domestic law, and some of international restrictions include the opposition of the world’s Superpowers through economic sanctions as well as the weakness of Iran's economic diplomacy. None of these issues poses a serious challenge to Iran's accession to the convention and what has been done in spite of the extensive efforts of Iranian lawyers in recent years to approximate the provisions of the Convention with domestic law, is the lack of determination among the practitioners.

The discussion about the person's liability for the actions attributable to him before the stage of contracting is a new debate that has been attracted the attention of legal circles. According to this debate, the person’s freedom of contracting does not implement the person’s freedom to ignore the rights and interest of other party. As a result, it would be possible that contracting person considered as responsible with the realization of contractual condition. However, the main problem is that despite the domination of the rule of contractual freedom in negotiating process, on what foundations such a responsibility can based. Does accepting the responsibility in this regard mean the violation of person’s freedom of contracting? Hence, resorting to a descriptive-analytic method of research and a comparative approach, this research seeks to study the foundations of pre-contractual liability and also description of contractual, non-contractual or specific nature of the pre-contractual liability. Concisely, we can say that the most important reason for defending the pre-contractual liability would be the violation of fair negotiation obligation. Also pre-contractual liability has its own especial nature, but ultimately has a lot of correspondence with non-contractual civil liability.

Islamic securities (‘sukuk’) are securities which have the features of stocks and bonds toghater. Similar to stocks, these securities indicate a type of partnership. However, these securities usually bear a maturity date like bonds and contrary to stocks. This has resulted in sukuk (Islamic securities) to be considered as a type of hybrid securities. Hybrid security is a term used to describe a security that combines elements of debt and equity securities or bonds and shares. Preferred shares, convertible bonds and subordinated bonds are common kinds of hybrid securities. The idea to create these securities is to design a type of security that can be considered share for some purposes and be considered bond for others through which we can gather best of the two different kinds of securities in one security. In this paper we have introduced hybrid securities, have explained sukuk’s similarities with stocks and bonds and finally have introduced sukuk as a kind of hybrid securities that also can broadly be used in the non-Islamic markets.

The document registration system is one of the most important instruments for guaranteeing the rights of individuals and preventing the occurrence of many disputes. In many developed countries, attempts have been made to change the system of registering transactions and documents. Thus, countries like the United States and Britain have changed the status of electronic registrations by adopting new laws, and by use of new technologies, have recreated the new registration system using smart contracts in the block chain. Although new laws such as the Cadastral Law have been approved in Iran, and electronic registration has been developed more widely, but the use of new registration methods in the block chain with the use of smart contracts requires the development of technical and legal contexts and infrastructure. Smart contracts are electronic contracts that have unique features such as security, supervision, transaction efficiency, and the need for financial intermediaries and judicial authorities to interact with other electronic contracts. Implementation of the process of concluding these contracts in Iran's law requires attention to the challenges in this area, including how to determine the time and place of concluding these contracts, the challenges associated with defects of will, the system of responsibility, the system of risk acceptance. Solving these challenges can make these contracts more effective in Iranian law. In this paper, we tried to study the latest scientific works published in this field in the world and to use legal experience of some developed countries and to examine the current status of the Iranian registration system and to review the existing capacities, substrates, challenges, deficiencies, and inadequacies and solutions.

Terrorism is an offensive action which violates human rights and always invades to people’s rights. Given the high incidence of this type of global action and the widespread violations of human rights and peace and security, countering terrorism will be important. The existence of financial resources is an essential element of terrorism and Preemptive measures and their success in blocking financial aids to terrorists shows the importance of monetary resources in funding and managing terrorist groups. Financing is a necessary prelude for terrorism and without necessary funds the terrorist groups are not capable of executing their illegitimate ends. The importance of this component is such that the terrorist groups carry out numerous legal and illegal activities in line with the funding they need. Given the fundamentals of the role of financial resources in the occurrence of terrorism, these resources play a decisive role in the fight against terrorism and by fixing preventive measures on this important pillar and by creating a barrier to the financing of the terrorists, an important issue is to prevent and reduce terrorism successfully. Therefore, preventive measures can be taken in the forms of banking and non-banking measures to counter the financing of terrorism and subsequent counteraction to terrorism.

One of the most important topics in the law of civil liability, in the case that two or several factors are causing the damage is discussion of how to distribute the damages and the participation of each factor in the process of part payment of the damage. In any event, given that responsibility should be determined on the basis of liability rules, which in the Iranian law are mostly arising from the titles: The criteria for apportion into the criterion of equality, degree of affection and degree of fault. By studying different sources of jurisprudence and paying attention to the analytical theories of the Jurisprudence, we can find that the distribution of damage (according to) based on equalization of causes, are their well-known approach and opinion, and if we consider the defects on other criteria and attend to the point that those criteria are not proposed dogmatically, But they are suspicious and probable, the value of the criterion of equality is better understood. Also, in Iranian law, by reviewing various laws, it can be said that: The criterion of equality is accepted as a general rule in Iranian law, for which there are Justified reasons, including the facility of prosecution, determining the impact of each factor, preventing the prorogation of trial, the relationship with the purpose of civil liability that is compensation for lost, the securance of justice and also this criterion is consistent with the well-known opinion of jurisprudents and the Iranian legal system. Therefore, the other criterion that is accepted in Article 14 of the Civil Liability Code and Article 526 of the new Islamic Penal Code is an exception of the principle and applies only in certain cases. Therefore, the the criterion of equality has been more or less effective than the other. The same meaning is inferred from Article 526 of the new Criminal Code. In this research, by analytical and descriptive study of legal thought and legal articles, on solving the puzzle of distribution of civil liability in case of multiplicity causes and factors of injury suffered and several community causes, it has been explained that theoretically Iranian law in the new Penal code has been succeeded. It is necessary to be noted that Iranian law also has some weak points which will be referred to them.

Certain crimes have been committed at the time of the Imams, and people have asked them of the atonement verdict. In some cases, the narrators have asked them of an assumed crime. None of these crimes have happened in a void, or in the mind of an empty minded narrator. They are all derived from the special circumstances of that period. So, careful examination of the crimes described in narrations about their atonement brings us a better understanding of the following: What those people knew of human body, the kind of instruments which were used to measure the severity of a crime, common instruments by which crimes were committed, the kind of crimes which were either committed or were imaginable for the narrators in that period, and finally, common properties which were regarded as valuable generally or in special regions.
These are all reflected in the narrations accounting for different atonements. It is, therefore, important to pay attention to these period characteristics mentioned in the narrations (regarding anatomy, criminology, and the properties assigned as atonement) in order to derive religious laws on atonements for crimes committed today. A Faqih (Islamic Jurist) cannot disregard the special implications of those times which possibly formed a part of the subject of the verdict. The knowledge and culture of that time could –at least– in some cases restrict the instructions of the Imams regarding atonement to their specific era. It is impossible to derive the “rulings on atonements” from the “Islamic narrations” without getting to know about the cultural background in which they were issued and without comparing them to the cultural backgrounds of the time when these rulings are being derived. An updated derivation of rulings on atonements requires deriving these laws from the four major sources in such a way that “the anatomy, instruments used to measure the severity of the crime, common instruments by which crimes are being committed, types of crimes, and suitable properties to be paid as atonement” are more compatible with the time of deriving these laws.

As a result of information technology era and possibility of swift access to information, endorsement of Confidential Business Information (CBI) has found an extraordinary importance; whereas the CBI concept and legal warranty in order to support it thoroughly in Iran is not emphasized in the framework of a specific law. This issue has led to legal problems in the trial with allegation of CBI violation and demand for endorsement of it. Accordingly, many parties become victims of adequate provisions lack and suffer from huge damages. Depiction of supporting provisions in order to strengthen contractual and civil liability in this field, will lead to commercial security and investment growth in our country. Consequently, verifying of fundamental-supporting dimensions of CBI in jurisprudence and Iranian law will accelerate the acceptance of this Institution in the form of comprehensive law enactment. In the current research, first of all -in a comparative verification- it is focused on CBI concept in England and Iranian law. Then justified basis of CBI supporting are pointed out in two fields in the title of intellectual possession and private frontage with restriction of jurisprudence and Iranian law. Eventually taking care to liability roots in structure of Iranian law, contractual liability and then civil liability of CBI violation in three fields  based on blame liability, strict liability and absolute liability will be analyzed. The dominant method on current research is based on description and analysis.

According to accepted principles of criminal law, whether in written Civil Law system or common law System, the mere existence of material and mental elements of a crime is not suffice, but their coincidence is also required. Only when they coincide in time, it may be said that the crime has occurred and criminal responsibility is completed. Many discussions have been put-forward in legal writings about the principles of coincidence between material and mental elements of a crime as well as challenges that this principle can create in criminal justice system. It is tried in this research to first, explicate the meaning of the principle and the challenges that its conventional understanding can create and following which the problem of not coinciding is also explorated. Then, different approaches to explain these problems are critically reviewed. Finally, in the conclusion a chart is proposed which shows various forms of relative coincidence between mental and material element of a crime.

Observing a reasonable deadline throughout the criminal investigation process, as one of the most fundamental defensive rights of the accused, emphasizes the importance of reasonable expediting in the process of proceedings in a high degree of accuracy, which considers necessary for the fair trial and the desired outcome of criminal proceedings. Delivering justice within a reasonable time is one of the basic principles of criminal procedure. The concept of a reasonable period of due process is that through a reasonable period, it is possible to deal with the case and establish justice in this way; but it is not easy to determine howdeadline is normal and reasonable. In the present article, three criteria are analyzed as criteria for determining the reasonableness of the trial period: typical (objective), subjective (personal) and mixed (intermediate). The objective criterion emphasizes the determination of the deadline for prosecution by the legislature. The subjective criterion is the circumstances of each case, which determines a reasonable period appropriate to that case, and can vary from case to case. Finally, the mixed criterion utilizes both of the above factors. Eventually introducing violations of reasonable time, the guarantee of non-compliance within a reasonable time is reviewed.

The principles of independence and impartiality of the Judiciary is one of the most important grounds to achieve a fair trial and to ensure the rights of citizens in the proceedings, the principles which are inevitable for the existence of a judiciary whit fair and equitable judges. These principles have recognized in the vast majority of domestic legal systems as well as international legal regulations, specially certain regulations about justice such as Banglore principles. It seems that in order to achieve full independence of the Judiciary and the judges in each country as well as their impartiality in the proceedings, it is necessary to obtain the basic and preliminary conditions and principles. According to the studies conducted in the international regulations and the internal systems of several countries such as Iran, in order to full realization of the two principles of independence and impartiality of the judicial authorities, it is necessary to defined and explain some principles such as institutional independence, individual independence of judges, forms of appointment of judges and recruitment of judges so that independence and impartiality of the Judiciary can be provided in order to maintain and protect the rights of citizens and the requirements of right to fair trial.