مجله پژوهشهای حقوقی
پیاپی 46 (تابستان 1400)

The reformed Act of Check passed in 2018 has spurred innovations in check format, bringing actions, hearing, and banking matters. A number of such innovations are as follows: regarding the check format, it is not allowed to issue and endorse a check to the bearer’s order, and it is not allowed to endorse a check by hand; regarding the bringing an action and hearing, writs of execution are issued for bounced checks with the parallel of trial, and they can also be issued at the time of asking for a delayed settlement compensation, but not against the guarantor and endorser; and regarding the banking matters, the financial institutions are obligated to verify the credit rating for check book issuance, certificates of non-payment have undergone changes, insolvent and bankrupt persons cannot ask for a check book and liability of banks and credit institutions. Innovations regarding the check format, the impossibility of demanding a compensation for a delayed settlement, and the inability to issue a writ of execution against the guarantor and endorser are the disadvantages of the new act. The possibility of issuing a case check also avoids the accreditation and tax regulations. The new law does not address some of the former ambiguities, such as the nature of the documents issued by credit institutions and the timing of the check for claims that have different issuance and payment dates.

Attaching importance to incomplete crimes, the first step was criminalizing the beginning of the crime in absolute, and beginning the misdemeanors if specified, by the General Penal Code (1925). Then, the Criminal Amendment Act of 1973 was developed, through criminalizing the impossible material offence. The result of the continued silence in face of unproductive offences was that some people denied it with citing the principle of its legality and some others proved it, due to the conditions of the crime formation, including existence of criminal intent, criminal enforcement operations, and lack of result achievement through intervention of external factors. The law about the Islamic Penal System (1982) and then, the Islamic Penal Code (1992) decriminalized the act of crime beginning and ignored the subjective impossible crime, instead of completing the process; therefore, it began a retrogression movement. The Islamic Penal Code (2013) once again considered beginning of the offence as crime, and referred to the necessity of involvement of an outside factor will, in the offence commitment, in order to suspend offender's intention. In this way, the Code returned to the subject of the Criminal Amendment Act 1973, through giving a criminal description for the subjective impossible crime. However, the adopted approach has defects in some respects. First, inclusion of article 22 does not express clearly the unproductive offenses. Second, due to the nature and type of punishment anticipated in paragraphs (a) and (b) of this article, prosecution of the legal persons in relation to beginning the crime does not seem possible. Third, decriminalization of beginning offences such as forging a doctor's certificate -article 538, and beginning to bribery of judges, auditors and experts -article 588 would result in undermining of the social defense against those crimes. Fourth, despite of the importance of the issue, it has been refrained from criminalization of the crimes less than murder. Fifth, although imposition of Article 22 and considering one verdict for all cases of beginning the crime lead to expectation that the previous special regulations to be abrogated, except the regulations of the Expediency Council, the law-marker's expression in paragraphs (a) of that Article is such a way that it prevents experts consensus, concerning the decline of Article 613. This paper aims at explaining the defects and providing some suggestions to overcome shortcomings.

Today, organized crime is one of the most important national and transnational threats, so much so that countries like the United States have been thinking about fighting it effectively for years. There are also anticipated programs in international documents and regulations toward fighting transactional criminal organizations and protecting the security of witnesses and victims of such crimes.Many jurists believe that the most important way to fight organized crime is to provide extensive support for the judicial security of witnesses and victims of such crimes, so that they can safely provide their information to the judiciary and assist the judiciary in the fight against criminal organizations.Therefore, the maximum programs for supporting witnesses and informants have a special place in the criminal policy of many countries, such as the United States of America. This important matter is also noted in international documents and regulations that this global will requires, the Iranian legislature to pay attention to this issue in order to develop appropriate laws in line with global anti-organized crime policies.

Tax is the main source of sustainable government revenue and, in fact, the main motive for the existence of the tax system in various countries is the financing of the general administration of the country and the provision of social and economic services, but underestimating the taxes in Iran and reliance on unsustainable government revenues and public expenditure through natural resources have led to an increase in the rate of tax non-compliance. In the meantime, given the position of taxes in improving social and economic conditions, it is essential to prevent tax crimes, which is nowadays proven by the experience that there is far less cost than treatment or dealing with the offender. This study aimed to identify and propose preventive measures to prevent entry into the area of tax crimes and tax evasion. For this purpose, at first, it has tried to clarify the concept of preventing tax non-compliance by referring to the preventive measures envisaged in the tax laws and since all the legal cases approved by the law have not resulted in the complete elimination of tax crimes and the prevention of tax crimes, it has been explaining and presenting other solutions after mentioning legal provisions.

The study of effective factors in the occurrence of crime has always been the focus point in criminological enterprise. In one of these attitudes, the role of the victim and his or her specific characteristics were the focus of the perpetrator, and accordingly, the study of the victim's role in the crime led to the development of the theory of precipitation, according to which the victim could play a role with his/her acting or behaving. Meanwhile, in most of sexual crimes, the offender's motive and intention is to achieve instant gratification. Therefore, the specific characteristics of the victim are of particular importance in motivating such perpetrators. In this regard, according to the theory of victim precipitation, in sexual crimes, the question arises as to how much the victim can play a role in the occurrence of the crime by his behavior and action and consequently, precipitate the process of crime commission. With this theory in mind, and in the case of sexual offenses related to crimes and sexual victimization, the components of this precipitation can be examined based on four variables: provocation, facilitation, encouragement, and consent to the commission of a crime. The present paper concludes that in sexual offenses, the victim can play an active precipitating role in the occurrence of the crime, and this role may in some cases be so hasty that it identifies the victim as co-perpetrator.

Although the option of condition is regarded as one of the general rules of contracts, firstly it should be compatible with the nature and substance of the contract and not be incompatible with its requirements; secondly, its stipulation should not be contrary to public order and good morals. Therefore, stipulating condition option in the contract of endowment (Waqf) is invalid and invalidating because of incompatibility with the requirements of the contract, in guarantee is invalid for violating the rights of third party (guaranteed), and in the contract of marriage is invalid in that it is contrary to public order and the ruling of article 1069 of Iranian Civil Code and the consensus (Ijma') of Imamiyah jurists, but as the result of some interests, does not invalidate the contract. Furthermore, the foundation of non-operation of condition option for the renter in the contract of renting the place of business should be found in the protective aspect of the related Act in favor of the tenant class and consequently it's imperative character and mindfulness of the legislator as to economic stability. Hence, as a general rule, it could be said that stipulation of option condition is possible in all the contracts unless it is incompatible with the nature of the contract or is contrary to public order and good morals.

Bank and financial institutions panic as a result of stopping payments and bankruptcy, considering the role of financial institutions in the national economy and the systematic effects of their bankruptcy in economic, social and political fields, has caused to manage and control the bankruptcy of financial institutions and its rules apart from the other commercial institutions. in the legal system of Iran, this is basically part of the rules of the traditional bankruptcy system in the frame of joint stock companies. However the nature of these institutions and their importance in the economic system in addition, the necessity of compliance with domestic and international banking laws and regulations, requires that the rules of the bankruptcy of financial institutions will be put and applied separately. In this study, while discussing the bankruptcy of financial institutions and the necessities of the legal system in dealing with it, the bank bail entity in the Central bank policy and its legal nature and its relationship with the bankruptcy of financial institutions, was considered. Regardless of the ambiguities about the Bank bail in domestic legal system, it seems that the state of the Bank bail is not associated with the bankruptcy and dissolution of the financial institutions, but, only a certain approach by the central bank for managing and paying debts of credit institutions which are stopped. In general, given the challenges of the bankruptcy system in Iranian law, it seems that the process of passing special rules for financial institutions bankruptcy should be faster.

A mistake in the contract is a misconception of the parties or one of them about one of the elements of the contract. In the civil codes, Mistake nature and condition is usually described as a part of intention and consent title. Following the amendments in the French Civil Law (Contracts Law section) in 2016, the Mistake regulations were changed. This transformation was significant because Napoleon's code articles remained intact over the past two centuries, and interpretations by courts and lawyers in this regard have led to the formation of a different approach to the Code texts in the Mistake section; According to Articles 1130 to 1136, and then 1139 and 1144, the mistake rules are relatively more detailed than in the past. Innovative topics Such as descriptions of the circumstance that is a ground for nullity clarified of essential qualities in a contract, mistake in the subject or the law, also in the subject and the contractual person, a mistake in the motivation and mistakes caused by the fraud. Some kind of neutral errors such as mistakes in the evaluation and motivation are mentioned. The French Civil Code (1804) is the most important source of adaptation of Iranian civil law in the general rules of contracts; therefore, any review in this section can be effective in providing new interpretations for Iranian code and inspiring its reform. In this article, an effort has been made to provide a relatively accurate analysis of the current Mistake theory of French civil law.

In Iranian commercial law, there are a lot of cases in which the registration and legal announcement publication is forced by law as a necessary legal process. The most important effect of such a compulsion is that the third-party is assumed to be informed about it, so that the legislator can guarantee the trading strength and legal order on the basis of that fiction. This legal fiction could be considered as one of the main and direct effects of commercial registration and announcement, and it is applied when, on one hand, the announcement is lawful, and on the other hand, the announcement is made by a legal means such as the official journal or any other way that is specified by law. In such circumstances, even if third parties are not aware, such a claim will not be accepted in the courts. In other words, this fiction poses a serious challenge to third-party good faith in cases where the announcement has been made.

Upon declaring the termination of theproceedings, the court renders a judgement, whichcovers both the order and the sentence. Courts have the discretion to determine the type of judgementin accordance with legal criteria and to issue anorder andasentenceafter the termination of the hearing.The Code of Civil Procedure of Public and Revolutionary Courts has not definedjudgementbut in Article 299, the criteria for the judgementare specified. The actions of the courts are subject to the surveillance of the Supreme Courts;therefore, different circumstances may be brought about in the case, which are worthy of consideration and investigation in the judicial procedure.Sometimes, the Supreme Court has considered the sentenceof the lower court as an order or vice versa, and have alteredthe sentence. This article aims to examine the right criteriafor passing a judgementin the court of lawandto explainhow the Supreme Court oversees the proceedingsduring the application of the criteria and types of judgementscorrectly. It also tries to explain whether changing the lower court's judgementin the Supreme Court in with the consequence thattheorder is altered to a sentenceand vice versa have a legal basis for taking action or not? The method used in this study is the descriptive-analytical method.Therefore, referring to the legal doctrine and examining the judgements of the courts, and investigating the opinions and supervision of the lawyers and the judicial procedure the researcher tries toexplore and explain the bases for changingasentenceto anorder and vice versaand state the effects of each case.

The basis for the formation of feminism as a women's social movement was initially equality between men and women, but over time other currents emerged, some of which did not only fight for equal rights, but also held the view that women were superior to men. They were in all directions. Feminism entered the academy in the second half of the twentieth century and engaged in theorizing in many sciences. Among these, the family is one of the topics that has always been the focus of feminist theorists, and their different theories and orientations have changed the concept of the institution of the family in the last century. The present article first analyzes the two concepts of feminism and family, then examines the approach of feminism towards the family. Finally, the evolution of the concept of family as opposed to feminism will be explained. The method of this research is analytical-descriptive and the results obtained from it show that sometimes the concept of family, its structure and functions have been changed in many ways under the influence of feminism and today we see a variety of structures as family institution.

The mainstream discourses in the current century have been human rights and environmental rights. The primary responsibility for the respect and ensuring of human and environmental rights belongs to governments. Meanwhile, the role of transnational corporations in violating human rights and environmental rights is often more than governments. For this reason, today, with passing the "respect to human rights" era, it is necessary for transnational corporations to ensure human rights. In fact, transnational corporations which enjoy of community, water, air, land and other resources of the host State should take some actions for social development of the host society. The responsibility of transnational corporations in the social development of the host government is known as "Transnational Corporation Society Responsibility - TCSR". This responsibility, which includes the commitment to ensure human rights, is rooted in principles such as right to development, obligation to technology transfer, fair treatment principle and development condition in foreign investments. The social responsibility of transnational corporations is also shaped by some national law regims and international law. Conversely, challenges also threaten the social responsibility of transnational corporations such as legal problems in host and parent State of TNCs, expences and benefit formula, taxs for social development and responsible-decision maker unity. By examining the performance of some transnational corporations in realizing their social responsibility, we can see the current status of this concept in the international arena.

Developments in the Middle East began with the popular movements in Tunisia in 2010. Due to the expansion of this movement among the Arab countries, Western countries also tried to enter these developments in order to protect their interests, and the management of the route took some of these movements. Get. Meanwhile, Syria is one of the Arab countries that were involved in some unrest and protests in 2011. With the intervention of Western countries and the support of Saudi Arabia for Sunni extremist groups and the formation of a free army in Syria, these conflicts have expanded and led to Killings and bloodshed in this country Iran, due to its geopolitics and interests in this country, has tried to play an effective role in the current situation in line with its strategic interests. Therefore, in this article, Iran's interests, the role and impact of this country on the developments in Syria, how to be present in Syria according to the opinion of the international community and according to the rules and regulations of international law are examined.

Responsibility of the non-state actors in international relations, an international controversy, should be examined and analyzed, given the increasing trend of regional proxy wars. This study has aimed to explain the International Court of Justice's fundamental approach to the rules governing the responsibility of non-state actors in international relations through the Nicaragua case verdict. To examine, effective control was investigated as the principle governing governments' international responsibility concerning the Nicaragua verdict as the basis for the issuance of the International Court of Justice's verdict. Furthermore, the ruling of the former Yugoslavia's Criminal Court, in conflict with the ruling of the court, will be discussed. Finally, the necessity of a change in the approach and the rules governing the international responsibility of governments will be debated. The results obtained from the present study have indicated that the ruling procedure of the court of justice has undergone certain changes after the Nicaragua case of 1989 regarding assignment of the actions of the non-state actors to the supporting government; otherwise, international law would not be responsive to the new legal incidents and questions, rendering it ineffective in serving justice with criteria such as effective control. Thus, to guarantee basic human rights, international law must pay special attention to other numerous progressive criteria, namely overall control; these criteria shall be theorized in this section of the international law. The Nicaragua verdict is based on a realistic theory regarding international relations and international law, which could be cited as a reliable source in its own time. However, nowadays, as idealistic theories regarding basic human rights gain power, it could be claimed that the basis of the issuance of the Nicaragua verdict is not effective in explaining and analyzing the responsibility of the supporting governments and non-state actors in the violation of the humanitarian obligations.

Disabled children often need intensive health care in health system.These children suffered from long-term physical, mental and psychological disabilities that accompany with other barriers, affect their effective and equal participation in society. In addition to routine medical care that everyone need, children with disabilities need ongoing assessments and considerations by health professionals, which should continue into adulthood when the impact of the disability on their lives will change. Access to health care elements with good quality and standards is essential for the comfort and development of children with disabilities, their survival in childhood and the transition to adulthood. In this study, by examining international documents in international law, the importance of the right to health for children with disabilities and the need for the attention of government and international legislators were identified and due to the special circumstances of this group, the challenges to achieve this issue was examined.

The purpose of this paper is to understand the role of the United Nations in safeguarding and guaranteeing human rights in the business world, as well as understanding the new social responsibility of companies further to the globalization. The media regularly report on the misconduct of multinational corporations, especially in developing countries. Globalization has strengthened the power of the big enterprises while exposing poor countries to it. The United Nations has established itself as a world leader and is working in order to resolve disputes effectively, through international legislation. The questions of the present research are: 1- What is the impact of international legislation and programs set up by the United Nations in guaranteeing human rights in business? 2. Do multinational corporations really work to implement and promote corporate social responsibility to comply with international law?The company's social responsibility programs, while having a social perspective, are in line with the companies' duties to ensure ethics. In the background of the research, the evolutionary process in the development of different frameworks has been analyzed and the debates and tensions before the codification of 2011 guiding principles have been shown. It also explains the various responsibilities of companies in the new text. The lack of legal authority of the United Nations against these companies renders its actions useless, and the impact of the guiding principles is clearly limited. Companies, in turn, use corporate social responsibility programs to have a better reputation. The ethical actions expressed by their leaders are not taken into account in practice. When companies are free to do business, they break the law; because governments are either incapable of enforcing the law or not doing so. Proposals for the United Nations are to find a way to gain legal authority over multinational corporations, as well as to identify the true subjects and fraudsters of its global compact. Companies should really use ethics as a fundamental principle and belief, not a goal. This will allow companies to regulate their rules and be subject to the less pressured by international regulations, as well as design business programs that pursue sustainable economic benefits while fully adhering to human rights in business.