مجله تحقیقات حقوقی
پیاپی 95 (پاییز 1400)

In the light of advances in organ transplantation, travel for transplantation has been surging with the passage of time. Travel for the purpose of transplantation is a legitimate behavior that in certain circumstances or in the event of committing some unethical or illegal conduct becomes "Transplant Tourism". Transplant tourism has expanded largely due to the weakness of national laws and the global shortage of organs. This phenomenon has been the subject of numerous international instruments in recent decades and its prohibition, prevention, and sometimes criminalization have been stressed in this regard. On the one hand, transplant tourism is related to "trafficking in persons for organ removal" and "organ trafficking", and there is a significant overlap between such phenomena. This entails a comprehensive approach in this area. On the other hand, transplant tourism is a transnational phenomenon, and thus the participation of members of the international community is necessary to address this problem. Nevertheless, Iran, as a member of the international community, lacks a suitable approach to transplant tourism. Due to the weakness of the domestic regulations and their distance from the international community's perspective, it is essential that the legislator be involved with the issue to anticipate an appropriate approach to tackling transplant tourism. Requirements for such an approach include the definition of transplant tourism, prevention of this phenomenon, and its criminalization, while taking into account the characteristics of this phenomenon and its perpetrators.

The principle of communicating to all and the need to identify its effects for the benefit of all, and the benefit of unification of proceedings, reinforces the defense of the exigence of communicating for all lawyers and to know their right to act until another lawyer does not acted yet. The judgments of Supreme court (5th, 8th & 10th chambers) and some appeal courts in province of Tehran (10th and 49th chamber) is somehow country together, and are based on a variety of articles and principles based of Civil Code interpretation or Procedural Law Practices. Some are based on the principles and interpretations of Civil Code provisions and some have been reached to communicating to the first or second lawyer on the basis of the professional ethics of lawyers. This article reviews and evaluates their views and arguments and relies on the separation of Civil Code from Civil Procedural Law.

The public health is undoubtedly one of the instances of public interests the lack of which would impose immense harm on the very existence of the collective life. This becomes more serious in emergency situations. More importantly, if a system of prioritisation of scares resources is not devised for such conditions, numberless lives would be lost and all dimensions of the collective life will be collapsed. The basic question relates to foundations of designing a method of prioritisation and provision of medical and health services in the emergency situation and to a public health system corresponding to these foundations. Translation and transformation of those foundations and this system into legal rules and procedures form the hard core of the “public health law”. In this research, upon referring to presupposition of the current discussions, we shall put forward, respectively, the mentioned foundations and the system. No doubt, the legal system of public health is expected to strike an internal balance in this structure, and also make this consistent with other pillars of the human civic life.

An approach to the theory of civil liability resulting from the risk of harmAbstractWhenever we talk about civil liability, it is thought that the damage has been caused and must be compensated. However, foreign jurists have expressed the opinion that when the tortious act is committed, even if loss is not achieved, it will result in civil liability because it poses a risk of injury. One of these theories seeks to prove that committing tortious act against individuals is itself a loss that can be compensated. Another theory by criticizing the interference of the element of chance in conventional civil liability and its reliance on consequentialist ethics, believes that merely committing tortious act is sufficient and necessary condition for liability. As we will see, both of these theories have their drawbacks, which will make it impossible to accept them not only in foreign law but also in Iranian law.Key words: fault without harm, create risk of harm, posing at risk, consequentialist ethics

Undoubtedly, prevention of traffic accidents is of the most critical problems in our country. Although Government and governance efforts have helped to reduce the number of casualties and traffic accidents so far, the combination of these efforts in this field have not achieved a significant success yet. Hence, what is the role of government and governance in resolving such crisis? Is government the only actor of traffic regulation and safety? And in this way, is the law enforcement and employing authority accounted for the only means of regulating safe traffic? In fact, a part of the knot of this crisis could be untied through the answer to these questions. Taking advantage of the concepts of responsive regulation theory, not only will be expanded the arena for the simultaneous presence of government, public institutions and the market, but also regulatory tools will be equipped with economic and social tools in addition to authority and coercion. Indisputably, laying the groundwork for the presence of multiple actors beside putting into service the various tools will be a more comprehensive response to the crisis of traffic violations and accidents.

comparative study Responsibilities Applicant processing entity, controller and processor Under gdpr and Bill »preservation and protection of personal data«AbstractMany times Institutions that actually or potentially hold people's data Attempt to delegate the processing of data to third parties,The question that arises This is that Assignment processing What kind of service provider CanHelp protect data privacy? Vacuum addressing the definition and responsibility of the processing applicant body It is felt in the GDPR and Bill «preservation and protection of personal data». The applicant body must not only be aware of its primary responsibility, its necessary Differences in responsibilities and obligations Between controller and processor usage Also understand. The comparative review of these roles is under the GDPR and the Bill is very applicable, Regarding Assign controller and processor assignments The bill needs reform, But overall under both regulations Assign services to an independent controller It is more effective for protecting the privacy of individuals and reducing the applicant's obligations.

Article 9 of the Uniform Commercial Code of USA is recognized as a model for other legal systems by anticipating developed regulations on the security interest in movable property. One of the essential features of this article is the rules on the enforcement of the security interest and the priority of the holders of rights in a same collateral. On this basis, if debtor defaulted, the beneficiary of the collateral may personally, without interference by the court or other official body, enforce the security interest and repossess collateral to foreclosure or sell it as consideration of the debt or part of it. Performance of the conditions, such as non breach of peace, the reasonable conditions of transfer and foreclosure, is mandatory and the violation is warrantable. In relation to the priority of holders of security interest, a creditor who has perfected and registered his right prior to others, regardless date of conclusion of the security agreement. In Iranian law, action to official authorities is only way of enforcing security interest in movable property. Priority exercise on the basis of the precedence or delay of the date of conclusion of the security agreement. due to the lack of a filling system, the establishment of unified systems for registration of security interest in movable property, priority over time and granting of the right of self enforcement the security interest to the beneficiaries by considering the responsibility is offered, in order to develop the security in the movable property and financing.

Of particular importance is the description of international crimes committed by state officials in order to enjoy immunity from foreign criminal courts. With the exception of the three state senior officials known as Troika officials, other officials during their term of office and Troika officials after their term of office may be prosecuted for the commission of international crimes under the heading of universal jurisdiction prosecuted by foreign criminal courts. In accordance with the rules of customary international law referred to and stressed by the International Law Commission in the so-called Plan for " immunity of officials from foreign criminal jurisdiction", state officials enjoy immunity from legal proceedings. Some courts have described the commission of international crimes as a personal act in order to avoid impunity for these officials, even if they took place officially. The authors of the article start from the hypothesis that, in order to avoid problems related to the flight of states from international responsibility, it is necessary that the commission of international crimes by officials be qualified as a official act and in this respect the exercise of immunity is excluded. This hypothesis that is supported by the International Law Commission and the case law of some courts.

Now in the organizational structure of the judiciary, in addition to general and specialized courts, have numerous administrative organizations. Usually, each of these organizations has been formed in accordance with the goals of the judiciary. In the framework of the separation of powers, it can be said that the qualifications, functions, duties and powers and responsibilities of the judiciary, only limited to some judicial functions. In addition, some non-judicial and organizational competencies have been identified to the Judiciary under different) articles including Article 156(of the constitution. This article analyzes the subsidiary organizations of the Judiciary from the perspective of the separation of powers doctrine. The basic assumption of this article is based on the belief that the judiciary is not only a matter judicial duty and to complete the tasks of judiciary, it is necessary, some administrative and quasi-executive functions may also be performed.Keywords: Separation of powers, theory of the two powers, executive acts, Judiciary, functionalism

The rule of Dar’ applies to criminalization, sentencing, reasons for proving litigation and all matters related to the criminal phenomenon and criminal responsibility, and is one of the main foundations of Islamic criminal law. Any doubt in finding the meaning of the legislator will cause fundamental changes in the legal, material and spiritual elements of the crime and may cause behavioral prescribing. It is also based on the type of sentencing and the amount of punishment, and may cause the cancellation of punishment or change. Criminal liability is also re-read under the influence of this rule and in some cases leads to irresponsibility. The rule of Dar’ (درا) is effective in most formal and substantive matters of criminal law. This rule relates to criminal justice, the narrow interpretation of criminal law in favor of the accused, the principle of legality of the crime and its consequences, and other principles of criminal law. This rule includes all the punishments of hudud, ta'zir and qisas . This rule applies even to the rules related to diyat and is not limited to limits. In this article, first the reflection of the rule of law in the legal element of crime and then in the material and spiritual elements is discussed.

The e-commerce industry has embraced a new generation of electronic contracts since 2017, called Smart Contracts. These contracts have a broad role in consolidating the ownership rights of individuals in the blockchain. The application of these contracts in the legal system of the countries in various ways, including the expansion of exchange security, scalability, invariance, transparency and exchange efficiency, leads to the consolidation of the property rights of individuals. The mechanism for concluding these contracts is also in the allocation of licenses for the use of digital signatures and the acquisition of virtual currencies, traded assets as "smart assets," and the prediction of specific mechanisms for breach of contract terms, contractual clauses, contractual barriers and online disputes resolution, including reasons for the consolidation of property rights of people. These contracts require some infrastructures to face the challenges of the implementation of the legal system of the countries. The study, by studying the latest internationally published sources, seeks to analyze how individuals' ownership rights are established in concluding transactions in the form of intelligent contracts.

The existence of an effective labor adjudication system is one of the most important criteria in guaranteeing workers' rights, because in a dispute between a worker and the employer, the rights of the parties, especially workers, are guaranteed in the best way. Consequently, studying the other country’s adjudication systems can be useful in discovering the strengths and defaults of the domestic system. In this regard, one of the most modern labor adjudication systems belongs to Germany, which has created an independent judicial structure for labor proceedings. For the above reasons, the main question of this essay is that what achievements have the german system for the Iranian system. This research that is based on the analytical-descriptive method has investigated the position, structure, jurisdiction and, procedure of Iranian and German labor adjudication system by methodological principle in comparative law called "functionalism". The results of this study are to be outlined in three issues; the principle of judicialization and independence in labor adjudication, creating functional mechanisms for executing negotiation in pre-trial or in-trial and, making an efficient precedent that are needs of the Iranian system.

According to Article 163 of the Constitution, the qualities and conditions of a judge are ‎determined by law according to jurisprudential standards. In the written jurisprudential heritage, ‎in order to obtain the ruling of the judiciary, the fulfillment of conditions such as "born purity" ‎has been considered necessary, and this is reflected in the regulations for the recruitment and ‎employment of judges (approved in 1392). The implication of this statement is only that ‎persons born out of wedlock (natural children) are deprived of this social right and cannot be ‎placed in this position. Needless to say, such an attitude stems from the generalization of natural ‎parental error behavior to the individual; This is apparently not in line with the principles of ‎justice. Considering the importance of the discussion, the Considering the importance of the ‎discussion, the present article has criticized such a view based on jurisprudential documents. It ‎is clear that the result of the research, in addition to correcting the jurisprudential view, is to ‎answer some theological questions and doctrinal doubts. The findings of the research show that ‎the documents provided by the jurists are not sufficient to prove their claim and as a result, the ‎validity of such a condition lacks the necessary legal validity.‎

There is no doubt in this issue the defect of compensation in fact is defect of goods liability but there is disagreement about nature of it, that is contractual liability or non-contractual liability and if it is a contractual liability, is it physical liability or mental liability that were referred to it by some eminent Islamic jurists or it is a legal damage. The results of discussion appear in this issue that if the the orderliness of the goods is considered an essential condition, the lack of it ,is an indication that the Seller did not satisfy his/her obligations and therefore the contract is invalid. and if the orderliness of the goods is part of it, discovery of defect generates an option of termination. This article is about analyses of such discussion with study in view of civil code and in finally we deciding proved that the defect of compensation is based on legal damage.

The growing various damages caused by environmental pollution, the wide range of victims, the multiplicity of defendants that create pollution on the one hand, and the renewal of domestic law in providing appropriate grounds for imposing civil liability on environmental pollution on defendants and the ineffectiveness of existing temporal environmental statutes in providing apposite ways to prevention and compensation solutions These losses, on the other hand, necessitate the study of the grounds for civil liability arising from environmental pollution in the laws of other countries; This article seeks to study US legal’s doctrine in the field of civil laibility of environmental pollution and usage in legal decision to creating legal convergence to illustrate the strengths and weaknesses of this doctrine. According to this study, the US legal’s doctrine despite its shortcomings has been interpreted and empeloyed appositely by judges and lawyers and covered many of the necessities in the field of environmental liability basics.