نشریه دیدگاه های حقوق قضایی
پیاپی 101 (بهار 1402)

Among the contracts in law and jurisprudence, there are still contracts that, despite their applications, remain unknown and unused because they have not been properly introduced. One example of such contract is the Habs contract whose framework, which also defines it, is dealt with ambiguously and summarily. The ambiguity is easily noticeable in the conflicting opinions of jurisprudents, which baffle the readers and have led to jurists either ignoring it or touching upon it most briefly. The lack of literature on this concept has caused this useful contract not to receive the attention it deserves, and it is even classified as an innominate contract by some jurists, and summarily tapped into by legislators. Therefore in general, we face a challenge in knowing it, its rules and position and applying it. To respond to this challenge and establish a framework for the Habs contract, it is necessary to first explain the correct concept of Habs in jurisprudence and law and identify its position in the Iranian Legal System. Therefore, this paper intends to bridge a gap in law and jurisprudence, compensate for the brevity of law, resolve the ambiguity and obscurity, delineate the concept of Habs, and, finally, identify and stabilize the position of this useful contract in Iranian Law in terms of recognition of rules and effects in statutory laws. The current descriptive–analytical study first distinguishes different types of Habs contracts by categorizing various jurists’ and jurisprudents’ opinions in this area and criticizing them, and then arrives at a proper definition of Habs in common, general and particular senses. Afterward, using the insight gained about Habs and considering the requirements for a contract to be nominated, the position of the Habs contract is established in the Iranian Legal Systems as a nominate contract in the light of relevant rules and regulations.

In the Code of Civil Procedure, rights are considered for the petitioner, which will be possible to be raised until the end of the first hearing. These rights are generally interpreted as additional lawsuits. In the Code of Civil Procedure, only one article has been dedicated to this issue and it has only mentioned examples such as reducing the demand, increasing the demand, changing the way of litigation, changing the demand and changing the request, and it has not explicitly stated how to implement each one. The increase in the demand will appear only in the form of adding to the amount of the demand in the original petition and without observing the usual court procedures, while the additional lawsuit along with the new petition will be raised by the petitioner and in fact, with this action, a new lawsuit will be established for the employment of the court. Certainly, these two different views can have a tangible effect on the jurisdiction of the investigating authority and the ability to complain about the issued decision. While looking at the existential philosophy of these two concepts with some new legal conclusions, by proposing "removing the term of increasing demand and establishing an independent single article" in the current judicial system, this article tries to take a small step in explaining and presenting a desirable pattern of increasing demand in the country's legal community.

In jurisprudence, it is seriously spoken about the difference between confession and testimony and the distinction of confession in validity and effect, in such a way as to prove the issue without the need for a ruling. In the laws, the legislator's expression in Article 1275 of the Civil Code and declaration of the non-objectionable (appeal and appeal to the Supreme Court) documentary evidence of confession in Articles 331 and 369 of the Civil Procedure Code shows the special attention of the legislator for this reason and the establishment of special validity and effect for this reason. Accordingly, the special condition of confession compared to other reasons and the basis for such a distinction is an important point that needs to be analyzed. Research in this regard leads us to the conclusion that what has caused the distinction of confession from other evidence and its special validity and effect is that, unlike other reasons, the confession is the reason that is prepared and presented by the person who is the reason against him and contains the acceptance of that person that causes the resolution of disagreements and the coordination between the parties to the dispute (in relation to the subject matter).

Today, artificial intelligence is effective on many aspects of the human’s life. The cause can be known the speed and accuracy of artificial intelligence in the processing of a huge amount of data in a short time and consequently increasing of speed and accuracy in of human affairs. One of these aspects is the use of artificial intelligence in judicial proceedings. The speed and accuracy of artificial intelligence, in addition to the elimination of trial prolongation, leads to the minimization of damages of human fault in trial. But, despite these advantages, the special nature of artificial intelligence and its huge amount of data, causes the lack of enough transparency in its operation. So the entrance of artificial intelligence in judgeship, despite high desired advantages, can lead to loss of transparency in judicial proceedings and raises the fundamental challenge of how to minimize the adverse effects of lack of transparency while enjoying the benefits of artificial intelligence in judicial proceedings? With respect to all aspects, “supervision” in various levels of design, training and use of artificial intelligence is the best solution in this way. An appearance that can be done from different dimensions, in different stages and by competent institutions.

The proportionality of the punishment with the amount of the responsibility of criminal  in the committed crime is a rational principle in the Diyat. This means that the amount of personal responsibility in paying Diya for a more serious crime should be more than for a milder crime. The implementation of this principle requires the preparation of preliminary documents that Islamic jurisprudence and legal issues along with medical science can determine the most appropriate punishment based on the degree of responsibility for crime. Bone injuries are one of the subjects of the Diat book, and the implementation of the principle of proportionality in it requires a precise definition of bone injuries and the scope of each of the listed bones and injuries. Although in Fiqh, the Diya of some bone injuries is mentioned, but with the advancement of science, many bone injuries have been mentioned in medical science with the help of imaging, which reconciliation of medical injuries with Fiqh and law requires the determination of the scope of concept bones and the definition of its injuries mentioned in the narrative texts as The subject of rulings and then is matching the injuries in medical science with it. According to the law of criminal procedure, the investigator must obtain the opinion of a forensic doctor or invite them as the case for examine injuries, marks and signs of beating and physical injuries.In the narrative-fiqhal texts as well as legal texts, the ruling is referred to as the bone, which includes all its parts. While referring to the forensic medicine procedure in issuing certificates, we see some decisions being made that are different from what is mentioned in jurisprudence and legal texts. Also, in medical science, nearly 20 types of bone injuries are considered, but bone injuries are mentioned in Fiqh with much more limited titles. The comparison of bone injuries from a medical point of view with Fiqh has been done in a tabular format which can be used in the judgment to punish according to the amount of life responsibility by determining the severity of the injury based on the injuries mentioned in the Fiqh as an indicator, which can be used by the judge in issuing judgments or investigations or examining Actively in forensic medical certificates.This article, in a library form, examines how to adapt the scope of bone inclusion and the concept of its injuries from a medical point of view with Fiqh and jurisprudence as a prelude to the implementation of the principle of proportionality of punishment with the amount of responsibility in compensation o bone injuries.

Considering Article 18 of the Law on Establishment of Public Courts and Revolution and Article 477 of the Criminal Procedure Law, the legislator has planned an extraordinary method called resumption of proceedings through the head of the judiciary. Although this method can have advantages in terms of preventing the survival and implementation of incorrect and illegal decisions and verdicts, it faces many ambiguities and criticisms. The principles governing the proceedings in Iran, such as the principle of correspondence and the two-stage principle of substantive proceedings, remain intact in this procedure, the rule of the validity of the adjudicated case upon or “ res judicata” and the inherent difference between the ruling and the order and several ambiguities remain open in this regard.In addition, the analysis and review of the independence and impartiality of the Supreme Court and its relationship with the Lower courts and the head of the judiciary can be considered in explaining the criticisms received, which should be reviewed in this type of retrial. This article, with emphasis on judicial procedure, examines and criticizes the retrial of Article 477 of the Civil Procedure Code from the perspective of the principles of civil procedure and presents the necessary solutions for the legal system of our country.

According to Article 391 of the Civil Code and the unified judgments 733-1393/07/15 and 811-1400/01/04 of the General Board of the Supreme Court, if the sold things has been determined as belonging to another, the sale contract is null. Therefore in case of unawareness of the buyer, the vendor must pay the difference through price which is paid as consideration and the actual value of the sold object on the day of sale as compensation in addition to returning the price. The apparent interpretation of the aforementioned provisions limits them to the nullity of the sale contract due to unauthorization regarding the owner's rejection. But firstly it’s good to know that nullity causes damages in other types of contracts rather than sales. Then it should be known that nullity can be caused by reasons differing from the cause of belonging to a third party. Thirdly, must be said that the contract may cause damages not in terms of nullity, but in other types of dissolution. This research aims to answer the question whether it is possible to apply the provisions related to the damage caused by the nullity of unauthorized sale to other cases of nullity and dissolution of all contracts or not? And assuming the answer to the previous question is positive, what are the examples of the implementation of the aforementioned provisions? The collection of information in this research is library-based and the method of presenting is analytical.

Smuggling is a type of undesirable trade that ignores trading regulations and disrupts the country's economic development goals and plans. In the legal texts of our country, some examples of smuggling are known as violations and some of them are called crimes. The current research, which was carried out by descriptive-analytical method, has shown that goods smuggling occurs in two ways: by abusing the intelligence of the perpetrators and by relying on the physical strength of the perpetrator. Although at first glance it seems that the criminalization of smuggling has been done to protect the financial rights of the government and prevent the perpetrators from evading customs duties; But a closer look at the examples of this crime shows that there are several reasons for smuggling criminalization; Such as providing public health, protection of natural resources, preservation and protection of national and religious identity. The purpose of this article is firstly to criminalize all examples of smuggling and secondly to determine differential punishment for different forms of smuggling in the legal texts so that each form of this crime be answered according to the range of evil effects it leaves behind.

The repetition of a Hadd crime in jurisprudential-legal terms means that a person commits the same crime again after committing a Hadd crime and tolerating its Hadd punishment. Repeating a crime indicates that the offender has not been reformed and it is necessary a more severe punishment. The legislator of our country, while accepting the rule contained in Younis's Sahiha, which refers to the killing of the Ashab Al-Kabaer for the third time, has imposed this rule the fourth time by applying the rule of caution in blood. Therefore, the aggravation of the punishment for the repetition of Hadd crimes should be done only within the framework of this rule, and the requirement of the principle of innocence is that if a case does not have the conditions of this rule, he will not be killed. Apostasy, as one of the Hadd crimes, has different punishments depending on the perpetrator and the type of apostasy. In this article, while explaining the different views, it will be examined how the repetition of apostasy Hadd crime, whether it is committed by melli or fitri or by man or woman, does not fall within the framework of this rule and its repetition will not lead to killing.

Domestic violence, as the most common type of violence against women, is any type of gender-based violence that leads to physical, sexual, or psychological harm to women, or increases the likelihood of its occurrence in women, or actions that are painful for women, or to the forced deprivation of individual freedoms or social leads. Although this type of violence usually occurs in the privacy of the family; But they affect women's lives in all public and social fields. Therefore, it leads to destructive consequences within the family, society and hinders economic-social progress. In this article, the criminological investigation of domestic violence and its causes and factors is discussed; We also aim to find the connection between this issue and the phenomenon of divorce through a field investigation and reach practical solutions on the issue and provide executive suggestions to the legislators and the judicial system to implement it. The method of collecting information in this thesis is library method and field study is also used through questionnaire tool. The statistical population of this study is women who have been subjected to violence by their husbands and intend to separate and divorce by filing a case in the family court of Tehran.The result obtained from the survey of the questionnaire is that the factors that we investigated were all effective in the issue of violence and ultimately led to divorce in cases where some factors were more related to divorce and were discussed in detail. Also, at the end, some suggestions are mentioned.

The right of attribution or the right of the creator's name and title on an intellectual work is one of the most famous moral rights that is accepted in the intellectual property laws of our country. Based on this right, the creator can present his intellectual work to the public with his real or pseudonymous name or without a name, and on the other hand, other people are obliged to respect the said situation and avoid any kind of seizure of the right of the creator. In addition to the fact that jurisprudence is one of the most effective branches of Islamic sciences in the Islamic society and is decisive in drawing the Islamic lifestyle, the basis of the laws in the legal system of the Islamic Republic of Iran on the holy Islamic law and the position of jurisprudence in validating legal rules, makes clear the necessity and importance of presenting this jurisprudential perspective. In the present study, by analyzing the verses of the Holy Qur'an and the traditions issued by the Imams of the Infallible Imams, peace be upon them (narrative evidence), which are library sources, an attempt has been made to explain their implications on the dimensions of this right. In total, the implications of eight categories of verses and documents and the implications of five narrations on the right of attribution have been analyzed. Verses indicating the prohibition of betrayal and the necessity of trustworthiness, verses related to justice and fairness, verses prohibiting slander and lying, and verses on the obligation to documented and substantiated speech, and a part of the letter of Amir al-Mu'minin, peace be upon him, to Malik Ashtar, the narration of the Lies that prevent the acceptance of speech, and the narration indicating The necessity of attributing speech to its speaker, Among them, there are anecdotal evidences in which many aspects of the right of attribution are legislated. Key words: right of attribution, Quran and Sunnah, moral rights of creators of intellectual works, intellectual property.

When the parties enter into agreements in the contract, the obligations arise and the agreements may not be implemented as expected by the parties, in which case there are damages from breach of contract. Compensation requires determining the extent of compensable damages, foreseeability of damage is a criterion for determining the extent of damages. In Iranian law, influenced by fiqh sources, there are two sources for determining the liability: usurpation and opposability, damages resulting from a breach of contract are not separate from the opposability, The relationship of legal causality, which requires a proportionality between damages and breach of contract, which justifies by foreseeability of damage. This kind of approach is contrary to the originality of the contractual liability, which considers the provisions of the contract time as a criterion for determining the extent of damages. There is no provision in Iranian law that determines certain characteristics for the ability to predict damage in contract law. In French and English law, the contractual responsibility is predicted and in French civil law and the English judicial procedure explicitly the time of the contract is unique unless it has a deliberate intention to violate its obligations.