مجله پژوهشهای حقوقی
پیاپی 57 (بهار 1403)

Genocide is one the most important International Crimes that has been adopted by the Rome 1998 Statute of the International Criminal Court and set out punishment for it in this international instrument. The crime of genocide has been conceived as mother of crimes in the doctrine. Taking place this crime in China against Uyghur Muslims has been under debate in these years. Recent report of Newlines Institute for Strategy and Policy about the Uyghur genocide allege signifies important of the issue and has attracted attention of the media and global society.This article attempts to investigate the issue through scrutinize the questions bellow: has the Actus Reus of the crime of genocide in events sequence concerned with Uyghurs proven? Does it verifyrequisite jurisdictional threshold for initiate investigations by the Prosecutor of ICC? What is the responsibility of Chinese authorities for the crimes mentioned above?In this article, intellectual effort was exerted in order to reach valid answers for the questions about the Uyghurgenocide in Xinjiang region. Based on the documents and reports of different International authorities and organizations, it was revealed the the Actus Reus of the genocide was committed.Although normative and legal possibilities in Rome Statue provides proper conditions for investigating the issue, a bulk of practical obstacles and serious impediments cause the ICC prosecutor refrain from carrying it out. This study also confirms Chinese officials’ international criminal responsibility- at the national and local level- and their mercenaries’ for the Uyghur genocide.The method used in this study is analytic-descriptive one specially analysis related international documents and reports in order to evaluate elements of the crime of genocide.

The victim is an element whose rights have been violated by committing a crime. Although it seems obvious that the perpetrator of the suffering of crime is the most important element of the criminal justice process, this notion has not always been realized not only in domestic law but also in international criminal law. Despite the neglect of the victim in the documents of the old specialized international criminal courts in the new generation of these courts and especially in the law and procedure of the International Criminal Court, the victim has enjoyed an important position in the preliminary investigation, trial and execution, but the challenges and shortcomings There are some in this regard. Deficiencies that must be judged in terms of important developments in favor of the victims. But one cannot ignore the fact that the Court has greatly curtailed the historic opportunity to grant criminal justice to individuals in the international community against perpetrators of international crimes.

Following the genocide in Rwanda that killed one million people, the Rwandan government turned to Gacaca courts, which are rooted in the culture of all the people of Rwanda, in order to expedite the prosecution of those involved in this humanitarian catastrophe and reduce the prison population. In order to adapt these courts to the conditions of the crimes committed, the Rwandan government made several changes in these courts, which according to many, changed its traditional and informal nature and brought it closer to the criminal courts. This intermediate mechanism, in addition to having gains and advantages as an alternative judicial response, has also caused concern and criticism from a human rights perspective. The present article examines this intermediate mechanism and its positive and negative aspects from a human rights perspective.

Freedom of association is one of the most important human rights of human beings, which also plays a serious role in the demand and realization of other human rights. In many cases, these rallies are held to protest participants against the government's policies. The peaceful holding of rallies and the important role played by the police and other security forces in securing them are among the important issues that need to be addressed. In some cases, some participants in peaceful rallies may resort to violence and the police may be forced to use force to maintain order and security. The fundamental question of this article is what are the powers and obligations of governments, especially in the use of force to control peaceful assembly? The research method of this research is analytical-descriptive and the method of collecting information is library. The results of this study show that Iran's domestic regulations are generally in line with human rights standards, but in some cases, there is a conflict between these regulations. In Law on the Use of Weapons by Armed Forces Officers, the police appear to use weapons to control illegal assemblies if other means are not effective, but in the human rights system, police can use force only in cases of legitimate self-defense.

The study of law and development coincided with other issues of development in the twentieth century, and the first and most important question that occupied the minds of jurists was whether law and development are fundamentally related, and if the answer is yes What would be the relationship like in the development process? There are two general approaches to the relationship between law and development: the first group considers development as a function of other elements by assuming law as a dependent knowledge. According to this category, development and its components determine the rules and norms of each society's legal system. In contrast, law has no power to influence the development process but rather becomes flexible according to economic growth, political will, or cultural context. Another group tried to show the independence of law from the other components of development by questioning about the subordination of law. Everyone has not followed the same path, but someone introduced law as an instrument for development and another as a framework for it. As the concept of human development expanded in the 21st century, the relationship between law, and development took on a new form and development was closely linked to the logic of law, ie justice, and law, in addition to its instrumental and institutional role, converted to one of the goals of development.

One of the principles of fair proceedings is the principle of documentary and reasoned judicial decisions. The importance of this principle is so great that its failure to be considered by the judicial authority has been identified as one of the cases of voting violations. Given that the observance of this principle has been emphasized in the constitution, civil and criminal procedure, and even as an accepted principle in quasi-judicial authorities, such as the law on handling administrative violations, the law on handling violations of the armed forces, and the tax law. is, the analysis of the nature of the words documented and substantiated to explain the difference between the two in order to resolve some ambiguities is considered one of the goals of this article. This research, which was carried out with a descriptive-analytical method, shows that the explanation of each of the two words and the purpose of the legislator regarding these words is a legal gap that is considered necessary to be addressed. Therefore, it can be said that created causation, inherent authenticity, objective process, credibility in judicial matters and the judge's responsibility to discover the facts are considered to be documentary features, and in contrast to demonstrative causality, fake authenticity, mental process, credibility in subjective matters. And the claimant's mission in this field are considered to be well-reasoned approaches.

The precise and fair implementation of laws in the judicial policy of legal systems is inevitable. In two-value or Aristotelian logic, the foundations and principles of science are subject to a fixed rule that thing is either right or wrong. Fuzzy thinking in the interpretation and explanation of laws, both quantitatively and qualitatively, represents a special framework in the purposeful examination of ambiguities and uncertainties. Fuzzy thinking represents a special framework for the purposeful study of ambiguities and uncertainties in the application of laws, both quantitatively and qualitatively, therefore, the design of fuzzy thinking in measuring and explaining criminal and legal matters can be very effective in advancing towards criminal justice. Because the logic used in our laws, which has its roots and precepts in Islamic law, is multiple logic, and propositions and legal materials are often graded and used continuously with variables as examples. This study aims to try a new approach to explaining and interpreting laws based on fuzzy thinking in times of ambiguity and complexity and to help build a logical and equitable framework that leads to the development of rules based on legal variables and components. The result is that with the theory of explanation and interpretation of the existing laws based on fuzzy thinking, as well as the design and implementation of the fuzzy judicial system with the help of experts, it is possible to progress towards a more accurate and fair judicial system. Because the thinking and subjective criteria of the judges in interpreting the laws can be fuzzy and the judges also issue more fair verdicts. For example, to prevent crimes leading to imprisonment, which will reduce the number of prisoners. Therefore, the fuzzy thinking plan in evaluating and explaining legal issues can be very efficient in moving towards criminal and legal justice.

Frequent judicial decisions in similar cases are known as judicial procedure. This event, as one of the sources of law, has a significant role in the development and excellence of the rights of societies. But one of the questions that has always been asked is why judicial procedure in the general sense has not had a proper place in Iranian law? Since Iranian law originates from Islamic jurisprudence, the reason for this is the incompatibility of jurisprudence with Islamic rules, to the extent that a number of jurists have denied the principles of jurisprudence in Islamic law. While examining the conduct of the wise and its authority from the perspective of Imam Khomeini and some experts, the functions of the judicial procedure were also explained. It is considered and thus can not be considered an obstacle to the application of judicial procedure in the general sense (rule-making procedure) in the Iranian judicial system.

Public interest litigation (PIL) emerged as a distinct form of litigation originating from the historical trajectory and legal context of the United States. Initially shaped by America's legal associations and rooted in the civil rights movements of the mid-20th century, these litigations addressed the shortcomings in traditional democratic models. They serve as a mechanism to uphold the assurances enshrined in the legal framework, such as the Sani Law, catering to classes and individuals deprived of fundamental rights and human dignity. PILs are instrumental in granting marginalized segments of society access to judicial justice, primarily focusing on the safeguarding of their fundamental rights and the rectification of legal ambiguities. Moreover, they aspire to instigate 'social change,' where the outcomes extend beyond individual cases and can be applied to similar situations, amplifying their impact. Advocating for human rights principles stands as the underlying motive and impetus behind such petitions. Various nations, including India, have adapted and refined this litigation model to suit their distinct social contexts and legal structures. Notably, in India's legal system, the Supreme Court judges have spearheaded innovation, particularly in relaxing the stringent requirements for the plaintiff's general authority.

Among the various branches of the humanities in different societies, no science can be found that is not significantly influenced by the original knowledge of history and the ups and downs of the times; And the passage of time has not affected history for a long time. In the meantime, the science of law is no exception to this rule, and this knowledge and everything that belongs to it has also changed over the course of history. Legal history forms a major part of the history of civilized societies; And being aware of the evolution of any civilization also requires a correct understanding of various legal issues in the past. In order to see how the issue of delaying the trial or prolonging the process of hearing people's cases in the courts has been raised from the past to the present and what solutions have been resorted to deal with it, in this article, which is a study between the history of civilization and law, We will address this issue. Therefore, since the historical constitutional revolution became the source of important changes and developments in the Iranian legal and judicial system, we examine the issue of solutions to deal with the delay of the trial with the temporal focus of the constitutional revolution in the history of Iran.

By the end of 2020, the unknown and contagious COVID-19 virus had spread across the globe. Failure to follow health instructions and the ambiguity of the nature of the virus caused it to infect every single citizen in a short period of time and even lead to the death of vulnerable people. Nearly two years of experience in medical research and humanities findings show that in addition to the measures of government institutions, it is the people and civil society who can be very effective in breaking the chain of transmission, and with self-care, social oversight and collective responsibility Manage. However, improper performance of people in observing the necessary health instructions and care can, in addition to the criminal title of threat to public health (subject of Article 688 of the Islamic Penal Code adopted in 1375) and also the Act on the prevention of sexually transmitted diseases and infectious diseases approved in 1320, in some cases lead to death, disability, or benefit of other persons. It also leads to intentional, quasi-intentional or pure error, depending on the case. Government criminal policy by legislative, judicial, and executive methods alone is not effective in counteracting such criminal titles, and the components of participatory (comprehensive) criminal policy need to be expanded. In fact, the purpose of this study, which has been written in an analytical and descriptive way, is to find a significant answer to the question of the effectiveness and ineffectiveness of participatory criminal policy in controlling and combating the virus.  Participation as an effective and efficient method in today's difficult campaigns such as Corona.  As a rule, the hypothesis of this research that the effectiveness of these components has been proved in the following and can be implemented by taking measures at different levels of government and people. Therefore, the application of this research can be hoped to eliminate the damage of Covid virus 19 and prevent, control and deal with its spread and contagion.

For many years, Western and Eastern Judges and Lawyers have differed on the nature of the bank's Safe deposit box contracts. They assess the nature of the present contract on the basis of legal relations and, according to it, discover the will of the parties. Some have accepted the relationship between the client and the bank as bailor and bailee, some offered lessor and the lessee, and others advised the indefinite contract as the nature of this contract. Of course, in the case of an indefinite contract, some authors consider this contract to be a mixture of bailment and lease. In this paper, in a descriptive-analytical, inferential, and practical aspect regarding Bank-e-Melli’s contract with the clients, we have firstly answered the main question of which relationship prevails between the National Bank and the clients and secondly is the indefinite contract a mixture of the two main effects of bailment and lease or not? Generally speaking, the answer to the first question is that the contract governing the relationship of the two is indefinite and the answer to the second question is negative.

Changing or correcting the date of birth is one of the important and basic issues in the field of civil law, which despite its importance and many plans in the administrative and judicial courts, has not been sufficiently considered, examined, and explained, therefore, its realization is necessary according to the case. Legal conditions are possible through three references and five methods. One method is to act through the commission to determine the age of the subject of the single article of the law on preserving the validity of registered documents, etc. Another method is to request the Dispute Resolution Board of the Civil Registry Office and the third method, which is actually the continuation of the process of obtaining the right through the previous method, is to protest the decision of this authority before the court and request its violation and accept the request from the court. The fourth way is to file a lawsuit to change or correct the date of birth before the court and the last method is to file a lawsuit to cancel the current registry document and issue a new registry document with the actual date of birth before the latter authority. In all cases, according to its type and the competent authority, the request is subject to the fulfillment of legal conditions and the presentation of justified evidence to the investigating authority.

Today, in the common law system, in order to secure the interests of the shareholders and preserve the company's information, compliance with the "duty of loyalty" is considered the most important regulation for managers. This regulation plays an essential role in the compliance and compatibility of managers' obligations with other legal systems. Based on this, considering the foundation of this concept based on the fiduciary principles in the common law system, it can be used as a fundamental concept in the corporate law of Iran and other countries. In addition to the fact that the rules of corporate governance and the theory of the independence of managers are the result of the development and impact of the Common Law system in the matter of fulfilling the duty of loyalty and dealing with conflict of interests, the penetration of these rules into Iranian law in the laws of commerce (1311 and 1347) and the securities market (1384) ), in addition to checking and legal review, it sometimes requires revision and modification of the texts of these laws. In this research, for the first time, relying on the analytical-comparative method and after stating some key issues, it is attempted to investigate and analyze the way to ensure the duty of loyalty and at the same time the examples of its violation, in the issue of conflict of interest management and information preservation. Legal solutions companies should be inferred.

When the obligee does not collaborate with the obligor based on good faith in any steps of the contract including formation and execution or even after contract breach and this causes or increases losses, then that situation gives rise to the concept of the fault of the injured party. Therefore, if the obligee and the obligor jointly cause or increase losses, then the concept of contributory negligence, or comparative negligence according to the US legal system, should be considered. The present paper aims to conduct a comparative study on contributory negligence in contract law together with an analysis of relevant domestic and foreign opinions. It is concluded that in the US legal system, contributory negligence is usually dismissed in the field of contracts; but "reasonable reliance" and "predictability" have efficient similarities to the contributory negligence concept and this fact reveals traces of contributory negligence in the US legal system. However, in the Iranian legal system laws indirectly imply this concept and the presence of contributory negligence in the Iranian law can also be confirmed based on analogy, ascertainment, good faith, and purpose of law and the fact that this concept merely mentioned with regard to some laws, can be explained based on the Islamic prevalence rule (Qalabah).

A graphical user interface is a fundamental part of any software application as it enables users to interact with an application’s functionality, allowing interaction between computer software and hardware. The hybrid nature is a feature of GUIs. Therefore, it can qualify for all three forms of intellectual property protection: patent, copyright, and trademark. Each of these three forms has its pros and cons in terms of protecting graphical user interfaces. However, industrial design rights eventually seem to be the best system for protecting graphical user interfaces. Therefore, this study mainly focuses on the industrial design protection for the GUIs as well as the industrial design protection of GUIs in WTO member states, and in some cases, a comparison has been made with the Iranian legal system. A review of different legal systems indicates that in cases where the user interface is to be supported in more than one country, and at the international level, some points such as the scope of protection, filing routes and priority rights should be considered, and suggestions have been presented for modification of the protection system of GUIs as well as synchronization of protections. Furthermore, there are legal issues with respect to cloud computing and graphical user interfaces that need to be considered, including the protection of the intellectual property of both the user and the provider.

The civil responsibility of the doctor in Iranian and American law is based on the theory of fault. With the difference that according to Article 495 of the Islamic Civil Code, the fault of the doctor is assumed and he must prove his innocence. According to the Good Samaritan Laws, to remove the civil and criminal liability from the doctor, the mere act of good faith is sufficient, provided that he has not committed a gross fault, even if there are emergency conditions in the hospital environment or outside of that environment. According to Iran's laws - based on Article 509 of the Islamic Civil Code - including the implementation of the rule of beneficence towards the doctor and the loss of the guarantee from him, in addition to having good intentions, this means that he should not commit fault and aggression in practice. The mere act of good faith only causes his criminal liability (and not civil liability) to be removed. The prohibition of beneficence in citing harm to the benevolent doctor and the conventional proportionality between benevolent action and avoided harm are among the elements of benevolence.

The expansion of government activities and the development of administrative structures for the provision of public services and the fulfillment of the economic, cultural, and social rights of the people require that there be costs in return for the provision of these services; The judiciary is one of the public services to which the government owes and the belief that litigation is free should be discarded, but the costs of resolving disputes should not be such as to undermine the principles of fair trial or impose a financial burden. Impose a burden on plaintiffs. The provision of judicial services cannot and should not be sought only to generate revenue and neglect other purposes of litigation; Attention to goals such as reducing lawsuits, directing people to alternative institutions by gaining their trust in the judiciary, improving the quality and quantity of proceedings and rulings, and finally the satisfaction of the parties to the dispute and the outcome of the lawsuit, can provide the necessary income. The judiciary also guarantees its social goals, and in fact, with a comprehensive view of all goals, it is possible to provide a suitable criterion for determining the costs of litigation, and in this regard, legal principles should not be violated.The present research has been descriptive-analytical and with a documentary and study method, with an applied purpose, the effect of litigation costs on the principles of fair trial and a critique of the approach of the legislature and the judiciary towards this institution.