مجله حقوقی دادگستری
پیاپی 126 (تابستان 1403)

There are two opinions about the effect of termination of the contract on liquidated damage clause, it's non_fulfillment or it's delay in fulfillment. the first opinion is the lapse of the clause due to the termination of the contract and the second is survival of creditors right about demanding the liquidated damages. In this article with a comparative method ,aforementioned issue has been studied in the jurisprudence of Iran, France and England and the findings indicate differences between the courts opinions of these countries. Supreme Court of England ruled based on the first opinion and it didn't accept substitution of the creditor Unless the parties have explicitly stipulated it in the contract.In French law, some courts consider the obligation to be an independent clause of the contract, which can be survived even after the termination of the contract.But some of the jurists believe that liquidated damages for non-fulfillment of the obligation can be demanded even after termination of the contract; However, delay liquidated damages are not claimable after termination of the Contract. In Iranian's Legal Precedent System, many differences of opinion have arisen But it seems that the final criterion in this field is the intention of the both parties However, as a whole, the distinction presented in French legal doctrine can also be applied as a guide in Iranian law.

In the eyes of jurists and jurisprudence, it is obvious that the government, governmental institutions, and legal persons cannot claim insolvency from the cost of litigation. Regarding some historical records, legal points, and practical considerations, revising this obvious idea is a necessity. The possibility of claim of insolvency from the cost of litigation is one of the prerequisites for a lawsuit, and the reasons expressed in justifying the deprivation of this right from government agencies are not convincing. Also, the government's financial ability and the huge amount of property of this legal person do not mean the ability of its components to pay the huge expenses of litigation. In addition, the budget restrictions and rules governing the governmental property sometimes make it difficult or even impossible to pay the unforeseen expenses of the trial. Since the hearing of this claim is not prohibited by the laws and does not contradict legal principles too, thus it seems that depriving the ministries and government institutions to prove their insolvency from paying the cost of trial is illogical. Prohibition of government agencies from proving insolvency in paying the cost of litigation requires undesirable sequences and damage to the government's rights and is an obstacle to the equality of persons in a fair trial and access to justice. The purpose of this lawsuit is to preserve the government's rights and get time to pay the legal fees, and its acceptance will be temporary and conditional.

In Iran's legal system, binding judicial precedents should be sought in Unified Judicial Precedent. Therefore, Unified Judicial Precedents are considered as the main sources of law. Now, if we believe that the precedent is formed due to stability and continuity; Requiring all judicial authorities to follow a certain interpretive opinion that is issued a few months after the approval of the law cannot be considered a "precedent". Because, in this sense, the interpretation position of the Supreme Court has been reduced to legislation. Considering the mentioned criticism, present research has tried to analyze the content of fifty-eight Unified Judicial Precedents issued between 1392 and the end of 1401 Solar Hijri, while explaining the philosophy and position of the Unified Judicial Precedent, classifying the Unified Judicial Precedent, and extracting the components criminal policy of the Supreme Court of Iran. These components include the lack of regulated methodology in interpretation, adopting a lenient criminal policy and violation of the law. In addition, the reasons for the large number of Unified Judicial Precedents, in the above-mentioned duration, are minimal participation of executive agents in the approval of laws, dispersion and experimental nature of laws, and the lack of coherence between legislative and judicial criminal policy.

The imperative for the protection of intellectual property rights concerning computer programs arises from their pivotal role in modern society and the considerable resources invested in their development. However, there are ongoing movements advocating for the release of certain software outside the traditional economic paradigm of intellectual property, promoting the concept of open-source software. Advocates of these movements emphasize the importance of user freedom in both the development and application of software. As a result, users must accept specific contractual terms when utilizing the software, which regulate modifications and redistribution. While some international courts classify such software within the intellectual property framework and subject it to applicable legal rules, a majority of legal scholars contend that these protections are more appropriately situated within the realm of contract law. This article investigates the validity of such contracts within the context of Iranian law, assessing their classification among conventional contract types. The research ultimately concludes by affirming the legitimacy of these contracts based on their intrinsic stipulations.

In case of bodily injury, whether intentional or unintentional, or simple mistake (pure mistake), the holy legislator )Holy Sharia, Allah as the law-giver) and according to it the legislator, has determined the limb retaliation, the limb blood money or corporal crimes compensation, or its benefit. However, compensation for beauty is not explicitly stated in the statute, and the recovery of injuries along with the ugliness of the face has not been explained, and there is no document on whether beauty is a benefit. Therefore, it is not known whether it is possible to claim compensation for the loss or decrease in beauty, in addition to the fixed blood money of the limb, or where the limb does not have the fixed blood money, is it possible to receive corporal crimes compensation or more than that or not? To answer these questions, reference was made to the library sources of Sunni and Shiite jurisprudence with a descriptive-analytical method. And it became clear that Sunni jurists consider " destruction of benefit and destruction of beauty" together or separately from each other as the cause of blood money or corporal crimes compensation. And in the Shiite jurisprudence, the early ones have not explicitly addressed this issue, and some of the later ones believe that it is not possible to claim compensation due to beauty defects, and some have believed that there is a distinction between the limb that is entitled to specified blood money. The result is that one of the reasons for the existence of limb blood money and blood money of limb benefits in Sharia is decrease or loss of beauty, and this is assumed without being explicitly stated in the law.

Decentralized cryptocurrencies have emerged as an essential regulatory issue for governments since their introduction in 2009 and widespread use in recent years. These new technologies exist in the environment of blockchains and peer-to-peer networks, outside the supervision of central banks. Therefore, the absence of a centralized regulatory body, anonymity, the lack of universally accepted classification, valuation problems, and extreme fluctuations have created challenges and inconsistencies regarding the regulation of cryptocurrencies, especially in tax discussions. This has resulted in the lack of integration and disorder of laws and regulations, and tax inequality for cryptocurrency users. In a review of the framework of the European Union's approach to value-added tax and capital-gains tax on cryptocurrency trading with a descriptive-analytical method and the use of up-to-date library resources, it was found that tax regulators are focused on the areas of cryptocurrency speculation and brokerage activities. Taxes are levied on business operators, while other cases are exempted from tax. But the analysis of this approach showed that the tax challenges such as the exchange rate, anonymity and fair value of cryptocurrencies have not been paid attention to; Therefore, the results of this research revealed that things such as the use of the LIFO storage method in calculating the fair value of cryptocurrencies, the creation of an initial registration system for exchangers providing virtual asset services, the supervisory body of the special action group for the treasury of cryptocurrencies, and the system of trading contracts in order to prevent The anonymity of cryptocurrency transactions helps tax regulators in Iran not to face the aforementioned challenges.

According to the principles and values ​​governing the cooperative sector, the cooperatives has requirements regarding the method of resolving incident disputes, which have been neglected by many activists in this field. Cooperatives, which have a non-commercial atmosphere and are based on friendship and cooperation, require settlement methods that resolve disputes in the most peaceful way and do not add to arguments and contentions. The present study, by exploiting the studies of the control library and adopting an analytical-descriptive approach, after analyzing the requirements of the cooperative sector in choosing the method of dispute resolution and analyzing the principles governing alternative methods of dispute resolution, has reached the conclusion that non-confrontational methods of Alternative dispute resolution is based on the requirements of the cooperative sector for dispute resolution and has priority over judicial and arbitration methods. On the other hand, it will be analyzed that the amiable composition mentioned in Clause 9, Article 43 of the Cooperative Sector Law is a legal capacity seen by the legislator to apply the non-confrontational method of dispute resolution in the cooperative sector, which is currently due to the lack of rules and regulations for how to apply it, as well as the absence of a proper Performance Bond for the implementation of the agreements resulting from it, its use in the cooperative sector has been ignored.

Punishment and its implementation reflect the nature and strategies of each government's criminal policy. Deprivation of liberty, which has become the most common sanction after the legal and practical abolition of corporal punishment, leads to undesirable effects and costs for the State, society, the offender and his family. Criminologists and criminal law experts have long highlighted the harmful consequences of prisons on health, criminal cognition, ethics and the social fabric.Nowadays, governments, aware of these costs and the undesirable effects of prisons, as well as with the aim of preventing the phenomenon of social exclusion, the alienation of prisoners from society and the breakdown of ties social and family, have adopted a policy of extrication. Using criminological and criminological studies as well as advances in information technology, they reduced the violence of sanctions and provided in their regulations a new way of applying the prison sentence with the aim of mitigating criminal rights .“Electronic monitoring” as one of the methods of serving the prison sentence, although provided for since Article 62 of the Islamic Penal Code, was less reflected in criminal sentences due to the lack of infrastructure necessary for its implementation. However, with its expansion in law and the gradual reduction of prison sentences with the gradual establishment of the necessary infrastructure, it has become one of the priorities of criminal policy. Today, it has become an inevitable measure, showing that the direction of prison management focuses on the future of prisoners rather than their past. It is expected that, taking into account this change of perspective, the legislator will also develop and approve precise and comprehensive rules for the optimal use of this method of serving the prison sentence.

According to Article 204 of the Criminal Procedure Law (2013), the investigating authority can, at his own discretion or by introducing the plaintiff or at the request of the accused or according to the declaration of the relevant authorities such as the prosecutor or the court judge, the person whose presence or investigation is necessary to clarify the issue. Summon as an informant. According to Iran's judicial practice, an important question that occurs to mind from this legal article is whether the investigating authority can summon the accused or the defendant who has no or insufficient reason to commit a crime, as an informant? In the judicial procedure, it is common to summon the accused as an informant, and the legal department of the judiciary has also confirmed this procedure in its advisory theories; However, according to the provisions of Chapter Six, Part Two of the Criminal Procedure Law, the Prosecutor's Office and the Supreme Criminal Court of Judges consider summoning the accused as an informant, is not in accordance with the legislator's point of view, and it is considered a criminal offense. While criticizing the judicial procedure, based on the arguments presented in this article, the authors examines the issue in an analytical and descriptive manner, focusing on the decisions of the Judges' disciplinary prosecution.

Accusation, as the main stage of the criminal process, which can be considered as the gateway to criminal justice, is affected by criminal justice systems in such a way that, contrary to most beliefs, that the indicators of accusation are the same in all legal systems, its indicators according to the systems and processes Criminal justice is different, and as a result, this influence plays an important role in the beginning and subsequent stages of the criminal process. The current research, which was compiled with descriptive-analytical method after examining the criminal justice systems and processes, has concluded: the indicators of objection to the accusation are different according to the system and the governing process of the proceedings, so that in the Roman-Germanic system, the prosecutor has no role in the objection stage. There is no charge and he must proceed with it, while in the common law system, the prosecutor can refuse to charge in some cases. In the control-oriented criminal justice process, any reaction against order and security is faced with an accusation, while in the dignity-oriented process, the accusation is based on the sufficiency of evidence system and is introduced with caution and considering the prevailing suspicion of committing a crime. Finally, in the combined process, in crimes with private status, accusations are presented with the same indicators as in the dignity-oriented process, and in crimes with public status, including crimes against sovereignty, the indicators of accusations are similar to the control-oriented process. The approach of Iran's criminal justice system in this regard is such that the prosecutor has no authority in the accusation stage and must initiate the criminal process, and in the end, the accusation in Iranian law is considered to be in line with the indicators of the control system to a large extent.

Criminal responsibility in the international arena has many forms. Individual criminal responsibility, criminal responsibility in the light of joint (collective) criminal activity, and responsibility of commanders and superiors are three common forms of criminal responsibility. In fact, in this field; the general principle of individual criminal responsibility according to the nature of international crimes has been accompanied by exceptions that criminal responsibility resulting from joint criminal activity and criminal responsibility of commanders and high-ranking officials are two examples that are imposed in international criminal courts in order to impose criminal responsibility. They are cited as perpetrators of international crimes. The present study, which was written in a descriptive-analytical method with the aim of "examining the criminal responsibility of the perpetrators of the assassination of Sardar Soleimani based on the three forms of international criminal responsibility", comes to the conclusion that: the criminal responsibility of the perpetrators of a terrorist act leading to martyrdom General Soleimani and his companions, in the form of all three forms of criminal responsibility, i.e. 1- individual criminal responsibility, 2- criminal responsibility in the light of joint (collective) criminal activity, and 3- the responsibility of commanders and superior officials, and depending on the way of participation and interference or The lack of involvement of the perpetrator in the material operations determines the form of criminal responsibility

There are principles and criteria related to criminal behavior, which determine its legal reality in terms of form and substance, and consequently affect the determination of punishment and the penological view of it. In the light of this perspective, economic crimes are also a manifestation of the rules that both criminalize the behavior attributed to it and give it an external example in the field of crime.The current research, focusing on the penological analysis of economic crimes, tries to investigate the types of punishments in this area as a final goal and in the light of the aforementioned goal, with a descriptive and analytical method, answer the main question that in dealing with economic crimes, which of the two approaches of consequentialism as the desired result or the non-consequentialist and retributivists aspect should be considered by the legislator in an absolute way in punishment? The results research show that by adopting a broad and diverse approach to punishment, what prevails over economic crimes is the superiority of retributivism.This belief is developed where, in addition to financial crimes and whipping, the legislator has used temporary and long term imprisonment without fear in the criminal discourse of economic crime and the judicial system has also approved this method in implementation. However, the punishment in this area is execution penalty, which with a religious basis and in the form of punishment and in the shape of Ta'zir, removes the economic criminal from the scene of accountability as a corrupt person, or against the economic system.The result of this prevailing thought regarding economic crimes is to adopt a non-consequentialist approach to achieve justice for the society.

As one of the most important supervisory bodies in the country's administrative system, the inspection organization has the authority to prepare reports and announce crimes, violations and misconduct to various investigating authorities, including judicial and administrative authorities. The Court of Administrative Justice can be one of the authorities to receive complaints of the inspection organization, which was not possible until the recent amendment of the Law of the Court of Administrative Justice in 1402 due to the lack of the claimant's beneficial condition. However, according to the aforementioned law, such a possibility was foreseen for the inspection organization. The present article aims to analyze and examine this authority and its limits and loopholes, which is considered a big step towards the protection of public rights, in search of an answer to the question, with what inference can the prescription of the General Inspection Organization's complaint in the branches of the court be justified. Is? And what are the limitations and dimensions of filing a complaint with the inspection organization in the court's branches? In this regard, it should be acknowledged that with regard to the application of the text of the law, it seems that the legislator in Note 1 of Article 17 of the Amending Law of the Court of Justice has given permission to the inspection organization to represent the public within the limits of its authority and in cases where public law is exposed to damages and by observing the legal procedures, he can file a complaint against the decisions and actions of the government agencies and their officials and the decisions issued by the special administrative authorities in the Court branches,

Clause 2 of Article 156 of the Constitution of the Islamic Republic of Iran declares the restoration of public rights as one of the duties of the judiciary and therefore, it is necessary to identify mechanisms for its objective and operational realization. Among these mechanisms is the criminal intervention of the government in a general sense and the judiciary in a specific sense. This type of intervention, on the one hand, by criminalizing behaviors that violate public rights and punishing them and then again, by predicting special and differential courts and judicial processes in order to deal quickly and decisively with cases of violations of public rights Especially if it is committed by the government officials and the guarantee of necessary and effective executions is realized for such behaviors. On one side, certain indicators can be considered for this intervention level. In the current research, after examining the concept of public rights and what and why criminal intervention is for the protection of it, the main indicators and challenges facing this intervention are discussed. The finding of the present research is that one of the mechanisms for the restoration of public rights is criminal intervention, and in order to apply and guarantee this type of intervention, differential criminalizations and the provision of special judicial mechanisms are necessary to deal with violations of public rights without complacency. As a solution, it can be suggested to adopt a comprehensive law on the protection of public, and the establishment and establishment of the Constitutional Court in Iran's legal system.

The philosophy of the insolvency rule is protection of human dignity of the incapacitated debtor. Economic inflation and the poverty line help in assigning the judgment of foreclosure and its proportionality with the real and accurate financial situation of the insolvent. The research method is library method and legal analysis of scientific data to reach the result. According to the current laws, in cases without history of financial ability of the debtor and non-receipt of money, the principle is based on the inability of the debtor unless the creditor proves otherwise. Also, debt can be verified by non-certificate methods, including the adjustment of installments based on inflation, it does not require testimony. One of the current economic concepts is inflation and the poverty line. Inflation is the measure of the decline in the power of money and the poverty line is the minimum amount of money needed to continue living, concepts which their application in the judgments related to debt is a necessity and its approach is proper and real protection of the debtor according to the jurisprudence and legal foundations of this rule. The use of these precise economic criteria should be required by law, so that if the debtor's riyal income is equal to or less than the poverty line, basically issuing a verdict to pay even in installments is not permissible; because this process limits the minimum wage necessary for the debtor's livelihood. The verdicts issued should be adjusted according to the inflation rate and the number of installments should be increased according to the case, or if it is less than the poverty line, the payment should be stopped until the time of earning additional income .