Judicial Law Views Quarterly (Law Views)

  It is essayed in this article to determine the cases of accessorily in private law. In this effort, numerous cases have been determined. Each of these cases has been considered as the case of accessorily, because of some accessorial relationship between its elements. For example, in employment relationship, one the parties (namely employee) has the juristic subordination from other party (namely employer). In other hand, in accessory contracts, as one of the accessorily cases in private law, the conclusion, effects and dissolution of the contract based on the basic obligation. This accessorial relationship could be seen in other cases of accessorily in private law.

  As a legal point of view, article (728) of Islamic Penal Code has a special position in the Tazirat Act. This article rules the whole Tazirat as a principle. After a proper understanding about this article, a new theory will govern the "Penalty" principle in Iran penal system, which is the theory of "expediency- tendency" in Tazirat. According to this theory, the legislative has precisely provided the maximum punishment in Tazirat and the judge can by no means issue a verdict beyond these legal provisions. But in determining the minimum punishment, changing the punishment into other penal, the judge has a wide discretion. In fact, this is the judge who must consider the exact position of the criminal for ruling "a proper" punishment and if he doesn't find an expediency in Tazir or find an expediency in Tazir, he can use a penal alternative. The expediency is based on correction and deprivation of a criminal from committing a crime. The true understanding of this theory depends on reconsidering the cause of enactment of this article and its position in the legal system which is "intentionally" or "by expediency" forgotten.

  One of the issues long discussed in Law of Tort (civil liability) is the effect of act and fault of injured person on Tort action. In Roman law, condition that committed fault, injured person was deprived of compensation, without the type and degree of his intervention in damage occurrence being studied. In ancient Common Law this rule was governed too. But it was gradually modified in Western Legal systems, especially in Common Law. There are interesting issues on foundation and conditions of this rule being practiced, and on the mutual effect of injured and defendant act on each other.

  This study aims at investigating the issue along with its changes over time in Islamic Law, Common Law and, French Law.

  In case of existing a reliable agreement the courts do not have jurisdiction to consider the settlement of the case. So, the effect of arbitration agreement is to exclude the jurisdiction of state courts. The exclusion of court jurisdiction is not meant the absolute non-intervention in arbitration proceedings. Arbitration may not exist without a degree of court intervention. But, this intervention has to be limited, or else it is possible to become a tool for separation from the purpose of referring to arbitration. In this direction, a minimum court intervention is necessary in arbitration award enforcement and when a losing party avoids of enforcing it voluntarily. Court intervention in arbitration may be before or in the course of arbitration and or even after the issuance of the award. In each stage, these interventions which may be supervisory or supportive constitute an important section of courts proceedings in the process of arbitration. In this article, the writers have attempted to analyze the courts intervention cases in arbitration proceedings and the possibility to restrict it with reviewing the relation between court and arbitration.

  Corporate crime is an extra pervasive and general term, including a broad spectrum of crimes. In spite of the importance and sensitivity, these crimes, has always been in the margin of the criminological considerations and the most criminological studies, theories and courts functions has devoted to violent or street crimes. Combating against corporate crime (as one type of the white collar crimes), requires the recognition of specifications and different aspects of this kind of criminal phenomenon that can be possible under the protection of criminological studies in this field. The present article is devoted to the most important characteristics of white collar and corporate crimes, as one of its subsets, their similarities and distinctions, differences with street crimes, and the study of the examples of corporate crimes in Iran’s laws, from a criminological viewpoint.

  Today supervision and control is found prominent and immeasurable role in Countries, development. One of supervisor institutions in our legal system is the principle ninety commissions which consider under parliament, public complaints against the three branches working. On the one hand in the world different legal systems, one of important supervision mechanisms, be seeing under ombudsman institution that usually in interacting with parliament, investigate to citizen complaints against public and state institutions in the non- judicial method. Regarding likeness that seen in the principle ninety commissions and ombudsman institution qualifications, can adopt mentioned commission in our legal system as parliament ombudsman? Due to this important, this paper with meditation in two mentioned institutions structure and function, analyses their Similarities and differences.

  Jurisdiction of the International Criminal Court includes the international crimes which stipulated in the Statute of ICC. Criminal procedure of international crimes needs the protection of the Court’s criminal process. This protection is provided by conviction of persons who perverting the course of international justice. The issue of this paper is to answer this question that do the ICC has jurisdiction to try the offenses against the administration of justice and the extent of this jurisdiction is.

  So, considering the major legal systems’ approaches and international criminal law is explained the foundations of this jurisdiction (part one). The extent of the jurisdiction is understood by examining of the Articles 70 and 71 of statute (part two). Finally, it is ended by taking the first case into account which related to offenses against the administration of justice in Court’s procedure (part three).

  Commercial instruments, in particular meaning, or bills are one of the most important means for business parties to enter into transactions. Such instruments are considered as a certain form of property with a great variety of uses. For example, they can be used as a means to pay or to use as a guarantee or security. But a question has always been posed:” whether such instruments can be used as security or guarantee in accordance with law”. Mortgaging the instruments which are not regarded legally to have genuine value is under question and discussion among law professionals. Some of them absolutely accept this and some not. A group of them discuss the instruments stressing on the fact that they are bearing or not. Most of the law professionals consider such instruments within the framework of mortgage contracts, and they place no difference between security/guarantee and mortgage while, it seems that mortgage has a general and broad meaning, while mortgage is a particular example of that and is subject to civil code. Therefore, it can be said that mortgage is a security, but the contrary does not hold. This separation occurs in British law as well.

  Here in this paper, I deal with the legality of mortgage and security uses of bills in Iranian and British laws. General conclusion which can be drawn from my research is that bill means check and promissory note which is a certain kind of credit property of movable nature, so it is capable to be legally transferred, received, mortgaged and used as security or guarantee. Such matters have not also been accepted by British law, and there can be no difference between Iranian and British laws in this regard, although the mortgage is understood and treated differently in the two laws.

  According to the Article 123 of the constitution of Islamic Republic of Iran “The President is obliged to sign legislation approved by the Assembly or the result of a referendum, after the legal procedures have been completed and it has been communicated to him. After signing, he must forward it to the responsible authorities for implementation”. In contrast to its seemingly simple wordings, there are some practical doubts about its meanings. Occasionally different presidents have refused to sign certain acts approved by Majlis. In spite of legislative efforts of Majlis in this field, Article 123 still is one of the most controversial articles of the Constitution.

  It seems that controversies surrounding this Article are of constitutional nature and therefore need constitutional interpretation. Different questions concerning legislative signing all are about the true meaning of the constitution and hence all are constitutional questions that require constitutional interpretation of Guardian Council. In addition, because the Constitution has mentioned the constitutional amendment procedure, Majlis cannot interfere in these matters by way of enacting ordinary legislation.

  Reasonable and common time and costs of civil litigation and efficient litigation advocacy (trial) process are called the quality trial that make an optimum flow (procedure) of trial and its efficiency. Quality of trial, which is one of the fundamental guarantees in a civil trial system, emphasizes on effective organizing of legal relations litigants and judicial apparatus, therefore meanwhile the social function of trial is promoted , the substantial justice (= efficient justice) will be also achieved.

  In this paper, first of all, the concept of efficient trial and quality of justice is discussed and then respectively, the position and indicators for quality of trial are noted finally, it is focused on counting and explaining the promoting of quality trial factors.

  It is widely accepted that a contract of private international law is governed by the law chosen by the parties. Nevertheless, the most general rule of Iranian law, i.e. article 968 of civil code, which has been adopted more than 77 years ago, provides for application of the law of the place where the contract is made. That is why in the silence of courts’ decisions the Iranian authors are divided to those who accept this mandatory “judgment” of legislator and those who try to interpret it in a compatible sense.

  So it seems that we need to re-establish the concept and the extension of the principle of autonomy of the parties and explain why the different legal systems adopted this theory. We shall try finally to explain why the legislator could not impose the rules contrary to the general principles of law.

  The main objective of this article is then to demonstrate that the determination of the law on contract is not an option among different options but a mandatory rule.

  Finally, this article tries to present a “principle-its” interpretation of article 968, emphasizing its necessary” reform”.

  The primary principle of international Criminal law is territorial principle. However, in several special cases, Countries tend to extend their local territory of criminal law to extra territorial Jurisdiction. It means that, if providing commitment crime out of their territory of autonomy, they will decide that their provision and courts to consider the crime. For example, when occurring a crime out of their territory of autonomy, threat their vital interests.

  This Jurisdiction is called "protective principle". According to nature and violence of the crimes, different countries have no limitation and condition for protective principle, whereas, in Iran criminal law there is some limitations for acting, including presence of person in the state. In the Islamic penal code, however, those limitations are rejected.

  One of the important issues which are discussed by the law today is the civil liability of Physicians, something which was silence in the civil code and civil liability code of n1339 (1960), however the Islamic penal code has predicted some regulations for it. The civil liability of Physicians in the comparative law is principally based on the theory of fault. That is, a Physician is found to be responsible and liable to indemnify the loss inflicted on the patient when his (her) fault is established. This solution is compatible with the general rules of the civil liability while it is also justifiable with the expediency of the patient and the society. Nevertheless, the Islamic penal code of 1375 (1996) apparently accepts the no fault responsibility of the Physician pursuant to the words of a group of Imamiyeh Jurisprudents which seems to be subject of criticism although the aforementioned rule has been adjusted through accepting the clause of innocence (clause of non-liability). Indeed, acquisition of clause of innocence shall not totally exempt the Physician from liability because in this presumption too he shall be responsible and liable to indemnify the loss upon establishment of the fault.

  Fortunately, the new Islamic penal bill adopted in 1390 (2011), which has not been put into force yet, has deviated from the former rule and accepted the basis of fault in the Physicians liability however the basis of liability in this law seems to be the presumed fault and not the established one. In other words, the law presumes the Physician to be liable unless his faultlessness is established. Acquisition of clearance from guarantee too, has been predicted in the new bill whose benefit is the replacement of the burden of proof.

  The important role of the transportation of goods and distribution of the wealth in the international scope has necessitated the enactment of unified international provisions. One of these important conventions is the Convention on the Contract for the International Carriage of Goods by Road (CMR). Islamic Republic of Iran, due to the important economic effects of joining this Convention, has joined it. Although the joining has occurred more than fourteen years ago, the Iranian legal literature is not so rich in this area. Since the application of the Convention on the contract of international carriage of goods requires some conditions, this study is going to explain those conditions with respect to their nature, the conditions of the conclusion of the contracts covered by the Convention, the necessary elements required for the 'international' description of the carriage and also conditions of the application of the Convention on the basis of the rules of conflicts of laws.

  This article tries to justify the theory of ineffectiveness of Mora’a [1] the purpose of the article is to explore the theory together with its justification and to introduce it as a legal rule. In the article we make clear the difference between ineffectiveness of Moghoof [2] and Mora’a in both legal and consequential aspects, and when the theory of ineffectiveness of Mora’a can be applied? Our conclusion is that contrary to Moghoof in contracts, for Mora’a in contracts to be effective there is no need for the permission of those who enjoy rights in the contract, but it suffices to ensure their rights later for the contract to remain effective. Therefore, we believe such a contract shall become automatically effective, even if the holder of the right/s had rejected that Mora’a contract. In contrast, a Mora’a contract is ineffective when the contract is against a third party and his rights or ownership are not taken into consideration.

  By studying all implications of this legal concept, it seems that the ineffectiveness mentioned in the judgment of the General Council of Iran Supreme Court (Court of Cassation) in its verdict No. 620 dated 20/09/1376 (11/12/1997) means they saw a contract of Mora’a ineffective. On the other hand the concept of impossibility to invoke, which is imported to Iran legal system as theory of “Impossibility”, has no more implication taking into account the theory of ineffectiveness of Mora’a. My suggestion is to use the word “ineffectiveness of Mora’a” with its original and domestic meaning.

  2 -This theory deals with the rights of third parties in contracts.

  3- This concept deals with the rights of the parties to the contract.

In this paper, we try to explain the legal area of two Acts on one topic. The first act, entitled “Act for punishment of persons who illegally intervene in audio and visual actions”, is on criminal conducts which their main issue of actual element is audio and visual products. In contrast, the second Act entitled “cyber-crimes Act” includes doing of crime by using of information technology like computer. So the first part of this paper is about the legal area of two acts and the second is devoted to examine their interaction together.

One of the practical and differential subjects in the civil courts is possibility of issuing and performance the verdict of rental places vacation with demand of some landlords. This topic becomes more complicate when the object of lease is a commercial property due to some factors like key money. In the presumption of issuing of verdict, the quality of performance the verdict is one else challenging topics that all of them are faced with legislator silence? In this article is tried with survey of and criticism of different views, to state the solution in different cases in company with procedure in regard to law Principles and similar articles.

The relationship between “rights” and “obligations” is one of an inseparable nature. In the same way that “human rights” are perceived as being distinct from “citizenship rights”, “duties” and “obligations” of individuals as human beings are distinguishable from their obligations as citizens. The present paper presupposes the ties between rights and obligations to apply to any individual and “social right and obligation”, and investigates the dual obligations in both areas concerning rights. As for the relationship between natural and citizenship obligations, this paper is based on the premise that the same hierarchical relationship governs here as exists between natural rights and citizenship rights. Therefore, it is necessary that “citizenship obligations” be defined and interpreted along with “natural obligations”.

  It is widely accepted that a contract of private international law is governed by the law chosen by the parties. Nevertheless, the most general rule of Iranian law, i.e. article 968 of civil code, which has been adopted more than 77 years ago, provides for application of the law of the place where the contract is made. That is why in the silence of courts’ decisions the Iranian authors are divided to those who accept this mandatory “judgment” of legislator and those who try to interpret it in a compatible sense.

  So it seems that we need to re-establish the concept and the extension of the principle of autonomy of the parties and explain why the different legal systems adopted this theory. We shall try finally to explain why the legislator could not impose the rules contrary to the general principles of law.

  The main objective of this article is then to demonstrate that the determination of the law on contract is not an option among different options but a mandatory rule.

  Finally, this article tries to present a “principle-its” interpretation of article 968, emphasizing its necessary” reform”.