Research
Jurisprudence and Law
Mohammad Reza Asadi; Seyed Saieed Lavasani
Volume 18, Issue 5 , September 2018, Pages 1-17
Abstract
The theory of conventions is the basis of Islamic humanities, if it is viewed from a philosophical and holistic perspective and taken as part of existential discussions. In reality, humans are genuine and real beings that express their needs in this world through the language of conventions. Therefore, ...
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The theory of conventions is the basis of Islamic humanities, if it is viewed from a philosophical and holistic perspective and taken as part of existential discussions. In reality, humans are genuine and real beings that express their needs in this world through the language of conventions. Therefore, conventions are intertwined with anthropology and epistemology and act as the pillars of Islamic humanities. Propositions in the humanities including propositions in jurisdiction and law are conventions and do not necessitate proofs. What is important in these sciences is to attract benefits and dispose loss and gain perfection and prosperity, and in Islamic humanities the aim is to reach closeness to Allah. But, those who take jurisprudence and legal propositions as genuine have mixed genesis and decree since genuine relationships exist in areas where there is a relationship between cause and effect. In jurisprudence and legal issues, a law is validated through a judge and has no genesis, and religious or customary laws are taken from the validity of the judge or a legislator.
Research
Jurisprudence and Law
Ahmad Asadian; Jahanbakhsh Salariyan
Volume 18, Issue 5 , September 2018, Pages 19-43
Abstract
The two terms "fair trial" and "statecraft and the principles of justice" were taken in the same sense and have been used interchangeably. No one should be deprived of his life, liberty, and property without a fair trial. "Fair trials" sometimes mean protections that derive from procedural legal rules, ...
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The two terms "fair trial" and "statecraft and the principles of justice" were taken in the same sense and have been used interchangeably. No one should be deprived of his life, liberty, and property without a fair trial. "Fair trials" sometimes mean protections that derive from procedural legal rules, and sometimes they mean protections that result from substantive legal rules, such as rules related to fundamental rights and freedoms. The principles and standards of fair trial, which are set out in international human rights documentation, have addressed the conditions and requirements of national courts and judicial processes. On the other hand, the intrinsic components of a fair trial fall into three categories: 1. Structural and institutional guarantees such as independence and impartiality; 2. Principles and rules that should govern each stage of the judicial process and guide the entire process in a way that results in a fair outcome; 3. Elements and components of a fair trial, which in a limited sense, are considered as legal rights and include: freedom from something (immunity) like the right to non-arbitrary arrest or enjoying something like the right to have a lawyer. In this article, while attempting to enumerate the factors governing the principles of fair trial, a critical and comparative study has been undertaken in both domestic and international domains.
Research
Jurisprudence and Law
Majid Banaei Oskoei
Volume 18, Issue 5 , September 2018, Pages 45-66
Abstract
The commercial documents, as the paying mean of noncash, have a special position in the relationship between merchants, and many law books have discussed these issues. The third volume of the commercial law book has been written by an honorable author from different aspects such as Issuing, Transferring, ...
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The commercial documents, as the paying mean of noncash, have a special position in the relationship between merchants, and many law books have discussed these issues. The third volume of the commercial law book has been written by an honorable author from different aspects such as Issuing, Transferring, Paying and other subjects that are related to commercial documents. The present critique takes into account known standards and characteristics to assess and criticize the book. As a result, it aimed to identify its weaknesses and strengthens, and improve the quality of future studies. Of the most important defects of the book are lack of legal analysis and innovation. The present book, just provides a summative explanation of legal articles, and it fails to take into consideration other sources except the acts, so it is hoped that the suggestions of the present critique improve the quality of this book.
Research
Jurisprudence and Law
Mohammad Saeed Taslimi; Khalil Norouzi; Mohammad Amin Hakemi
Volume 18, Issue 5 , September 2018, Pages 67-90
Abstract
Methodology is important in every science. Legal studies, for a long time, has been in the deficiency of suitable methodology and methods of doing research. In spite of this specific deficiency, in other fields of human sciences, such as management, there exist some advancements that can solve many issues ...
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Methodology is important in every science. Legal studies, for a long time, has been in the deficiency of suitable methodology and methods of doing research. In spite of this specific deficiency, in other fields of human sciences, such as management, there exist some advancements that can solve many issues in legal studies. Because of the absence of modern research methods in legal studies, it has been a long time that we have seen an obvious downtrend in this field. In spite of this unacceptable practice in law science, we see impressive movements and advancements in management science. Therefore, this paper by analyzing the book “ Method of Research in Legal Studies”, written by Dr. Javid tries to make these two fields, law and management, closer, hoping that in the future, the rapprochement of these two fields can solve the issues of society by applying new methods of management sciences to law sciences.
Research
Jurisprudence and Law
Alireza Taghipour
Volume 18, Issue 5 , September 2018, Pages 91-114
Abstract
International law has so far made remarkable progress in two areas. One of these is human rights and the other is the international criminal law. After World War II, numerous international and regional documents were adopted in the field of human rights. The European convention for the protection of ...
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International law has so far made remarkable progress in two areas. One of these is human rights and the other is the international criminal law. After World War II, numerous international and regional documents were adopted in the field of human rights. The European convention for the protection of human rights and fundamental freedoms is the first regional instrument which provides a judicial institution, the European court for the protection of human rights, as a monitoring mechanism on execution of the convention’s provisions. In the field of international criminal law, the focus has been on prosecuting and trial of individuals who violate humanitarian laws, and international criminal tribunals have been prosecuting perpetrators of these catastrophes. The book of Criminal Law in European Council, which has been translated comprehensively, expresses the translator's expertise in both areas. But this specialization required that the pages, however briefly, were allocated to the other European court decisions to make the terms of the convention clearer as well as to the judgments of the international criminal tribunals which provided interpretations that were contrary to the interpretations of the European court in some human rights in order to comprehensively cover the issue and its relevance to the goals and educational needs of graduate students.
Research
Jurisprudence and Law
Hussein Javan Arasteh
Volume 18, Issue 5 , September 2018, Pages 115-129
Abstract
The publication of the book "Public Law in Nahj al-Balaghah" is admirable in terms of the supreme position of Nahj al-Balaghah in religious culture as well as in terms of the status of public law in comparison with other branches of law. The method of evaluation of this book is citation-analytical, and ...
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The publication of the book "Public Law in Nahj al-Balaghah" is admirable in terms of the supreme position of Nahj al-Balaghah in religious culture as well as in terms of the status of public law in comparison with other branches of law. The method of evaluation of this book is citation-analytical, and it is in accordance with the proposed model of the review committee for the Study of Texts and Books of the Humanities in the framework of general introduction, and review of the form and content of the book.The book's strengths in terms of content include Islamic approach to public law, extensive reflection on Nahj al-Balaghah, and proper matching of titles with selective samples in most cases; however, this book suffers from logical disorder and content cohesion, inaccuracy and incompleteness. In some cases, the author's perceptions of Imam Ali impressions in Nahj al-Balāghah can be criticized.In spite of the great importance of constitutional law as the most important branch of public law, a large number of issues relating to sovereignty and government, governmental institutions and the rights of the nation, which are subdivided are the smallest number of pages is devoted to it, and it is underestimated.The technical quality of the book is good, and the general rules of writing are respected; however, weaknesses in book form include lack of proper organization of the book, the proportions of the length of the chapters and the exhaustion of the annexed book.
Research
Jurisprudence and Law
Mahdi Hatami
Volume 18, Issue 5 , September 2018, Pages 131-154
Abstract
In recent years, the US government has pursued a policy of targeted killings of those suspected of committing terrorist acts. This policy is often referred to as a legitimate and necessary response to terrorism and asymmetric wars. In this article, we seek to examine the conformity of targeted killings ...
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In recent years, the US government has pursued a policy of targeted killings of those suspected of committing terrorist acts. This policy is often referred to as a legitimate and necessary response to terrorism and asymmetric wars. In this article, we seek to examine the conformity of targeted killings with the findings of international law by examining this practice in the light of international law standards and, in particular, international humanitarian law. This policy is applied both to armed conflict and to peace. Therefore, in criticism and legal analysis of targeted killings, the requirements of international humanitarian law as well as the findings of human rights are emphasized and the application of such a function is examined and analyzed within the framework of these principles. After analyzing and elaborating on this case, the author concludes that targeted killings do not comply with humanitarian rights standards and it is necessary to prevent the establishment and legitimization of this phenomenon and to legitimize it within the framework of international law of international protest and condemnation.
Research
Jurisprudence and Law
Tavakol Habibzadeh
Volume 18, Issue 5 , September 2018, Pages 155-165
Abstract
The book entitled "International Law: From Theory to Practice", written by Dr. Ali Omidi in 2009 and published by Mizan Publications. According to the author himself, it is written as an educational manual and a workbook for preparation to Master’s Entrance Exam of International Law. Such ...
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The book entitled "International Law: From Theory to Practice", written by Dr. Ali Omidi in 2009 and published by Mizan Publications. According to the author himself, it is written as an educational manual and a workbook for preparation to Master’s Entrance Exam of International Law. Such a purpose of writing a manual has influenced the scientific level of the book in such a way that it is far away from an academic textbook containing the accepted standards and criteria which aim to analyze the documented and scientific way the various fields of international law. In addition to some form of lacunae, this work also suffers from significant deficiencies and deficits, including the lack of use of first-hand resources, the lack of a logical and consistent table of contents, inaccuracies in the titles of some chapters, and quantitative non-proportionality between chapters. It is hoped that the respected author in subsequent publications will pay attention to this assessment in order to elevate the scientific level of the book.
Research
Jurisprudence and Law
Sayyid Abdolrahim Hosseini
Volume 18, Issue 5 , September 2018, Pages 167-186
Abstract
Devotion to rules of writing educational books of humanities, especially in jurisprudence, legal issues, and principles of jurisprudence, is an inevitable requirement. According to the investigation on the manner of writing and configuration of scientific topics and contents of “Basics of Islamic ...
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Devotion to rules of writing educational books of humanities, especially in jurisprudence, legal issues, and principles of jurisprudence, is an inevitable requirement. According to the investigation on the manner of writing and configuration of scientific topics and contents of “Basics of Islamic Law Inference” book, some issues such as lack of style cohesion in classifying topics, ignoring logic of complication and recent achievements, lack of logical relationship between some of the described issues, non-using required documents, impracticality of described issues, heterogeneity of reasoning, ignoring key doctrines, lack of using new legal findings and revised books made this book reviewable; on the other hand, the practical requirement for composing legal educational texts and its conformity with the latest finding and adaptation with applicable law in various areas, emphasizing the theories of jurisprudents and using their latest achievements are essential for jurisprudence texts. Since the book mentioned herein is for education which should make students feel ready for conducting legal research based on the fundamental views, it seems that it is essential to revise its topics as a source of higher education and employment examination.
Research
Jurisprudence and Law
Ali Abbas Hayati
Volume 18, Issue 5 , September 2018, Pages 187-206
Abstract
The retrial is one of the extraordinary methods to complain against decisions whereby the plaintiff demands the issuing court to reverse the final judgment which has been pronounced by the court. If the court accepts the request, the action is reviewed again. Article 426 of Iran’s Act of ...
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The retrial is one of the extraordinary methods to complain against decisions whereby the plaintiff demands the issuing court to reverse the final judgment which has been pronounced by the court. If the court accepts the request, the action is reviewed again. Article 426 of Iran’s Act of Civil Procedure counted seven causes for rehearing. Critical analyses of these causes show us the drawn foundation for retrial, and it is required first, 1-3 sub-sections of the aforementioned section would be removed, and second two other causes would be added. The first case happens when it is proved that the judgment has been pronounced based on false testimony or witness statement or oath, and second case happens if it is demonstrated before the court that the issuing judge has gone wrong that is effective in being the judgment unjust.
Research
Jurisprudence and Law
Ziba Zafari; Javad Panjepour; Ahmad Abedini
Volume 18, Issue 5 , September 2018, Pages 207-226
Abstract
Judgment is a great thing that sometimes becomes a platform for the unpopularity of human society. Therefore, in Imamiyya jurisprudence, a valuable place is set for the judge, and the installation and deployment of judges in this sensitive position has been accompanied by specific conditions and attributes. ...
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Judgment is a great thing that sometimes becomes a platform for the unpopularity of human society. Therefore, in Imamiyya jurisprudence, a valuable place is set for the judge, and the installation and deployment of judges in this sensitive position has been accompanied by specific conditions and attributes. The attitude of the jurisprudential texts and profound thought in the traditions and sayings of the Prophet (pbuh), the infallibles (as) and the words of the elders, all indicate that this position is important.Shiite jurisprudence with all its breadth and dynamics, in dealing with the events of the day and the needs of the day require the ghur, thinking, relaxation, and flexibility that in the absence of the infallible Imams, the hypocrites, scholars and clergymen of the Shari'a are supposed to work on this path and put them on the shoulders of ijtihad. In this regard, the category of innovation and ijtihad is apparent in the course of compilation of the laws of the Islamic Republic of Iran, which is derived from this dynamic theology. In this study, we will look at the current laws in conformity with the jurisprudence of the Imamieh, and to see to what extent the status and functioning of the judiciary have been transcendental, fruitful, and responsive to the developments of the day.
Research
Jurisprudence and Law
Reza Zahravi; Seyed Ali Kazemi; Rasool Ahmadzadeh
Volume 18, Issue 5 , September 2018, Pages 227-254
Abstract
A delinquent, in a deliberate crime, must have the mental intention and also the knowledge necessary to commit the crime, or in doing a crime, without a definite intention to commit an offense, he/she makes an error that could qualify him/her for criminal responsibility. But this does not encompass all ...
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A delinquent, in a deliberate crime, must have the mental intention and also the knowledge necessary to commit the crime, or in doing a crime, without a definite intention to commit an offense, he/she makes an error that could qualify him/her for criminal responsibility. But this does not encompass all that is called the immaterial element, and only contains part of what is called the immaterial mental elements, while it is indispensable that the other part of the spiritual element that is "immaterial" and at the same time "non-mental" be identified independently and have the opportunity to be appeared and emerged. The authors try to prove that there are elements in the realization of crime in all the legal systems of the world that are immaterial but do not qualify as "mental". Therefore, the "non-mental" elements can be recognized as a true and independent title under the immaterial element with the correct title of "non-mental immaterial elements". Apart from the many benefits of discussing in proving aspect of crimes, this shift has led to a theoretical shift in the fundamental concepts of criminal law, and consequently a change in the structure of all domestic and even foreign law books, and in this sense it is a deconstructing theory. In terms of reasons related to human mental aspect as well as of scrutinizing in the essential elements, crime in action makes it difficult to prove some crimes and by removing certain components from the material element to acquire it, material and sensory means are not sufficient. As a result, it can lead to some kind of diversion or decriminalization and reducing the inflation of the criminal population.
Research
Jurisprudence and Law
Naser Ghasemi
Volume 18, Issue 5 , September 2018, Pages 255-270
Abstract
Basically, each discipline is selected and chosen to indicate the content of the field, on the one hand, and it can explain its scope, such as sociology, rhetoric, criminology, and so on, on the other hand. While a criminal policy is a discipline that extends far beyond its title and includes many different ...
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Basically, each discipline is selected and chosen to indicate the content of the field, on the one hand, and it can explain its scope, such as sociology, rhetoric, criminology, and so on, on the other hand. While a criminal policy is a discipline that extends far beyond its title and includes many different subjects, it is also capable of evaluating from a diverse range of scientific disciplines, as well as various legal systems, especially religious and Islamic.About the concept of criminal policy from the past, the views of many writers in Western and Eastern societies, as well as in Iran before and after the Islamic Revolution, have been expressed, which in some cases require careful consideration. Addressing the secular and religious viewpoint of the criminal policy and plotting its place in these two groups: the first group is a subject that has been considered in the book of evaluation, and the author has attempted to explain the position and its role in religious matters, and consequently it is in the current legal system of the Islamic Republic of Iran.
Research
Jurisprudence and Law
Zahra Mosavi; Tayebeh Mahrosadeh; Mohammad Seyfi
Volume 18, Issue 5 , September 2018, Pages 271-300
Abstract
The purpose of this study is to review and criticize the human rights charter in the social, economic, cultural, and political component of women and family in relation to the religion of Islam. The research method is objective and fundamental in terms of collecting data in the research class. The data ...
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The purpose of this study is to review and criticize the human rights charter in the social, economic, cultural, and political component of women and family in relation to the religion of Islam. The research method is objective and fundamental in terms of collecting data in the research class. The data were collected using a snippet, library, and document method. After analyzing the research data, the qualitative content analysis method resulted in the following results. In terms of content, some UN programs and documents, the relationship with women's rights and the strengthening of the foundation of the family, as well as the recognition of women's fundamental rights and freedoms, have been attempted, but in the eyes of United Nations agencies, the rights of women and the family are often the ones that need to be investigated. In this article, the damage Ethics in the areas of the right to life, the right to liberty, the right to work, the right to education, the right to protection and so on, minimum social, civil, and political rights of women and children were extracted, and the moral model of human rights in the component of women's and family rights was based on Islamic principles. In the end, the result was that the way to cure and to escape the moral harm arising from the human rights charter and women's rights conventions that are themselves based on secular, humanistic and communist views is Islamic and ethical.
Research
Jurisprudence and Law
Ezat Sadat Mousavi Dorcheh; Seyed Hamid Jazayeri; Hashem Niazi
Volume 18, Issue 5 , September 2018, Pages 301-322
Abstract
The recognition of parentage is one of the important issues in Shari'a, especially in the cases where there is doubt. Artificial insemination between two foreigners is a suspicious example that is criticized in two terms of imperatives and positive rules. Because of independence between imperatives and ...
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The recognition of parentage is one of the important issues in Shari'a, especially in the cases where there is doubt. Artificial insemination between two foreigners is a suspicious example that is criticized in two terms of imperatives and positive rules. Because of independence between imperatives and positive rules, the positive rules of parentage in artificial insemination could be independently criticized.In this regard, the aim of this article is to examine different opinions in the specific evidence of positive rules of parentage regarding the determination of the father, as well as criticizing these views and choosing the right point based on verses and narrations.Based on the result of this paper, the right view is that these children belong to the owner of sperm and other views are rejected because of the invalid reasons. In the end, it can be argued that the privacy, alimony, and inheritance issues can be resolved by considering the real father explained in this article.
Research
Jurisprudence and Law
Ebrahim Mousazadeh
Volume 18, Issue 5 , September 2018, Pages 323-339
Abstract
The importance of this criticism is due to the status of the constitutional law, the constitution and the rule of the Islamic Republic, and the necessity of criticism is also the motivation for the formation of the effect of criticism as a teaching resource for the constitutional law course in law and ...
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The importance of this criticism is due to the status of the constitutional law, the constitution and the rule of the Islamic Republic, and the necessity of criticism is also the motivation for the formation of the effect of criticism as a teaching resource for the constitutional law course in law and subjects related to constitutional law in postgraduate courses in the field of public law. The purpose of this critique is to identify the strengths and weaknesses of the work as "academic books" and to modify the proposed issues and to eliminate existing shortcomings. The method of critique is citation-analytical methodology, and legal logic-based analysis of the legal knowledge is critical in the overall context of a critique of form, and content review. It also assesses the quantity and quality of resources, references, and citations. The results indicate that this critique in terms of methodology and coordination of content, objectives and training needs and the cohesion and logical relationship between the components should be fundamentally revision. Also, due to the lack of balanced processing of the material, it is also subject to both theoretical and internal contradictions.
Research
Jurisprudence and Law
Nader Mirzadeh Kohshahi; Mohmmad Rahman Gaeeni
Volume 18, Issue 5 , September 2018, Pages 341-374
Abstract
In this article, regarding some of the obstacles and challenges of implementing the law, the implementation of Article 44 of the Constitution in the National Iranian Oil Refining and Distribution Company addresses the analysis of the outlines of these ambiguities and challenges. In analyzing this issue, ...
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In this article, regarding some of the obstacles and challenges of implementing the law, the implementation of Article 44 of the Constitution in the National Iranian Oil Refining and Distribution Company addresses the analysis of the outlines of these ambiguities and challenges. In analyzing this issue, there are several categories more than others: ambiguity in the basics and principles, the challenge in the public service, the conflict of assignments with the type of constitutional government, the confusion in the institution, the ownership of the ventures, the ambiguity about the employees employed in the corporations, the challenge of retirement, and the ambiguity in the rates of corporate governance and privileges. Each of these issues is individually dealt with analytically and within the scope of the research, including the sample the effects, consequences, and the manner of operation of the relevant institutions in order to resolve them based on the documents and approvals.
Research
Jurisprudence and Law
Jafar Nory Yoshanloey; Seyedeh Nazanin Akhavan Tabatabaei
Volume 18, Issue 5 , September 2018, Pages 375-393
Abstract
The manufacturing and production activities have been explicitly predicted in Article 2 of the Iranian Trade Act and have been considered as inherent to commerce. The growth of production is the foreground of economic development, and the support of domestic production and the improvement of business ...
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The manufacturing and production activities have been explicitly predicted in Article 2 of the Iranian Trade Act and have been considered as inherent to commerce. The growth of production is the foreground of economic development, and the support of domestic production and the improvement of business environment are nowadays the priority of study programs in commercial and economic law, through which there are now broad fields available for its realization, and the evident conformation of which includes anatomy of manufacturing contracts, legal management of foreign investment contracts, prevention of imported dumping, the adoption of supportive laws governing special economic zones, modification of tax laws, combating contraband of goods and foreign exchange, reviewing banking laws, and facilitating the participation of foreign trade and industrial activists in the country. But, the constraints of international sanctions on the one hand, and the WTO integration requirements on the other hand, and, finally, the deficiencies and ambiguities about current laws and regulations, along with the weakness of economic policies, have been a major barrier to domestic production, which has long been a challenge between protectionism and globalization of the economy and which has made the critique of the existing legal status a necessity to explain the desired supportive system, using the experiences of advanced countries in the process of industrialization of the country and the competitiveness of the domestic economy.
