Solving The Major Challenges in Trade Secret Litigations
by Eliminating the Controversy of the implementation of
two rights; Fair Litigation and Preserving Confidentiality of
Information
Mohsen
Esmaeili
Associate Professor of Islamic and Islamic Law Department of Tehran University
author
Ebrahim
Taghizadeh
Associate Professor of Private Law, Payam Noor University, of Tehran
author
Hossein
Heydari Monavari
Ph.D. Student of Private Law, Payam Noor University of , Tehran
author
text
article
2018
per
< p >The enforcement of law on trade secrets in courts has consistently faced three major challenges: the risk of losing a fair trial, the risk of losing trade secrets and the difficulty of discovering the reality of dispute from defendants of the litigants. In trade secrets litigation, these challenges have led to a conflict called "the conflict of rights or duties of the parties to the dispute". In the current research, the provisions in advanced legal systems such as the United States, the European Union and Germany have been adopted to resolve this conflict. "Elimination of the subject of conflict" that is possible in various ways, and in most cases it is compatible with the current Iranian judicial system has been proposed as a solution.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
1
29
https://law.tabrizu.ac.ir/article_8532_ef68321446d768e38a5f7a26806aa5df.pdf
dx.doi.org/10.22034/law.2018.8532
From Quadruple Levels of Crimes to Octuple Levels of
Ta’zir Punishments: Shortcomings and Necessities
Babak
Pourghahramani
Assistant Professor of Islamic Azad University, Department of Law, Maragheh Branch
author
text
article
2018
per
Upon the enactment of Islamic Penal Code in 2013, tremendouschanges have been observed in Iranian punishment determining system,particularly regarding the aspects related to Ta’zir. While preserving thereligious categorization of punishments, the above-mentioned Code hasdivided Ta’zir into eight levels. Categorization of levels of punishmentsis an ordinary issue in different legal systems, which automaticallyresults in different substantive and procedural effects. It is also anirrefutable way of defining the application of responses and the use oflegal entities established by law. However, a number of questions arisehere including: (a) what are the bases of differentiating such levels?, and(b) what consequences may be followed by the implementation of suchlevels? The present paper aims at determining the shortcomings andnecessities of the octuple levels of Ta’zir punishments embedded inIranian Islamic Penal Code. The study reveals that the legislators havenot followed a rational approach in dividing Ta’zir punishments intoeight levels; they have also not established this categorization on thebasis of a specific principle. This has led to a failure in distinguishingsevere and lighter punishments, which has destroyed the rights of theaccused and has also resulted in some inconsistency with the overallpolicies of the judicial system.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
31
55
https://law.tabrizu.ac.ir/article_8533_141484a651287bd9f77810529bed35fe.pdf
dx.doi.org/10.22034/law.2018.8533
A Study of the Basis of the Discussion of the Conflict of
Principle and Appearance and its Applications on Dowry and
Alimony
Ehsan
Avazpour
Graduated Ph.D., Law Department, Islamic Azad University of Najaf
author
Ali
Pourjavaheri
Assistant Professor of jurisprudence and law, Islamic Azad University of Yasuj.
author
Mohammad Ali
Heydari
Associate Professor of Law, Islamic Azad University of Najaf Abad
author
text
article
2018
per
The validity and primacy of the principle or appearance regarding acontradictory issue has been a controversial issue. Occasionally, theappearance is confirmed by Shari'a and the legislature, (which is referredto as a legal statute), and sometimes the nature of appearance is relatedto the knowledge and certainty of the judiciary; these are said to bejudicial authorities; both of these kinds of appearances and emirs areauthentic and valid. However, if the appearance is relevant and if it isrelevant to the facts and circumstances of the matter, without theaffirmation of the law or the cause of the knowledge and confidence ofthe judiciary (which is called the emergence of the custom), jurists andlawyers will be skeptical about the primacy of this appearance. Theestablished belief is the primacy of appearances on the principle(Kaleini, Tusi, Shahid Sani and Katouzian and ...), while another grouptakes precedence over this conflict. The main purpose of this researchwas to establish the validity of principle and appearance from the pointof view of jurisprudents and lawyers and to examine the practicalapplications of this issue during the proceedings (special cases of dowryand alimony) in order to determine which one the judge dealing withsuch cases prefers to hear.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
57
88
https://law.tabrizu.ac.ir/article_8534_9476ec61e571b9bd76cd95758ba01146.pdf
dx.doi.org/10.22034/law.2018.8534
A Reflection on Cases of Deviation from Principles
Governing Equal Retaliation for Causing Harm to Body
Hossein
Fakhr
Associate Professor of Law, University of Tabriz,
author
Arash
Rostami Kaman
Graduated Master of Criminal Law and Criminology, Mazandaran University,
author
text
article
2018
per
Retaliation (Retribution) is one of the endorsed rulings of Islam thatprovides the victim (victim of an offence) with the possibility of causingan injury like what the murderer has caused. Retribution is an earlypenalty for intentional crimes whose implementation is based on respectof some fundamental principles such as tit for tat and equality principles,principle of lack of punishment awarded by judge and the principle ofadequacy and equity. However, if the execution of retaliation leads to theviolation of these principles, the principles will be replaced with otherprinciples, and retribution is replaced with blood money. Thesubstitution of principles rests on several other fundamental principles ofIslam including the precaution principle in blood or principle ofdetention of retaliation or the principle of equality in punishmentdeviation from which requires a valid and credible argument. However,we van notice some deviation from rules in the Islamic criminal law1392 (2013) regarding the retaliation of some organs among which wecan refer to retribution, criminal’s (murderer’s) left hand in the absenceof the right hand and retaliation of foot instead of hand in the absence ofhand (article 393 ICL), retaliation of person’s two eyes when thecriminal has intentionally made one eye of the victim blind (article 403ICL), retaliation of tongue with taste for a tongue without taste (article410 ICL), and an eyelid of a healthy eye for a blind eye (article 406ICL). To investigate the logic behind these rules in jurisprudence, toconsider different opinions, to deal with the viewpoints in other religionsin similar cases, and to reconcile these issues with legal principles, theexceptions will be studied and ways to replace them will be examined.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
89
108
https://law.tabrizu.ac.ir/article_8535_65e4073e7e2fc02b555ac69d7182f89e.pdf
dx.doi.org/10.22034/law.2018.8535
A Legal Analysis to Verdict Containing Contradiction
Relied on Contradictory Principles
Ahad
Gholizadeh Manghotai
Associate Professor of Law, Isfahan University
author
text
article
2018
per
A Judge’s reliance on contradictory principles in issuance of a verdictcauses the verdict to become a “verdict containing contradiction relyingon contradictory principles” and become exposed to new trial. Despitemany scientific, practical and analytic difficulties in exploring examplesexactly fitting the above-mentioned notion, there are some examplesamong the articles of law regarding contradictory judgments andprinciples. Non-hiddenness of the evidence of suit, awareness of theplaintiff of the new trial of the existence of evidence, expiration of newtrial period on hidden or non-noticed evidence and solvency are someexamples of such principles. These principles usually overlap partially,but they cannot overlap completely. Such a verdict contemplates wrongimposition of burden of proof in lawsuit. Not only Civil Procedure Actbut also other acts such as Commercial Code contain such principles.Mere existence of contradictory principles within a verdict cannotchange such a verdict into a “verdict containing contradiction relying oncontradictory principles”, but some conditions have to be observedwithin that verdict. Hence, the mentioned verdict is necessarily anexample of the verdict containing contradiction and both principles mustbe used and relied on.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
109
132
https://law.tabrizu.ac.ir/article_8536_35e81397276ae29f6cf9c2e836f49da0.pdf
dx.doi.org/10.22034/law.2018.8536
The Challenges of Supervision on the Imam Khomeini
Relief Committee with an Emphasis on Financial
Supervision
Ayat
Moulaei
Assistant Professor of Law, Bu-Ali Sina University, Hamedan,
author
Behrooz
Saadatirad
Graduate of Master of Public Law, University of Buenos Aires, Hamedan,
author
text
article
2018
per
Some revolutionary institutions like the “Imam Khomeini ReliefFoundation” were established to eradicate poverty and social exclusionin the community. Given that this institution is responsible for publicaffairs due to its inherent duties and responsibilities, it undoubtedlyneeds financial resources which should be made available to perform thetasks. The main question which arises here is what challenges faced bymonitoring agencies in monitoring the Imam Khomeini ReliefFoundation are? This descriptive and analytic research has tried toaddress and evaluate the challenges faced by supervisory institutions ofthe three branches monitoring Imam Khomeini Relief Foundation. Thefindings highlight the necessity of establishing a single monitoringsystem to prevent parallel operations between monitoring institutionsand the ambiguity in the rules and regulations governing thisrevolutionary organ.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
133
159
https://law.tabrizu.ac.ir/article_8537_b9473730739f2a7d5e068c094ad9d4a7.pdf
dx.doi.org/10.22034/law.2018.8537
A Different Approach to mens rea in Joint Criminal
Enterprises
Morteza
Mirzayi
Ph.D. student of criminal law and criminology, Qom University
author
Abolfath
Khaleghi
Associate Professor of Criminal Law and Criminology, Qom University,
author
text
article
2018
per
The theory of joint criminal enterprise has been developed andapplied in international proceedings for the realization of the goals ofinternational criminal law including the prevention of criminal activitiesand punishing the perpetrators. According to this theory, if an individualhas the necessary mental element, his not being directly involved incommitting the material element of the crime does not lead toexculpation. International criminal courts have adopted differentapproaches in realizing the mental element of crimes and have suggesteddifferent concepts. Hence, in some approaches (basic approaches) theconcept of “common intention” has been considered as a fundamentalbasis for constituting the mental element". In a second approach (asystematic approach), the intention of developing a criminal system" hasbeen regarded as the fundamental element of responsibility; in a thirdapproach, the ability to predict the crime has been seen as the mainbuilding block of the mental element. Although development of theseapproaches has helped international criminal law fulfill its objectives,they are seen as the emergence of challenges and questions in relation tothe limitations and framework of the aforementioned concepts and thepossibility of accommodating them with crimes with specific mens rea.These challenges represent the necessity of further investigation of mensrea in joint criminal enterprise with specific attention to principles of lawand the foundations and nature of the theory.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
9
v.
16
no.
2018
161
188
https://law.tabrizu.ac.ir/article_8538_484d4b2ce1d3e8b31bf68e69de520694.pdf
dx.doi.org/10.22034/law.2018.8538