Private Law
ABBAS Mirshekari; Fateme Sadat Hosseini; afrouz samadi
Abstract
Losing expected benefit means benefits, which have not been existed yet, but have the potential to come into existence. Considering this kind of loss as a compensable damages has always been a controversial issue. The incertitude is mostly because the loss itself and its measures cannot be evaluated ...
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Losing expected benefit means benefits, which have not been existed yet, but have the potential to come into existence. Considering this kind of loss as a compensable damages has always been a controversial issue. The incertitude is mostly because the loss itself and its measures cannot be evaluated for certain. Therefore, determining reasonable evaluation method might make compensating this damage much easier. In this article, a general study is conducted on this subject and we have tried to focus on the methods of evaluating this kind of damage, considering the judicial procedure as well as the experience of other legal systems. It is thus proposed, in case the tortfeasor’s act has ceased the previous status/benefit of the injured person, the injured person’s previous status must be considered as the basis of compensation. Otherwise, when the tortfeasor’s act has deprived the injured person from gaining an expected (new) benefit, the status of his peers are held as the basis of compensation. Moreover, the extremity of the assessment of the loss of profit is usually until when the injured person is put back into his previous status. Otherwise, custom and law are the two elements, which are used in order to determine this extremity.
Private Law
Ali kazemi
Abstract
The theory of questionable litigation as a result of the new economic approach to contracts, in the 2016 amendments to the French Civil Code, in three legal articles 1123, 1158, 1183 and with the aim of creating security and legal certainty about the fate of contracts for third parties or the counterparty ...
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The theory of questionable litigation as a result of the new economic approach to contracts, in the 2016 amendments to the French Civil Code, in three legal articles 1123, 1158, 1183 and with the aim of creating security and legal certainty about the fate of contracts for third parties or the counterparty of the contractual beneficiary, to was used and it is considered among the innovations and attractiveness of the new French contract law. This theory gives the third party or the counterparty of the definitive or possible beneficiary of the contracts the right to oblige the beneficiary to answer questions, in In case of non-response and clarification, the definite or possible beneficiary within a reasonable and conventional deadline, his right against the questioner will be considered forfeited, and legal security and certainty will prevail in the contract, and contrary to the traditional rights of contracts, the owner in a nosy contract with his original silence forced him to break the contract and file numerous lawsuits. In this theory, another right has been created for the principal. The application of this theory in Iran's contract law does not face any particular obstacle and until the amendment of Iran's civil law, the platform for the implementation of this theory is available, and due to its high economic efficiency and guarantee of legal security, its implementation will be useful and effective, and it will prevent the filing of lawsuits. It will prevent a lot, including the enforcement and rejection of transactions against the right of the beneficiary in the courts of justice.
Private Law
mostafa shahbazi; mahdi sajadikia
Abstract
By studying the existing works regarding the right of lien, it can be concluded that this right exists as an "absolute negative right" for the parties in the contracts, by which the parties can refuse to fulfill their obligations immediately after the conclusion of the contract. . make their ...
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By studying the existing works regarding the right of lien, it can be concluded that this right exists as an "absolute negative right" for the parties in the contracts, by which the parties can refuse to fulfill their obligations immediately after the conclusion of the contract. . make their obligations subject to fulfilling the obligations of the other party. In this theory, this right exists absolutely and unconditionally for each of the parties. This theory is stated in Article 377 of the Civil Code. In the research process, we come to the conclusion that this reading of the mentioned right is not without problems and it should be considered against some legal and jurisprudential principles and in some cases it leads to "intentional violation". In addition, the theory of "suspension" with the use of "objection and defense" can be presented as an alternative theory. According to this theory, not only is the lien not absolute and negative, but it is not multiplied by the number of parties.
Private Law
mohammad mojtaba rodijani; Hekmatullah Askari; Behnam Ensafi Azar
Abstract
The right of lien in Iranian law has been explained by jurists, considering Article 377 of the Civil Code. This article is included in the submission of the contract of sale and the jurists mainly deal with this article only in the topic of the right of lien. However, attention to other regulations, ...
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The right of lien in Iranian law has been explained by jurists, considering Article 377 of the Civil Code. This article is included in the submission of the contract of sale and the jurists mainly deal with this article only in the topic of the right of lien. However, attention to other regulations, jurisprudential analysis, and comparison with foreign laws demonstrate two types of liens can be identified in Iranian law: 1) equitable lien (in cases where there is a balance between the parties), 2) possessory lien (the legal right for a creditor to preserve the property of the debtor). This is while the review of the equitable lien in the works of legal writers did not leave room for an independent review of the lien of possession, even though this type of right of lien has been present in Iranian law since 1/6/1312 (1933) with the approval of the law on the debt of immigrants to guest houses and boarding houses. This article, through the descriptive-analytical method (library study), seeks to identify possessory lien as an independent institution in Iranian law with a comparative study.For this purpose, a comprehensive definition of the right of lien is provided in the present research: "The right of Lien is the legal right for a person that is settled in the property of others until the fulfillment of their debt and obligation." This definition, in addition to including various types of the right of lien by passing the traditional point of view, also opens the way for the use of other types of right of lien, including maritime lien, which is itself one of the type of the right of lien in possession, in Iranian law.
Private Law
Sajad Elmi; Ali Gharibe; Ismaeil Saghiri
Abstract
In the last part of Article 244 of the Civil Code, the legislator stipulates: "... the condition of corollary cannot be revocable" therefore, in order to explain the aforementioned ruling the majority of law scholars have stated that in cases where the condition of corollary is formed by the ...
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In the last part of Article 244 of the Civil Code, the legislator stipulates: "... the condition of corollary cannot be revocable" therefore, in order to explain the aforementioned ruling the majority of law scholars have stated that in cases where the condition of corollary is formed by the creation itself, in terms of the fulfillment of the condition, the possibility of its revocation is unthinkable, and in the event that the fulfillment of the mentioned condition is impossible for some reason, basically no condition has been formed to talk about its revocation, however, this research has not been accepted by jurists. Jurisprudential studies also indicate that according to great jurists, it is not possible to revoke the condition of corollary. Therefore, this research with a descriptive-analytical method, while examining the theories of law scholars and great jurists, including arguing the legal mechanisms of suspension and timing, viewing the registration of the said condition, considers the last part of Article 244 of the aforementioned law indicating the irrevocability of the condition of corollary in most cases and by presenting new analyses infers the possibility of revocability of the said condition in a series of cases.
Private Law
Ehsan Bahramy; Mostafa Elsan
Abstract
In order to defend a frivolous claim, the defendant may suffer from numerous fees such as litigation and expertise costs, attorney's fees, etc. One of the important questions is whether the demand for such fees caused by a frivolous claim is subject to proving the plaintiff's negligence or bad faith. ...
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In order to defend a frivolous claim, the defendant may suffer from numerous fees such as litigation and expertise costs, attorney's fees, etc. One of the important questions is whether the demand for such fees caused by a frivolous claim is subject to proving the plaintiff's negligence or bad faith. In response, the Iranian Law situation is not very clear; Because according to Article 109 of the Civil Procedure Code, the security for costs order for frivolous claims, which is considered one of the ways to fee-shifting, is not subject to proving the plaintiff's negligence or bad faith. On the other hand, according to Article 515 of this Code, demanding fees from the plaintiff is generally subject to proving his bad faith. Along with the study of American Federal Law, resolving this ambiguity and conflict is the subject of this article. In this article, after explaining the concept of a frivolous claim, it is concluded that identifying the plaintiff's negligence (not his bad faith) is necessary for demanding fees caused by frivolous claims. In order to identify the plaintiff's negligence, some points must be considered: firstly, the negligence is identified according to the circumstances of the lawsuit. Secondly, the negligence of the pro se litigant or unrepresented party is measured by comparing him with the reasonable one and the negligence of the lawyer is measured by comparing him with the reasonable lawyer. Thirdly, as a rule, the pro se litigant or unrepresented party may not be considered negligent for filing a claim without a legal basis.
Private Law
Asghar zirak barougi
Abstract
The indivisibility of the obligation requires that the obligor fulfill the obligation in full at maturity; And the obligee is not required to accept part of the obligation. However, according to the second part of Article 277 of the Civil Code, the judge can give grace period according to the situation ...
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The indivisibility of the obligation requires that the obligor fulfill the obligation in full at maturity; And the obligee is not required to accept part of the obligation. However, according to the second part of Article 277 of the Civil Code, the judge can give grace period according to the situation of the obligor. This sentence is taken from Article 1244 of the French Civil Code; But in practice it is abandoned Because in some recent laws, insolvency is a condition grace period to the debtor; And most courts do not rely on it in independent rulings. And most of the courts do not decision based on that. In this research, the historical origin, conditions and scope of grace period will be investigated. Is insolvency a condition for grace period? To be answered as a basic question. In short, we can say that grace period was introduced in ancient Rome and subsequently entered French law; And with several changes, finally in 2016, it was repeated with changes in Article 1342-4 of the French Civil Code. And with the conditions and in the absence of a legal prohibition, it is possible to grace period in financial obligations and it is not a condition to prove the insolvency.
Private Law
Mohammad Sadegh Mahdavi Rad; Mahmoud Habibi; Ismail shahsavandi; Alireza MASHHADIZADEH
Abstract
Proceedings of retrial in criminal and civil cases are different, it means that in criminal matters only the convicted person, the prosecutor executing the sentence and the Attorney General of the country have the right to request the retrial proceedings in civil matters according to articles 426 to ...
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Proceedings of retrial in criminal and civil cases are different, it means that in criminal matters only the convicted person, the prosecutor executing the sentence and the Attorney General of the country have the right to request the retrial proceedings in civil matters according to articles 426 to 441 of the Iranian Civil Procedure Law; First of all, the reasons for requesting re-trail are the reasons listed in Article 426. Secondly, according to Article 441, no one except the plantiffe and their successor can request a retrial. Thirdly, the request is limited by the deadline. Fourthly, unlike in criminal matters where the request is submitted to the court and the district court prescribes a retrial, in legal matters the retrial petition is submitted to the court that issued the final judgment and the court that issues an acceptance order and retail the proceedings. The legislator of Egypt has also recognized the retrial of proceedings in criminal matters in articles 441 to 457 of the Egyptian Criminal Procedure Law and considers the purpose of the retrial of proceedings in criminal matters to prevent the judge or the court from causing losses to the accused due to a mistake in issuing a sentence. Therefore, the request for retrial by the public prosecutor's office is requested by the convicted person and in the case of the death of the convicted person by the wife or one of the relatives of the deceased, the retrial in civil matters is considered by the Egyptian legislator from articles 241 to 247 of the civil procedure law, which is often with the prescribed directions
Private Law
Younes Yousefi Gorgi; mohammad bagher ghorbanvand; masuod alborzi verki; alireaza navariyan
Abstract
Despite the significance of the possibility of producing new evidence in the phase of appeal in a proceeding, there is no explicit rule in this regard. This issue is controversial among the scholars in the field of procedural law and the judges in connection with the appellate stage of a proceeding. ...
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Despite the significance of the possibility of producing new evidence in the phase of appeal in a proceeding, there is no explicit rule in this regard. This issue is controversial among the scholars in the field of procedural law and the judges in connection with the appellate stage of a proceeding. Most of the courts have induced from the laws and regulations which governs this issue, the fact that a judge can make reference to the new evidence in the appellate, such as new investigation, inspection of scene, or new deeds, even if those evidences have been out of the point or have been deviated or have not been considered by the court of first instance due to any reason. Such approach, from the view point of precedent in the field of appeal, has been provoked by the Iranian Law of Civil Procedure (1939) and Article 563 of French new Civil Procedure Code and it can be said that the judicial precedents in this regard have been established on the basis of the same laws. The only limitation thereof is reference to the new evidence for proving those claims which had been under consideration of the first instance court. However, such precedent is not compatible with jurisprudential (feghhi) history of appeal and the very texts of some laws. Thus the conservative approach of the courts in this regard should be taken into account In the process of the future development of legislation. By following such an approach the legislator can be pushed to revert to the previous laws and regulations concerning the appeal, taking into account some adjustments thereto for confronting the prolongation of adjudications.
Private Law
Rasoul Ahmadi Far
Abstract
Ability to execute a court judgment is one of the most neglected criteria in Iranian legal sources as a necessary condition for issuing a judgment. The purpose of this study is to analyze the importance of this criterion.In this research, the court judgment has been defined and identified and the criteria ...
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Ability to execute a court judgment is one of the most neglected criteria in Iranian legal sources as a necessary condition for issuing a judgment. The purpose of this study is to analyze the importance of this criterion.In this research, the court judgment has been defined and identified and the criteria for its issuance and implementation have been reviewed.Then, the criterion of enforceability was considered as one of the necessary criteria for issuing a court judgment. According to the results of this research, the ability to execute is one of the necessary conditions for issuing a judgment, and the court must pay attention to the fact that the issued judgment can be executed according to the legal conditions at the time of issuance.Refuse to issue such a judgment in an audio where it is not possible to execute it.Key words: Ineffective sentence, court order, sentence enforcement, enforceability, sentence, court order, vote, court ruling
Private Law
seyede motahare hosseyni; Leila sadat Asadi; seyed mohsen fattahi
Abstract
There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where ...
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There are three approaches regarding the divorce types on behalf of the wife as husband's advocacy (derived from Article26 of the Family Protection Law 2013): "uncontested divorce theory" where a certificate of compromise impossibility is issued, "contested divorce theory" at the wife's request; where the divorce decree is issued and "the two-step theory of such divorce process". The different effects resulting from the acceptance of each of these approaches on the rights of each couples in the judicial process and implementing stage of divorce, confirm the necessity of investigating the issue.This descriptive-analytical study was conducted by examining the advisory theories of the Judiciary Law Department and using the votes issued by the family courts and issues discussed in the judicial sessions; to answer this main question: "what is the divorce type on behalf of the wife as husband's advocacy and its effects". The results revealed that, Article26 of the aforementioned law, in terms of determining the divorce type (on husband's behalf) is ambiguous and therefore suggests a revised text. In addition it considers the best interpretation of the above article in being two-stage of wife divorce on husband's behalf: firstly, verification lawsuit for the power of attorney for the wife, and then a request to issue a certificate of compromise impossibility in the uncontested divorce form. This theory, which is more consistent with the provisions of Article 26, solves the problems faced by the other two theories, especially in terms of closed matters' validity in case of not executing the divorce decree within the deadline stipulated in Article34 of the Family Protection Law.
Private Law
Reza Shokoohizadeh
Abstract
To identify the subject of this Article, the pure defense first must be separated from hybrid counterclaim. Hybrid counter claim has a dual function: the first aim of this claim is to reject the adversary claim. On the other hand, as similar as the pure counterclaim, it renders a claim, out of the object ...
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To identify the subject of this Article, the pure defense first must be separated from hybrid counterclaim. Hybrid counter claim has a dual function: the first aim of this claim is to reject the adversary claim. On the other hand, as similar as the pure counterclaim, it renders a claim, out of the object of principal claim. In Iranian Law, some proving criteria have been rendered by legal writers to distinguish these two judicial acts. In these theories the probative value of the defendant’s documents, determine the necessity of filing a counterclaim. Upon analysis of this paper, the proving criteria in theory and practice are not convincing for distinction of counterclaim from merit defense. Criterion accepted in this Article is that in counterclaim, the defendant claim to get a profit other than mere reject of adversary’s claim. In spite of apparent simplicity of this criterion of distinction of counterclaim from merit defense, its practical application is not without complexity.
Private Law
Ali Tahmasebi
Abstract
At the end of the lease contract, the tenant must vacate the property. However, in certain cases, even after the end of the contract, the legal rules may entitle him to continue his possession and do not recognize the lessor’s right to evict him. Therefore, despite the silence of the Civil Code, ...
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At the end of the lease contract, the tenant must vacate the property. However, in certain cases, even after the end of the contract, the legal rules may entitle him to continue his possession and do not recognize the lessor’s right to evict him. Therefore, despite the silence of the Civil Code, it can be said that if the lessee has created constructions (building, planting trees, digging a well, etc.) with the lessor’s permission, the latter one cannot evict him from the property at the end of the contract, because people invest (construct a building) thinking that the legal system supports their reasonable expectations, and the lack of sufficient support for this expectation will destroy the incentive to invest and will have harmful effects on the economy. Also, in cases where due to the lack of legal permission for transferring endowed properties, the ownership documents of individuals have been annulled by special laws, the law recognizes them the right of priority in possession and the lessor cannot demand for their eviction unless the extension of the contract is not compatible with endowment’s interest.
Private Law
Badie fathi; Khayrollah Hormozi
Abstract
The indivisibility of claims in the civil procedure of Iran and FranceAbstract The indivisibility of claims is different from the indivisibility of one claim and the indivisibility of judgments. In the Civil Procedure Code of Iran the term indivisibility of claims (Articles 104, 298) and the indivisibility ...
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The indivisibility of claims in the civil procedure of Iran and FranceAbstract The indivisibility of claims is different from the indivisibility of one claim and the indivisibility of judgments. In the Civil Procedure Code of Iran the term indivisibility of claims (Articles 104, 298) and the indivisibility and inseparability of judgments (Articles 308, 359, 404, 425) have appeared, but the term indivisibility of claims has not come.inseparability of claims does not cause "dependency of procedure" but necessarily creates "unity of procedure" between two or more lawsuits. Therefore, indivisible claims are processed as an inseparable "whole".It seems that the definition mentioned about complete connection in Article 141 of the Civil Procedure Law of Iran is not only the definition of connection, but it is the definition of the highest level of indivisibility of claims.However, for the indivisibility of claims, complete connection is not the only criterion and it has other criteria as well. Indivisibility in the proceedings also creates the effects of the unity of the procedure. For example, when the indivisibility of claims is realized, the expansion of jurisdiction occurs, and also the events of proceedings in one cause an effect on the other, and a appeal against one decision causes a appeal against another decision.Key words: indivisibility, inseparability, complete connection, dependence of procedure, unity of procedure.
Private Law
Mahmoud Kazemi; Ali Ghesmati Tabrizi
Abstract
What happens if more than one person is blamed for causing an injury? It is clear that the liability must be divided between them, but the problem is the criterion of apportionment. Should the liability be apportioned equally or differently? If the latter is true, how the share of anyone is determined? ...
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What happens if more than one person is blamed for causing an injury? It is clear that the liability must be divided between them, but the problem is the criterion of apportionment. Should the liability be apportioned equally or differently? If the latter is true, how the share of anyone is determined? In foreign legal systems, there are different ideas in this regard, and finally, it is up to the court to apportion the damages fairly. Islamic law has accepted the theory of equality of liability. After the approval of the Islamic Penal Code, this view entered into the law of Iran, but the jurisprudence with the justification that the theory of equality is based on the assumption of the equal effect of each of the tortfeasors accepted the possibility of proving otherwise and accordingly, each share was determined based on the extent of its impact on the occurrence of loss. The Islamic Penal Code in 1992, under the influence of existing doctrine and jurisprudence, accepted this view in Articles 526 and 527, while in Articles 453, 528, and 533, the theory of equality of responsibility has been followed. In this article, we have tried to explain the foundation of the theory of equality in Fiqh and its results in interpreting the Islamic Penal Code.
Private Law
Ali Eslamipanah; kamel taqizadeh
Abstract
As the emergence of the internet has brought a lot in all scientific and practical positive aspects, with the possibility of accessing intellectual property rights, it has created challenges in this field. One of the common examples of violation of these rights has been the phenomena ...
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As the emergence of the internet has brought a lot in all scientific and practical positive aspects, with the possibility of accessing intellectual property rights, it has created challenges in this field. One of the common examples of violation of these rights has been the phenomena of cybersquatting, which the authors of this article should know by examining the methods and has raised the central question of legal ways to resolve the dispute caused by that. In the present research, first by descriptive method, the concepts of trademark, domain name, and cybersquatting have been defined. Then, with a method of analysis and comparison, the process of hearing this category of claims in the WIPO Mediation and Arbitration Center with references to the Uniform Domain Name Dispute Resolution Policy (icon), it has been examined and compared with the existing methods in some national and regional law systems.The findings of this research will reveal while the principle of the jurisdiction of the courts is universal, and there is no doubt about the possibility of litigation in the national judiciary, still, the disadvantages of such a method, such as the choice of the competent authority, the rule of law, and the execution of verdicts, have always led the parties to the arbitration. In this regard, the UDRP rules contain rules for dealing with such claims that many countries have tried to settle disputes arising out of the registration of a domain that is contrary to the rights of the trademark owner by localizing its rules; The United Kingdom, Australia, and ASEAN members, among others, have different approaches.
Private Law
Mohammed Hussain Shahbazi; meysam akbari; hani hajian
Abstract
Non- profit damage is one of the complex and controversial issues in Iran's legal system that disputes arise from Note 2 of Article 515 of the Code of Civil Procedure 1379; The enactment of the Criminal Procedure Code of1392,which in Article 14 and Note 2,there are changes compared to the previous law,Not ...
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Non- profit damage is one of the complex and controversial issues in Iran's legal system that disputes arise from Note 2 of Article 515 of the Code of Civil Procedure 1379; The enactment of the Criminal Procedure Code of1392,which in Article 14 and Note 2,there are changes compared to the previous law,Not only has it not removed the ambiguity, but it has added to it.In order to remove the existing ambiguities,first of all, non-profit Must be analyzed in jurisprudence And with a new perspective on the concept of property,benefit and profit, we must examine the issue that the damage to non-profit(profit)is guaranteed?Is it a non-profit property that is wasted?Why in Note2to Article14, is the only loss of possible benefits guaranteed?This research examines these issues with a library tool and with a descriptive-analytical method.Using the available data, property can be divided into1-identical 2- benefit 3-potential benefit 4-imaginary benefit and assumed the properties that are in the property of individuals in four forms:1- existing,2- potentially existing; in the view of actual custom, 3- potentially existing; and in the view of extinct custom,4- extinct.Non-profit or the same profit in the sense of fictitious benefit of property is not assumed and therefore, can't be claimed. On the other hand, loss of potential benefit and benefit, in the case of existing potential benefit, in the case of extinct custom in terms of non-validity of property, Does not create a guarantee, and in the case of existing potential benefit (in the view of actual custom), in the sense that custom's property applies to the guarantee. Note2:Article 14 of the Code of Criminal Procedure seeks to express the possibility of losing the existing potential benefit and in the view of actual custom, and mentioning the loss as a means of guarantee is included in the prevailing case.
Private Law
Mahdi Hasanzadeh
Abstract
The Code of Civil Procedure does not specify whether a verdict challenged by a third party is final or whether a non-final verdict can be challenged by a third party. In this regard, different and reciprocal views and analyzes are presented. The statement of Article 422 of the Code of Civil Procedure ...
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The Code of Civil Procedure does not specify whether a verdict challenged by a third party is final or whether a non-final verdict can be challenged by a third party. In this regard, different and reciprocal views and analyzes are presented. The statement of Article 422 of the Code of Civil Procedure regarding the objection of a third party, before the execution of the sentence and after it, is vague and debatable and has several problems. Examining the issue shows that considering various aspects, it is preferable not to consider the non-final verdict as objectionable to a third party and to consider the third party objection as specific to the final judgment. Article 422 of the Code of Civil Procedure should also be taken to mean that if a long period of time has elapsed since the execution of the sentence, in such a way as to indicate that the third party, if he had a right, waived it, after that, the third party objection will not be accepted unless it proves otherwise.
Private Law
Mojtaba Zamani; Jafar Asgari
Abstract
In cases where one of the parties to the contract, for any reason, does not want or cannot fulfill its obligations in due time, the other party faces an unforeseen or anticipatory breach. Anticipatory breach of contract causes essential and consequential damages to the other party. Contractual damages ...
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In cases where one of the parties to the contract, for any reason, does not want or cannot fulfill its obligations in due time, the other party faces an unforeseen or anticipatory breach. Anticipatory breach of contract causes essential and consequential damages to the other party. Contractual damages often result from an actual breach of contract. However, Anticipatory breach can also lead to essential and consequential damages. Some contractual damages do not arise directly from a breach of contract, but are usually in the normal and reasonable course of affairs to breach of contract. However, the possibility of compensating for such damages is facing with a major problem in Iranian law. The most important impediment to compensating for such losses is the possibility and lack of customary causal relationship between the damage and the harmful act. This research seeks to assess the feasibility of compensating for consequential damages arising from Anticipatory breach of contract in Iranian law by analytical-descriptive method and by invoking to certain jurisprudential and legal principles and rules such as La-Zarar (No-Harm), reciprocity, assumption of the wise and the governance of will.
Private Law
Abdolvahid Sabaghi; fereydoon nahreyni; alireza Azarbayejani
Abstract
AbstractThe principle of immutability of the elements of litigation prevents unregulated seizures of the elements of litigation. Any change in the claim is subject to the conditions set forth in Article 98 of the Code of Civil Procedure. These considerations are in line with the principle of compliance ...
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AbstractThe principle of immutability of the elements of litigation prevents unregulated seizures of the elements of litigation. Any change in the claim is subject to the conditions set forth in Article 98 of the Code of Civil Procedure. These considerations are in line with the principle of compliance and protection of the defendant's rights against any surprises, The subject of the lawsuit and the transferee is the beneficiary in the lawsuit and has caused the creation of a new document resulting from this transfer and apparently has challenged the petition. The protection of the law is primarily the duty of the law and then the court, and the silence, ambiguity or conciseness of the law should not be used as a pretext by a party who has found himself convicted and intends to exclude the case from the hearing and hear the case. Sterilize the case. This research with a descriptive analytical method leads to the conclusion that by paying attention to these two changes in the elements of litigation, the gap can be filled and the judge can be given the ability to pay attention to the legal action. , At the same time as inviting the transferee to the trial, make a change in the request It is also considered as one of the effects of transferring the lawsuit and in parallel with considering the request stated in the petition, forcibly decides in the voting session on the new request and also on the document belonging to the deputy, either negatively or positively, because The authority extends its contents to the proceedings, including the recent document created during the hearing of the case, which, following the summoning of the deputy to the proceedings, a decision is also made regarding this document.
Private Law
Majid Azizyani
Abstract
Proof of ownership litigation in the various stages of property registration, there are rules about how to register such property, which must be taken into account, especially in real estate, which is subject to legal requirements and formalities and such a request cannot be accepted absolutely in all ...
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Proof of ownership litigation in the various stages of property registration, there are rules about how to register such property, which must be taken into account, especially in real estate, which is subject to legal requirements and formalities and such a request cannot be accepted absolutely in all immovable property with a single shape and quality. Action for ownership Proof is one of civil action that there are many differences of verdicts about accepting or rejecting it in legal authorities ,so that some of courts has accepted action for ownership Proof based on precedent No. 569 dated Dec.31,1991 of General Board of Supreme Court of Iran and believe that Legal obligation of owner to demand for their self-property registration in part which Public registration of real estate is advertised , not prevented that courts of justice adjudicate about disputes over property ownership and in some of courts avoid from such action by virtue of article 22,46,47 and 48 of Real Property Law and contents of precedent No. 672 dated Dec.21,2004 of General Board of Supreme Court of Iran and also contents law of course to pursue land without official deed. In present article , we review proof of ownership is basically devoid of description of the claim and opposition to the principle or appearance and it is merely a form of litigation that the courts are not the reference of the preparation of the case. The authority to declare ownership of immovable property is the registration authorities.
Private Law
Yasser Gholami; Meysam Javadi; Mohammad Bagher Moghaddasi
Abstract
The enforcement of verdict is the most important stage of the litigation process in which attempted to execution of the verdict through the introduction and identification of the property of losing party. In this regard, a large part of the Civil Verdicts Enforcement Act and the Execution Method of Financial ...
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The enforcement of verdict is the most important stage of the litigation process in which attempted to execution of the verdict through the introduction and identification of the property of losing party. In this regard, a large part of the Civil Verdicts Enforcement Act and the Execution Method of Financial Convictions Act dedicated to this issue. A look to these laws shows that laws generally recognize customary objective property and stated the manner in which the judgment debt can be executed from there. However, in the last decade, following the development of new technologies, digital currencies have emerged as rivals of real currencies and have gained public acceptance. Although laws on these currencies has not been approved in Iranian legal System so far, but the doctrine and judicial procedure has issued that these currencies is property. In this regard, this question arises if at the time of execution of the verdict, digital currency identified and introduced - as the property of the losing property– does the convict can be executed from these currencies? According to the results of this research, the answer to this question is yes. This study, after mentioning an introduction on the nature of digital currencies, deals with the issue of the ability to identify, seize and sell digital currencies and some of its important sub-categories. Although the relevant laws do not provide for a regulation on these currencies, the implementation of judicial rulings from these currencies will be facilitated by relying on the general principles governing the implementation of rulings and the formulation of transparent rules in the future and training of judges. It will prevent the fragmentation of procedures. This research tries to answer the issues that are raised in the implementation of court rulings from the place of digital currencies in a descriptive-analytical method.
Private Law
Abbas Mirshkari; FatemehSadat Hosseini
Abstract
Moral loss is a kind of harm which damages the person,s non-financial right. At first, there was doubt about the possibility of compensation for this type of loss. For example, in the USA legal system, they did not pay enough attention to victim,s moral losses as they do for financial losses. It was ...
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Moral loss is a kind of harm which damages the person,s non-financial right. At first, there was doubt about the possibility of compensation for this type of loss. For example, in the USA legal system, they did not pay enough attention to victim,s moral losses as they do for financial losses. It was argued that moral damages are not visible and so we don’t know the real loss and we should trust just to the victim. In addition, the lack of a structured method of compensation and assessment, makes this kind of loss, secondary damages. How ever, especially, using the psychology Science, courts gradually began to accept moral damages.In Iran, Also there was doubt about moral damages. But today Due to the criminal procedure code which approved in 1392, the compensation for moral damages is acceptable. But what is still vague, is the method. How ever, it seems using some methods like apologize or financial compensation are more practical.Ofcourse in each case this is the judge who should recognize which approach is better and proportional to the plaintiff and his personal loss. In this article we try to study the methods of moral compensation in Iran legal system, and we will use the American studies about this subject and also the cases which raised in Iran judicial procedure.
Private Law
hamid afkar; abdollah khodabakhshi
Abstract
Being the litigant of the insurer together with the responsible for the accident is legally and economically justifiable for the injured party, but explaining the responsibility of multiple defendants to pay a single debt is one of the problems of the judge in issuing a verdict; In such a way that in ...
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Being the litigant of the insurer together with the responsible for the accident is legally and economically justifiable for the injured party, but explaining the responsibility of multiple defendants to pay a single debt is one of the problems of the judge in issuing a verdict; In such a way that in some cases the subject of litigation to one of the defendants is silenced or the litigation is completely rejected. The purpose of this study is to explain the position of the insurer and the person who caused the accident in the lawsuit with descriptive and analytical methods, in addition to recognizing the need to decide on each of them, to explain their responsibility in the sentence and to provide logical theories for compensation. The inference of the independent or collective liability of the insured and the insurer is based on various reasons. Sharing liability between the insured and the insurer has no logical or legal basis, and the liability of the insurer's collateral does not serve the purpose of better compensating the injured party. The court’s waiting for invoking the injured party to the insurance contract also does not solve the problem of explaining the liability of multiple defendants, and differences in the type and amount of liability remain. Recognition of joint and several liability of the insured and the insurer in the Compulsory Insurance Law adopted in 2016 is compatible with the aim of better guaranteeing the injured party, and some law bases and legal justifications justify the need for the theory of joint and several liability of the insurer and person who caused the accident.
Private Law
Mostafa Elsan; MohammadReza Manouchehri; sajad mazloumi
Abstract
Detention of a convicted person in a civil case is considered an exceptional subject. In the Iranian legal system, it is applied as a last resort for a situation where the convict is not willing to execute the convictions in any way and no property is found from him. The jurists - and following them ...
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Detention of a convicted person in a civil case is considered an exceptional subject. In the Iranian legal system, it is applied as a last resort for a situation where the convict is not willing to execute the convictions in any way and no property is found from him. The jurists - and following them the Iranian legal system - have always been cautious in this regard and the legislator is under different assumptions such as filing a petition for insolvency or finding property of the convict, and denies his/her detention. In this paper, we examine the conditions and challenges to the detention of a convicted person in civil matters and we will discuss the legal and practical problems of the issue. Rare cases in which the possibility of detaining a convicted person is not explicitly stated by law, including arbitral awards, foreign awards, restoration of executive operations and the impossibility of enforcing an objective award, are examined in this article, relying on judicial procedure and practical problems.
