Private Law
Hassan Badini; Saeed Siahbidi Kermanshahi
Abstract
Conflict of interests is the set of circumstances that create the risk that one's decisions or professional actions in relation to a person who trusts him or her will be affected by personal interests. Conflict of interests is one of the concepts that is essential for proper understanding in any field, ...
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Conflict of interests is the set of circumstances that create the risk that one's decisions or professional actions in relation to a person who trusts him or her will be affected by personal interests. Conflict of interests is one of the concepts that is essential for proper understanding in any field, because a proper understanding of this concept and its contexts provides the way for its proper management. The main question of the present study is what are the dimensions and scope of the conflict of interest in private law? The authors believe that the constituent elements of conflict of interests is profit, conflict, judgment and relationship. The presence of these elements in the relationships of individuals irrespective of whether the relationship is public law or private law creates a conflict of interests. This study has shown that conflict of interests in private law can be achieved either in a trust-based relationship (such as a lawyer-client relationship) or in a relationship based on impartiality (such as litigation) and Conflict of interests are not conceivable in other relationships. In this study, some of the most important instances that may be confused with the discussion of conflict of interests have been highlighted. Understanding instances of conflict of interests is a prelude to the legal management of these conflicts to avoid their harmful effects or to compensate them. In this article, the legal management strategy of these conflicts and reform proposals for the Iranian legal system is explained.
Private Law
Ghasem Mohammadi; Gholamali Seyfi; Mehdi Karimian ravandi
Abstract
In principle, the effectiveness of conciliation provisions depends on a set of factors other than the will of the parties, such as the will of the legislator and the role of the judge. According to Article 10 of the Civil Code, the parties have full freedom of agreement, but this freedom is not absolute, ...
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In principle, the effectiveness of conciliation provisions depends on a set of factors other than the will of the parties, such as the will of the legislator and the role of the judge. According to Article 10 of the Civil Code, the parties have full freedom of agreement, but this freedom is not absolute, and the supposed legal plans will change the structure of the contract.Now the question arises to what extent the legislator can play a role in the development and restriction of contractual freedom, given the economic, social, welfare and development needs by benefiting from special laws? And to what extent do law, custom and sharia prefer the public interest in preferring the necessities and pursuing public interests arising from the conflict of personal and public interest?To explain this important point in this article, coercion in the contracting board is divided into two types of elementary and structural coercion, and these results obtained by induction in the opinions of courts, scientific sources and judicial procedures indicate that: First, the courts force the parties to deviate from the conciliation results to a minimum or maximum, and the public interest is emphasized in the issuance of judgments as well as in judicial procedures. Secondly, the cases mentioned in the paragraphs of Article 190 of the Civil Code imply the obligation of elements to the extent that in the dominant aspect, in all agreements, they are present as a necessity in the composition and are irrevocable, but on the contrary, due to the structure of contracts. Certain special parties are required to comply with the rules arising from the requirements and restrictions that have arisen in the context of coercion arising from the elements and will require them to make the desired changes to elements of the contract.
Private Law
Koorosh Ostovar Sangari
Abstract
AbstractOne of the issues raised after the establishment of the Administrative Court of Justice was who can appear as a plaintiff in the Administrative Court of Justice and whether state agencies can appear as a plaintiff in the Administrative Court of Justice. According to the rulings No. 37, 38 and ...
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AbstractOne of the issues raised after the establishment of the Administrative Court of Justice was who can appear as a plaintiff in the Administrative Court of Justice and whether state agencies can appear as a plaintiff in the Administrative Court of Justice. According to the rulings No. 37, 38 and 39 of the Court of Administrative Justice in 1368, state agencies can in no way be present in the branches of the Court of Administrative Justice as a plaintiff. This decision was approved by the General Assembly of the Supreme Court in No. 602 in 1374, but the question was raised that what is the task of the state apparatus in relation to matters within the jurisdiction of the Court of Administrative Justice? In 2007, the General Assembly of the Supreme Court, Decision No. 699, tried to somehow open this deadlock and find a solution to this problem. However, these votes of the General Assembly of the Supreme Court created other problems, hence the vote of unity. Procedure No. 792 was issued in July 2016 and has somehow annulled votes No. 602 and 699. The author believes that vote 972 is a positive development in the separation of powers of the Court of Administrative Justice and public courts.Keywords: Procedural Unity Vote, Jurisdiction, Administrative Court of Justice, Public Court,State.
Private Law
issa moghaddam
Abstract
According to the undue enrichment rule, a person is not entitled to be enriched by another detriment without a Legal cause . The first issue that arises is the existence and scope of the rule in commercial law due to the differences in this field in Iranian law. Another issue is that due to the adherence ...
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According to the undue enrichment rule, a person is not entitled to be enriched by another detriment without a Legal cause . The first issue that arises is the existence and scope of the rule in commercial law due to the differences in this field in Iranian law. Another issue is that due to the adherence of business issues to certain principles and standards, is there a difference between trade and non-trade in terms of nature and basis and undue enrichment? The analysis of these cases is necessary to enable the correct identification of instances of undue enrichment in business matters. The research method is descriptive-analytical and the library method has been used to collect research data. The most important result is that there should be no doubt about its existence in commercial law, because there are cases that only comply with this rule. Also, the rule in commercial law has a complementary and secondary aspect and it should not be applied in a way that disrupts the structure of the legal system. In terms of nature, although there is no difference between undue enrichment in trade with others, but in terms of how to enrich it, there are differences in the cases that must be considered in order to achieve it. The basis of the rule in commercial law, in addition to the aspect of compensation from the damaged party, there is also the protection of the macro interest of commerce. Moreover, a lawsuit for undue enrichment in commercial affairs is a civil lawsuit and its conditions must be met according to the evidence of a civil lawsuit, so it is beyond the jurisdiction of commercial courts. Nevertheless, it is better to include these matters in the relevant regulations in the jurisdiction of these courts.
Private Law
Mohammadkaezem Mahtabpoor
Abstract
Determining the liability basis of professionals (such as doctors, lawyers and engeeniers), is one of the most important matters in different legal systems. The problem regarding determing the liability of these people is, on one hand, the differences exist between service providng and product manufacturing ...
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Determining the liability basis of professionals (such as doctors, lawyers and engeeniers), is one of the most important matters in different legal systems. The problem regarding determing the liability of these people is, on one hand, the differences exist between service providng and product manufacturing which makes it difficult to provide a general principle regarding civil liability for all of them. On the other hand, their clients, due to lack of science and skill, could not prove professionals’ fault.The social responsibility of these people, make determing the basis of their liability, more harsh.Although in both French and Common law legal systems, the main theory regarding the professionals’ liability is based on fault, there is some solutions to impose strict liability in some cases in order to protect their clients. Knowing this solutions and ocalizing them, will lead us to the general principle of professionals’ liability under Iranian legal system.In order to sloved the aforementioned problem in Iranian legal system and for the porpuse of balancing between professionals’ liability and social responsibility (mossion), in case service providing ends in goods manufacturing, such as architect and pharmesict, “Etlaf” and “Tasbib” shall be considered as the basis of the liability. In case of mere service providing, where there is a breach of an “obligation by result”, no- fault liability and where there is a breach of an “obligation by means”, fault base liability seems suitable. Any loss to third parties is included in the latter one.
Private Law
Ali Akbar Farahzadi; SeyedRasool Mirnejad
Abstract
The litigation process contains rules and conditions set by the legislature and the litigants must abide by these rules to end the legal dispute and thus end the legal dispute. However, these rules are the means of exercising the right and therefore must be interpreted in such a way as not to prevent ...
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The litigation process contains rules and conditions set by the legislature and the litigants must abide by these rules to end the legal dispute and thus end the legal dispute. However, these rules are the means of exercising the right and therefore must be interpreted in such a way as not to prevent the court from entering into the nature of the dispute and, consequently, the chapter on hostility. In this regard, one of the effects of accepting this analysis is to prevent re-litigation by amendment and correcting the shortcomings of the litigation. This will save time and money for the litigants and increase trust in the litigation system. On this basis, the principle of restoration of the proceedings has been mentioned in order to create and accept a general rule according to which the court, together with the litigants, should place the principle on the remediation of the defects of the proceedings and as a result move towards completion. However, the scope and conditions related to the implementation of the principle of judicial restoration are important issues that are mentioned in this article.
Private Law
mahmud khdeman; abootaleb koosha; fatemeh nouri
Abstract
Cryptocurrencies are a decentralized form of digital currency which are presented with new technology identify the nature of cryptocurrencies are closely related to recognizing the technical structure of each of its types. Therefore, offering a unit nature in spite of various types are not possible and ...
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Cryptocurrencies are a decentralized form of digital currency which are presented with new technology identify the nature of cryptocurrencies are closely related to recognizing the technical structure of each of its types. Therefore, offering a unit nature in spite of various types are not possible and it is objectionable. Cryptocurrencies or species of intangible property or in case of extending of this concept to intangible property, it's considered as property which have customary and juridical pecuniary. Although cryptocurrencies theoretically and fundamentally have the functions of money but under monetary law as a currency need to identified by governments. Some types of currency codes such as national cryptocurrencies which created by countries they have this identification but other type, as long as they aren’t recognized in laws, doesn't considered as money and they are just digital assets. Some types of currency codes mean tokens that issued in the first coin presentation are matched with conception of securities. In this regard, several resolutions have been issued as yet but majority of them are incomplete and out of bounds. Therefore, its essential for the country's legislative authorities to enter this field and prepare a comprehensive law.
Private Law
Mohammad Arian
Abstract
Fraud as an exception to the principle of independence of documentary credit from the underlying contract is one of the key challenges facing the issuing bank, which in particular has been more the center of attention in deferred payment letter of credits. In case, the proceeds of the credit are assigned ...
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Fraud as an exception to the principle of independence of documentary credit from the underlying contract is one of the key challenges facing the issuing bank, which in particular has been more the center of attention in deferred payment letter of credits. In case, the proceeds of the credit are assigned to third party by the beneficiary through the discount of the credit and it is later discovered that the beneficiary had committed fraud, so in such a case, this question arises whether in Iranian legal system, the third party assignee shall be immune from the effects of fraud committed by the beneficiary? In this regard, some believe that according to the general rule that "no one can transfer to another more rights than he has", the assignee of proceeds shall not be immune from the effects of fraud. From a comparative law perspective, there are two profoundly different approaches concerning the impact of fraud on the rights of the assignee of proceeds. According to the first approach accepted in the English legal system, an assignee of proceeds shall not be immune from fraud, even if it is considered as a bona fide holder. However, according to the second approach which is reflected in Section 109 of Article 5 of the US Uniform Commercial Code, the assignee shall be immune from fraud on condition that it is considered as a bona fide holder. In Iranian legal system, although there is no specific law in the field of documentary credits, such a person must be immune from the effects of fraud having regard to the banking practice, case law, and legal doctrine, as this is requisite for maintaining the commercial utility of letter of credit as an important financing mechanism.
Private Law
ali amiri; Javad Tahmasebi; Batool Pakzad
Abstract
"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although ...
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"Management of referral of criminal cases in guaranteeing an impartial trial", while having an intangible and intangible feature in the trial process, has an extraordinary role in the formal and substantive processing of proceedings and the strategy of the country's supreme judicial management. Although with the return of the legislator from the managerial approach and determining the two criteria of "specialization" and "order", in drafting Articles 448 and 465 of the Code of Criminal Procedure, It has taken an important step towards the rule of law and the oversight of managers, but the lack of full entry into this field, The challenge of overcoming this problem remains unresolved. And despite the Supreme Disciplinary Court's commitment to legislative safeguard policies, the lack of coherent rules and adequate safeguards in this regard allows any referring authority to abuse its powers and legal loopholes to curb the initiative. And by his purposeful referral, divert the course of the proceedings from the path of justice and deprive the parties to the dispute of the right to equality and the enjoyment of an impartial tribunal. Therefore, diligence in training and reducing the concentration of power of the referral authority, selection and appointment of experienced, committed and specialized managers, explaining the position of the referral in the trial process and aspects of appealing against votes, setting appropriate deadlines and comprehensive criteria for referral, along with performance guarantees Special and providing desirable oversight, can help to refer wisely and impartially and thus improve the efficiency of the judiciary and community satisfaction.
Private Law
Iraj Babaei; Morteza Torabi
Abstract
Human rights are traditionally discussed in public law and in government-citizen relations, but this does not mean denying its impact on private law. In contract law, principles such as the rule of will or freedom of contract are themselves in line with human rights principles, but are not sufficient ...
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Human rights are traditionally discussed in public law and in government-citizen relations, but this does not mean denying its impact on private law. In contract law, principles such as the rule of will or freedom of contract are themselves in line with human rights principles, but are not sufficient to fully protect fundamental human rights. For this purpose, it is necessary that other principles can be introduced as principles in line with traditional principles in contract law. The most basic principle of human rights is the principle of human dignity. The question is, to what extent and in what way can this principle be applied in contract law? Can fundamental rights derived from this human rights principle be revoked by a contract? In this article, with emphasis on various cases in the jurisprudence of some countries and the European Court of Human Rights, we have come to the conclusion that The principle of freedom, which includes important rights such as human dignity, the right to respect for family life, and the principle of non-discrimination, which encompasses various aspects, sometimes as a limiting factor of the will to prevent the infringement of a condition or contract contrary to them and sometimes fundamental rights arising from these principles. As general civil rights, they are also partially irrevocable or revocable. The research method has been library and by studying the judicial practice of countries and Iran.
Private Law
Mansoor Amini; javad piri
Abstract
Legal systems and International documents to ensure the rights of persons in contractual relations have paid attention to various sanctions and have accepted the compensation method as one of the most important sanctions ; therefore, there is no doubt that damages in legal systems and international documents ...
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Legal systems and International documents to ensure the rights of persons in contractual relations have paid attention to various sanctions and have accepted the compensation method as one of the most important sanctions ; therefore, there is no doubt that damages in legal systems and international documents are compensable. However, when the damage is subject to the judgment, the criterion of Assessment of damages becomes important; because the lack of criteria for Assessment of damage leads to inefficiency of the sanction. Accordingly, in legal systems and particularly international documents, have been attempted to provide criteria for assessing damages. Regarding the weakness and ambiguity of the Iranian legal system on damages, the results of this study can be useful for lawyers and judges and on the other hand, it can be useful for the legislator to inspire the criteria provided in order Regulations.
Private Law
Hosein Javaheri mohammadi
Abstract
The outbreak of the coronavirus was first reported in Wuhan, China in December 2019, and gradually spread to the rest of the world, including Iran. Among the effects of this epidemic are the hardening, frustration, and impossibility of contractual obligations, which are discussed under the Hardship, ...
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The outbreak of the coronavirus was first reported in Wuhan, China in December 2019, and gradually spread to the rest of the world, including Iran. Among the effects of this epidemic are the hardening, frustration, and impossibility of contractual obligations, which are discussed under the Hardship, Frustration, and force majeure, respectively. Of these excuses, our legal system has only accepted the explicit criteria governing the Force Majeure, which is also based on the impossibility of the commitment. the months-long experience of countries and the comments of official national judicial authorities indicate a tendency to accept the maximum of coronavirus conditions as Force Majeure. The corona pandemic and its limitations are temporary in nature. In the meantime, however, it will be necessary to consider the type of commitment in terms of unity or plurality of the desired, with this explanation that in cases of unity of the desired, the conditions resulting from coronavirus will essentially lead to the termination of the contract and the discharge of the obligation, as opposed to the multiplicity of the desired, which temporarily impedes the suspension of the restrained part and the retention of the obligation in the possible parts. Predictability of legal prohibitions due to corona outbreak has discharged a wide spectrum of corona-driven conditions from the title of Force Majeure. Ultimately, it is the judge who must have to state if they meet the conditions of Force Majeure, and the mere declaration of a state of emergency by national and international authorities will have no effect on its realization in single cases. However, the legislature's intervention in determining the legal status of obligations that have become hard-to-perform due to corona pandemic, results in judges not needing to rely heavily on secondary rules such as principle of “la zarar” or “la haraj” principle” of hardship.
Private Law
Seyyed Mostafa Mohaghegh Damad; hani hajian
Abstract
By passing Article 729 of Civil Procedure Code of 1318, term of “Civil Penalty” was entered in Iranian legal system which of course it is an adaptation from "Astrant" –a legal entity -in French legal system. By passing Civil Procedure Code of 1379 and because of its changes and modifications ...
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By passing Article 729 of Civil Procedure Code of 1318, term of “Civil Penalty” was entered in Iranian legal system which of course it is an adaptation from "Astrant" –a legal entity -in French legal system. By passing Civil Procedure Code of 1379 and because of its changes and modifications that was without an article like Ex 729, some believed in Legally abrogation of such a legal entity from the Iranian legal system while the others think according to the note of Article 47 of the Law on Enforcement of Judgments, this entity still exists in our law. Notwithstanding about mentioned dispute, recently the legislature in some rules such as Note 1 to the repeated article 10 of The Rule of Ownership of Apartments and article 21 of The Rule of Execution of Financial Sentences has set kind of fine that is similar to “civil penalty”. Thus, here we intend generally to study Islamic and Iranian legal systems to determine; whether the entity of “civil penalty” is against Sharia law or not and what it is its nature? Or could we identify it as a general theory? Method which used in this research, was a descriptive-analytical typical (by using libraries facilities, to investigate the answer of these questions) and outcome shows: “civil penalty” is compatible with sharia and sort of punishment that we call it “Taazirat” and we could identify it as a general theory and by the way it is similar to “punitive damages” in English law and also more functional than that entity. So if we pass it as a rule in our legislation, it can help lots of issues of civil law.
Private Law
Amirhosseyn Alizadeh; Mohammadbaqer Parsapoor
Abstract
The process of acquisition of land in English and Iranian law takes place under a specific procedure that may be questioned for validity. One type of the examining of objection is judicial review, which is high supervisory, will be applied in such manner that all actions will be in accordance with the ...
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The process of acquisition of land in English and Iranian law takes place under a specific procedure that may be questioned for validity. One type of the examining of objection is judicial review, which is high supervisory, will be applied in such manner that all actions will be in accordance with the elements that are necessary for acquisition. The source of the judicial review is different between English jurisprudence, so three views have been put forward on the subject that compilation of ultra vires doctrine with common law, has excelled. But in Iran, despite judicial precedent effort, the law-based view remains dominant. The English judicial precedent has also taken appropriate steps in the development of this theory in the law of acquisition of land and has outlined various ways in motives of judicial review; substantive ultra vires and procedural ultra vires, infringement human rights, legitimate expectation, natural justice, proportionality, unreasonableness. However, the English judicial precedent has made some exceptions as general policies of the country. The major of decisions in judicial review in acquisition of land, are in the form of quash. However, there are some cases in the English judicial precedent that have been cited another decision.
Private Law
Alireza mohmmadzadeh
Abstract
The Law on Translation and Reproduction of Books, Magazines, and Audio Works, passed in 1973, is one of the rare laws that has not yet been discussed in any paper. Perhaps one of the reasons for this inattention is the ambiguity and ambiguity that each of the articles of the law in turn raises. Undoubtedly, ...
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The Law on Translation and Reproduction of Books, Magazines, and Audio Works, passed in 1973, is one of the rare laws that has not yet been discussed in any paper. Perhaps one of the reasons for this inattention is the ambiguity and ambiguity that each of the articles of the law in turn raises. Undoubtedly, the lack of a coherent intellectual flow of the law by the legislature, the lack of social sensitivity in protecting people with neighboring rights, especially artists-executors, the researchers' disregard for the rule of law, all contribute to this valley. The subject of this article is to ask these questions and answer them first, according to the national and international laws governing copyright and related rights. I hope that in future research, it will be promoted by well thought out and well-liked researchers of intellectual property rights and will be effective in protecting the neighboring rights.
Private Law
Abbas Mirshekari; Nafiseh Maleki; Elham Habibzadeh
Abstract
There is no doubt that mother or father, who is not awarded to have the custody of the child by the court, has visitation right, as Article 29 of the Family Support Act (passed in 1391) and other related acts including Article 1174 of the Civil Code clearly recognize this right for them. However, Article ...
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There is no doubt that mother or father, who is not awarded to have the custody of the child by the court, has visitation right, as Article 29 of the Family Support Act (passed in 1391) and other related acts including Article 1174 of the Civil Code clearly recognize this right for them. However, Article 29 of the mentioned law claims that in addition to parents, relatives are rightful to visit the child. According to the law, visitation right is mentioned in divorcement chapter and therefore this question arises that their visitation right exists only when parents are legally divorced or they also have the right when parents live apart or even when the child is under custody of both parents. To answer this question, this article is pursuing to prove that relatives who are in blood relation with the child (known as relative relatives) do not have absolute and independent visitation right; In fact, their right is conditional upon death or absence of parents, unless emotional attachment and child's interest and prudence exceptionally necessitates visitation to relatives.
Private Law
Hassan Badini; mojtaba baneshi
Abstract
Currently members transplantation is one of the important ways to treat diseases. According to basic beliefs, The body is only a respectable collection of mysterious nature, But with scientific advances, Human comprehended the importance of the body and its members for use in medical research and medical ...
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Currently members transplantation is one of the important ways to treat diseases. According to basic beliefs, The body is only a respectable collection of mysterious nature, But with scientific advances, Human comprehended the importance of the body and its members for use in medical research and medical applications. Hence the identification of the right of possession for man, In order to prevent the body from being wasted, The main motivation of the theorists In the field of studies, it is about the relationship between man and his body. But talk about human ownership on his body , It has always been associated with ethical, religious and cultural challenges. From this point of view, Theories such as” labur Theory”, Has been raised in Western law. Along with the theory body for body,whith aim of solving problems and compensate the lack of labur theory would be render for the first time. according to body for body theory ,Use of the human body, is an essential component of research in the field of health. And this necessity is completely new and the lack of a historical record of the acquisition of man in his body, Cannot ignore such right. Because the basis of human knowledge changes over generation. So there is no infinite logic and what did not need yesterday, Can be needed today.Research methodology: this research in terms of purpose is functional and in terms of type is qualitative and in terms of how to collect is librarian, and is based on on-line sourses.
Private Law
mohsen Borhani; Arash Badkoubeh Hezaveh
Abstract
Causation is one of the most significant topics of law, if not the most important one. This article analyzes the validity of expert opinion in determining establishment of causation and peripheral issues of causation. Iranian courts routinely delegate the recognition of causation establishment to governmental ...
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Causation is one of the most significant topics of law, if not the most important one. This article analyzes the validity of expert opinion in determining establishment of causation and peripheral issues of causation. Iranian courts routinely delegate the recognition of causation establishment to governmental experts, regardless of whether there is any legal basis justifying such reference. This article answers the following inquiry: “According to Iranian law, in what cases, if any, courts can rely on expert opinion in determining whether Causation is established for purpose of imposing liability?” This article assumes that a criterion should be implemented/designed to recognize establishment of causation based on a customary standard. Although in certain cases, establishment of causation and in some peripheral issues related to the causation, namely recognition of material causes and amount of damages (in the cases of shared liability), expert opinion could be the sole basis for determinate establishment of causation.
Private Law
Mahdi Hasanzadeh
Abstract
According to codes of procedure (articles 348 and 371 Civil Procedure Code and article 477 Criminal Procedure Code) "Contrary to Islamic Jurisprudence" has been announced as the cause of quash of judgments. It is an important point and should be studied if this cause is applicable to all judgments or ...
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According to codes of procedure (articles 348 and 371 Civil Procedure Code and article 477 Criminal Procedure Code) "Contrary to Islamic Jurisprudence" has been announced as the cause of quash of judgments. It is an important point and should be studied if this cause is applicable to all judgments or just judgments which rendered by virtue of religious sources and injunctions and according to principal 167 Constitutional law and article 3 Civil Procedure Code. Applying this cause in the manner that causes quash of judgments which rendered according to laws, it bring about the violation of the laws and this result is not coordinated with constitution law and legal system and arises the shaking of laws and disorder of legal system. Then, for solving this fundamental problem, we are obliged to know this cause as dissuaded from cases which its applying causes the quash of judgments which rendered according to laws.
Private Law
Abdollah Khodabakhshi
Abstract
There is a time allowed for appealing against the arbitrator award (20 days or two months as the case maybe). If this deadline did not respect, the court would issue an order rejecting the petitioner that as specified (As stated) in Article 492 Code of Civil Procedure is certain. Therefore, there is ...
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There is a time allowed for appealing against the arbitrator award (20 days or two months as the case maybe). If this deadline did not respect, the court would issue an order rejecting the petitioner that as specified (As stated) in Article 492 Code of Civil Procedure is certain. Therefore, there is no way for the plaintiffs to challenge the court order! This result, in some cases, is clearly unfair and causes the loss of rights. Thus, a path should be opened for its logical interpretation. As regard that sometimes are seen some obvious mistakes in Arbitrator’s award and Sometimes the first courts make a mistake in calculation of term and deadline of the protest and also in the other words There should be a way to control the decisions of arbitrator, and the court, and the current state of Article 492 of the mentioned law certainly has irrational and unjust consequences. Attentively, the principles of arbitration and the rules related to legal deadlines, consequently the present article tries to show the main purpose of the legislature and the scope of the mentioned article with a view to judicial decisions. It should be said that despite the appearance of this article, its application is not referable.
Private Law
saeed safian; mohammad mahdi meghdadi
Abstract
Bring an action is with the petitioner, therefore determining the title of action is dependent on the decision of plaintiff. The legislator has not, except in exceptional cases, chosen the mandatory titles for civil actions and has assigned the choice of title of action to the plaintiff due to the unlimited ...
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Bring an action is with the petitioner, therefore determining the title of action is dependent on the decision of plaintiff. The legislator has not, except in exceptional cases, chosen the mandatory titles for civil actions and has assigned the choice of title of action to the plaintiff due to the unlimited examples of civil actions and because of the base and nature of action. Therefore, the prosecutors are required to recognize the decision of the plaintiff to name their action. However, the title of the plaintiff is different from the one that is common for action or the legislator has used. In fact, the principle is on the authority of plaintiff to determine the title of a civil action unless the legislator itself specifies the elements and the title of the action, in which case the elective title of the legislator is mandatory. The principle of mastery of parties on the thematic directions of action and the principle of hearing action confirms the authority of plaintiff in determining civil action. In this article, the existence of this principle in the civil proceedings is investigated and confirmed.
Private Law
sajad askari
Abstract
The present paper seeks to examine the concept of currency in the Iranian legal system and to explain its conceptual relation to what is today known as cryptocurrency or virtual currency. Understanding this conceptual ratio will be important because if the concept of currency is to be applied to cryptocurrencies, ...
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The present paper seeks to examine the concept of currency in the Iranian legal system and to explain its conceptual relation to what is today known as cryptocurrency or virtual currency. Understanding this conceptual ratio will be important because if the concept of currency is to be applied to cryptocurrencies, cryptocurrency transactions will also be subject to legal provisions relating to unauthorized currency transactions, such as prohibition of trading without authorization from the central bank.This paper has analyzed analytically and using library resources that none of the elements of the Iranian legislature's definition of currency include "being money", "being common" and "being foreign". Does not conform to cryptocurrencies. The conceptual relationship of the two is legally a divisive one; Therefore, in the current situation, transfers of what is known as cryptocurrencies will not be subject to currency transfer laws and prohibitions. The freedom of cryptocurrency trading and the prohibition of partial currency trading are undermined by the economic unity of the two.
Private Law
eghbal ali mirzaee
Abstract
Legal principles is one of the sources of law. Legal system need to principles so need rules to direct subjects and behaviors. But role of principle is not limited to filling gaps. Legal principles importance in interpretation of laws, specially conflict Laws. In common view, the Function of principles, ...
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Legal principles is one of the sources of law. Legal system need to principles so need rules to direct subjects and behaviors. But role of principle is not limited to filling gaps. Legal principles importance in interpretation of laws, specially conflict Laws. In common view, the Function of principles, is Unknown. So, lawyers only talk about rules of Reconciling laws: new law Abrogate prior law between two conflicting laws. Also, General Law usually derogate special one. Albeit, preferring a special law against general one has not presume rule; altogether general law might be closer to legal principles. So only by reasoning in any case we can say one Special law derogate general law tacitly or anterior law abrogate Posterior law. Because these rules of reconciling between conflicts laws, such as other rules of interpretation, aren’t decisive. Perhaps Ancient Law be concordant whit reasonable Factors so better than new one. Especially in respect of tow conflict section of one statute we cannot say Legislator has repealed one of them by another one. So the significant of legal principles clear to everyone. Only by reasoning in any case we can say one Special law derogate general law or general law abrogate Special one impliedly. Because these rules of Reconciling between conflicts laws, such as other rules of interpretation, aren’t decisive.so they may be justified by legal reasoning and legal principles.
Private Law
Siamak Rahpeyk; Mahdi Hadi
Abstract
According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last ...
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According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last will of the legislator on insanity. In total there are three criteria for insanity: Cognitive and Volition Criterion, customary criterion and companion and Contradiction Criterion. In the cognitive criteria, the main emphasis is on the the nature of the action. Volition criterion relying on individual control over their behavior. In the customary standard, since insanity is a customary concept, it is referred to the custom to diagnosis it. The psychiatric criterion can be analyzed in the context of a specific custom. In the companion criterion, the main emphasis is in relationship with insane person. At paradoxical level, attention is paid to behaviors that are not matched with mental health. The most appropriate solution for detecting insanity is attention to perception and failure of perception based on symptoms such as delusions and hallucinations.
Private Law
bahram taghipour; Narjes Salehi
Abstract
In the capital market, there is a range of transactions between the issuer and the investor or between the securities buyer's and seller's brokers. These transactions, like other kinds of transactions in the non-regulated markets, require efficient rules and sanctions. Some of the sanctions are individually ...
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In the capital market, there is a range of transactions between the issuer and the investor or between the securities buyer's and seller's brokers. These transactions, like other kinds of transactions in the non-regulated markets, require efficient rules and sanctions. Some of the sanctions are individually restricted to the capital market transactions and have been enacted by the Securities Exchange Organization and Securities and Exchange High Counsel. Some other sanctions can be drawn out of the general rules governing contracts. It is expected that the right of retention, as a general rule governing contracts, is applicable in capital market transactions, as well. However, given the specific rules governing the securities market and the necessity of using brokers' services in this market, there are some scepticisms on the right of retention in securities transactions. This study, in a descriptive-analytic way, shows that despite the fact that the right of retention is the general rule of contracts, there are serious scepticisms regarding its application in securities transactions because of the unique nature of these transactions and the fact that these transactions are realized through brokers and central depository company. This is sometimes for the purpose of protecting investors in the context of capital market regulations but in some situations can violate both investors' and brokers' rights. Therefore, it is necessary to set up the Delivery vs. Payment (DVP) system to cover the gaps.
