Private Law
Amirhosseyn Alizadeh; Mohammadbagher Parsapour
Abstract
In order to implement public projects which are carried out by the executive systems, apart from the ownership, the owners of the property in these projects' realm may be affected by the implementation of public projects. The question is whether the executive system can be held liable for such damages? ...
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In order to implement public projects which are carried out by the executive systems, apart from the ownership, the owners of the property in these projects' realm may be affected by the implementation of public projects. The question is whether the executive system can be held liable for such damages? This is one of the most important issues in many countries, which has sometimes been overlooked. In the present article, this issue has been studied in an analytical and comparative manner in the Iranian judicial procedure. In general, British law's spoken about three types of damages: damages resulting from the ownership of a part of the property; damages resulting from the type of work and exploitation of the project and damages resulting from the deprivation (disturbance) of rights. Determining the compensation in the first case is done on the base of three rules of concurrent value or value reduction and the rule of before and after, and in the second case is based on the method of payment of damages in the scope of civil liability and in the third case, is based on the evaluation of relocation costs or completion of business activities. Iranian law and judicial precedent have no corresponding rules regarding the damages of the first and second types, and the judicial procedure does not provide a clear criterion for damages of the third type. In some cases, determining the compensation is subject to the agreement of the parties or to the extent of definite damages. However, it seems that in Iranian law, based on accepted rules and principles, it's possible to provide acceptable justification for the application of rules in British law.
Private Law
Ali Asgaritavani; Hasan Mohseni; mohammad ali mahdavi sabet; Mansoor Amini
Abstract
The enactment of the Code of Criminal Procedure in 2014, following the 1999 law that considered general courts, raised the question of what the consequences would be for the separation of legal and criminal authorities. One of these effects is the influence of the legal authority from the criminal due ...
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The enactment of the Code of Criminal Procedure in 2014, following the 1999 law that considered general courts, raised the question of what the consequences would be for the separation of legal and criminal authorities. One of these effects is the influence of the legal authority from the criminal due to the compliance of the legal authority with the criminal verdict. However, the question is "to what extent" and "in which condition"? In Article 18 of the Code of Criminal Procedure, the legislature only mentions the phrase "effective" criminal verdict on a law. While the phrase is not clear and should be analyzed by studying the elements of the criminal verdict. In this article, by mentioning the principles, characteristics, conditions and effects of the rule of validity of the final criminal case in civil law in the legal system of Iran and France, we explain the superiority of criminal law over civil law by mentioning the votes. Finally, we make the exception of the fact that the third party is the victim of the criminal verdict and the buyer of the property in the transaction intends to flee from the debt. The research method is based on a descriptive-analytical and applied method (judicial procedure). The main result is to prove the existence of the right of the third party affected by this rule.
Private Law
Seyed Saeed Hashemi
Abstract
At the initiative of the Hague Conference on Private International Law, the Convention Abolishing the Need to Certify Official Documents of Foreign Government Documents was adopted in 1961. In 2012, the Islamic Republic of Iran approved the Act of "the Accession of the Government of the Islamic Republic ...
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At the initiative of the Hague Conference on Private International Law, the Convention Abolishing the Need to Certify Official Documents of Foreign Government Documents was adopted in 1961. In 2012, the Islamic Republic of Iran approved the Act of "the Accession of the Government of the Islamic Republic of Iran to the Apostille Convention". However, the instruments of the accession to this convention have not yet been deposited to the Ministry of Foreign Affairs of the Netherlands. So after several years, Iran is not considered a member of this convention. The main purpose of this convention is to facilitate the certification of documents as well as to facilitate the use of internal documents in other member states of the convention. By acceding to this convention, the consular representations that mediate the certification of documents are eliminated. This research uses a descriptive-analytical method to examine different parts of this convention and in each part analyzes the view of Iranian law based on the executive regulations of the Act of accession to the Convention and explains the appropriate solution in this regard. In the final part of the research, the consequences of accession to this convention are explained. With the passage of this Act, some domestic acts of Iran in reciprocal relations with the member states of this treaty have been implicitly abrogated, including the fourth paragraph of Article 1295 and Article 1296 of the Civil Code, as well as paragraph A of Article 2 of the Act of the Translation of statements and documents in courts and official offices. Accession to the convention also facilitates the attraction of foreign investment and reduces the outflow of foreign currency for certification. Therefore, Iran's accession to this convention is a positive step for the national interest and it is recommended to take other executive steps to join this treaty.
Private Law
Hassan Badini; behnam shekoohi
Abstract
Labour contract has a crucial role in the formation of Labour relationship, and also prove it. This contract can differentiate the given tie form other concepts and similar institutions in the Civil Code. In relation to current regulations, including labour Code, Correcting law of impediment to manufacture ...
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Labour contract has a crucial role in the formation of Labour relationship, and also prove it. This contract can differentiate the given tie form other concepts and similar institutions in the Civil Code. In relation to current regulations, including labour Code, Correcting law of impediment to manufacture and industrial investment approved in the 2008, and Correcting law of impediment to competitive manufacture and improvement in the financial system with regard to the role of above-mentioned contract in the 2015, procedural and formality of its standards are in doubt. This article has gone over the various standpoints which is related to this issue in a descriptive-analytic and comparative way. Given the outcome, we make out that the formulation of indenture has been just influential in the proof step. Judicial precedent and the lack of anticipation of related sanctions leads to reinforcement of the latter statement. However, the evidence, that proves the litigations of Labour relationship is anticipated in the By-law of Labour Procedure approved 2012, There is no references of testimony and oath as a reason of specific significance. In French Law, there is no conclusive evidence, therefore, according to Civil Law, all the evidence is acceptable; as regard the Case-Law and the protective nature of the Labour Code towards labourer, it is accepted in our Law.
Private Law
Eisa Rajabi; shahrzad ounegh
Abstract
The document of “General Conditions of Contract” is one of the provisions that govern the governmental contracting contracts and cannot be infringed. Among the issues to be considered in this document are the provisions of Article 53, with the title of "Dispute Resolution”. This article, ...
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The document of “General Conditions of Contract” is one of the provisions that govern the governmental contracting contracts and cannot be infringed. Among the issues to be considered in this document are the provisions of Article 53, with the title of "Dispute Resolution”. This article, because of the use of the words "he can" and "they can" in paragraphs (a) and (c), and with the prediction of quasi -arbitration and arbitration in the form of a contract term, and also as a consequence of the "Optional or compulsory will” of the parties to lawsuit to the non-judicial authorities, has led to various interpretations of the designation of the competent authority to deal with disputes arising out of this kind of contracts. The absence of a uniform judicial procedure in these cases has caused to wasting time and financial costs on litigants (employer and contractor) and the judiciary. Therefore, in the present article, we will try to rely on the method of reasoning and principles and legal rules governing the subject in one of the preliminary Court votes, while examining the structure and analysis of the scientific approach of the judge's thought, including the legal concept and nature of this kind of contracts and method of Non-Judicial Dispute Settlements, as well as the Status of Non-Judicial Dispute Resolution Authorities in the Contractual Condition, to determine the extent to which litigants have the possibility in choice of the jurisdictional or non-judicial proceeding, and as far as possible provide a functional and unified approach to deal with such disputes
Private Law
sajjad shahbaz ghahfarrokhi
Abstract
After adopting the theory of contributory negligence and dismissing the All-or-Nothing Rule, the issue of how to determine the extent of loss and victim fault was raised in fault-based civil liability. The key question is whether there is a difference between the defendant's fault and the plaintiff's. ...
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After adopting the theory of contributory negligence and dismissing the All-or-Nothing Rule, the issue of how to determine the extent of loss and victim fault was raised in fault-based civil liability. The key question is whether there is a difference between the defendant's fault and the plaintiff's. If the same act has been done by both sides and the other essential elements are the same, should the responsibility be equally shared by the two perpetrators, regardless of whether they are plaintiff or defendant? The European principles of civic responsibility and the prevailing theory of common law have adopted a "symmetrical approach to victim and defendant's behavior in determining each one's fault" and equally, have considered the standard of reasonable care in evaluating their behavior. This view has been tempered in various ways and certain exceptions have been made to it in the Common law legal system. Similarly, from the point of view of economic analysis and moral criticism, there are some objections to this theory. This view, despite its popularity, seems to have left much criticism unanswered. In depicting an apt theory to address this issue, it will count as a step forward to explain and criticize the mainstream theory.
Private Law
Ali Seyedin; Mahdi Karchani
Abstract
Generic trademarks are not entitled to exclusive rights, since due to lack of distinctiveness they deprive competitors of necessary words required to introduce goods and services, and eventually, they create confusion for consumers. For some reasons, a trademark may become the generic name for the category ...
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Generic trademarks are not entitled to exclusive rights, since due to lack of distinctiveness they deprive competitors of necessary words required to introduce goods and services, and eventually, they create confusion for consumers. For some reasons, a trademark may become the generic name for the category of services and goods to which it belongs; In this case, the death of a trademark which is called Genericide will occur. Semantic gap as a result of the non-existence of product or class name along with the novelty of trademark, death by patent, shorter length and simplicity compare to the product name and also market dominance as well as fame are among the prominent linguistic and social processes of trademark genericization. In order to confront the unjustified monopoly of generic trademarks, pre-registration, and post-registration, legislators can provide a couple of mechanisms that the most important are: refusal ground for registration, invalidation trial, cancellation, or removal of the registry, and limitation of exclusive rights. However, three questions shall remain to be answered, case by case, in judicial proceedings: First, what is the genus of goods and services with respect to the key aspect of the product? Second, how and from which point of view and perception of which group shall trademark be deemed generic (end users, intermediaries or, manufacturers)? Third, considering the evidence particularly surveys, linguistic tools, search engines, and testimony of members of trade-in relevant sector, what is the perception of relevant public regarding primary significance of trademark? The goal of this article is to review genericization processes, conducting a comparative study of anti-generic mechanisms of trademark law, and elaborating procedure of determining the genericness of trademark in judicial proceedings in light of US, EU, and Iran courts judgments. Finally, as needed, providing suggestions to overcome legislation shortcomings and gaps as well as optimizing proceedings regarding generic trademark.
Private Law
mohsen esmaeili
Abstract
One of the types of Ownerships’ Trusts is loan that is the result of a contract and agreement between the parties (owner and trustee). According to Iranian Civil Code Articles there are twelve examples of this type of Trusts in the form of nominated contracts that explicitly or implicitly have ...
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One of the types of Ownerships’ Trusts is loan that is the result of a contract and agreement between the parties (owner and trustee). According to Iranian Civil Code Articles there are twelve examples of this type of Trusts in the form of nominated contracts that explicitly or implicitly have been measured as trust contract. This article is intended to answer this critical question that: “Do these twelve examples have a Limitative aspect and as a result, It cannot be added to the number of Nameless Contracts or they are merely examples of Nominated Trust Contracts and don’t prevent the formation of Trust Contract based on article 10 of the Civil Code? This disagreement over the scope of transactions or the freedom of will in creating new form of transactions, is not a new discussion. But the origin of this question, is the different interpretation of Article 631 made by lawyers. Some of them support the theory of the limitative contract of trust and others disagree with it. The third theory, which is presented in this article, is “Implies non-limitative”, an idea stronger than “Not implying to limitative”. The practical result of this answer, is the validity of new types of Nameless Contracts Which have become so common nowadays and the parties wish to arrange the effects of the trust on them.
Private Law
Parviz Bagheri
Abstract
“Green court” is a new procedure mechanism on the ground of less paper usage that has a significant role in investigating the cases of the courts. In other words, electronic procedure, by the use of Information and Communication Technology (ICT), and with the aim of availability and exchange ...
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“Green court” is a new procedure mechanism on the ground of less paper usage that has a significant role in investigating the cases of the courts. In other words, electronic procedure, by the use of Information and Communication Technology (ICT), and with the aim of availability and exchange of information is a mechanism that arranges between the courts and beneficiary parties in the cases of the courts. This mechanism can promote the job satisfactory of judges, staff and parties. Mechanisms such as VCS, QMS, CMC and CAP are among the ways used by the legal system of many countries such as Malaysia, while the Iranian legal system has been partly failed to utilize such mechanisms. The present research through critical analysis method, tries to compare the two Iranian and Malaysian legal systems in using the e-court and legally scrutinizes the existed and future challenges of the green court application and gives some commentaries and suggestions.
Private Law
saeed habiba; zahra shooshtari
Abstract
Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” ...
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Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” are used as the ways to escape from being defeated. Given the ambiguity of the concepts of public order and arbitrability, especially in intellectual property law, and the differing views of other countries on these issues, we sought to examine what is the relationship between the concept of public order and arbitrability in the intellectual property disputes referred to arbitration. The result was that there was a split. Some have supported the theory of conformity of public order and inarbitrability. In contrast, other writers have arguments about the fundamental difference between the two.
International Law
Majid Ghamami; Aliasghar Saneian
Abstract
If an agreement of the choice of court or choice of forum clause in international private law has legal effect, it may grant exclusive jurisdiction to the chosen court, and disqualified from the courts of other countries, unless agreed to be the chosen court is non-exclusive. Judgment of chosen court ...
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If an agreement of the choice of court or choice of forum clause in international private law has legal effect, it may grant exclusive jurisdiction to the chosen court, and disqualified from the courts of other countries, unless agreed to be the chosen court is non-exclusive. Judgment of chosen court in another country shall be recognized or enforced if such agreement is valid under the law of the court of foreign judgment. The method of this article is analytical-descriptive and its result shows that such an agreement is generally neither contrary to public judicial policy nor contrary to the rules of internal civil procedure in determining the jurisdiction of courts, unless the agreement is not valid in terms of law (unlawful), such as the choice of court agreement is the case in the exclusive jurisdiction of another courts of country. Also, if this agreement has been concluded fraudulently or unfairly or by fraud, then it is not valid. Plus, if the chosen court of the two parties is not related to the elements of the dispute, the court can, due to the lack of a reasonable and legitimate interest and to avoid imposing court costs on its respective country, consider such jurisdiction invalid and refuse to hear the case; But if the judgment is issued, recognition and enforcement of it in abroad, depends on the court's opinion of the legitimacy of this type of agreement.
Private Law
Abbas Mirshekari
Abstract
The individualization of criminal writ petitions in the international arena, such the use of celebrities’ identities in commercial advertising has increased nowadays. Legal systems have also tried to protect the rights of these individuals from being used without their permission. For example, ...
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The individualization of criminal writ petitions in the international arena, such the use of celebrities’ identities in commercial advertising has increased nowadays. Legal systems have also tried to protect the rights of these individuals from being used without their permission. For example, according to the United States of America’s law, right of pre-emption is recognized. Publicity Right means that exploitation of another personality with his permission. Although the scope of this right includes both celebrities and ordinary people, but it is claimed mainly by famous people to fence their interests. Although there is no doubt about this right but there are disagreements over its realm: “Can an exception be made for this right or, any possible use of another personality is subject to the permission of the person?” In American law, full implementation of this right is known as a violation of freedom of expression. For this reason, this right has been modified and, in particular, its boundaries have been defined by freedom of expression. The most important challenge in this direction is determining the criteria for distinguishing the realm of the right. Various criteria are presented for this purpose. The most important criterion is the theory of fair use. Accordingly, if a person changes the identity of a celebrity and transform it into another form or, if the intention of the individual is to disseminate information about a famous person, his action will be justified. In fact, in these two cases, the right of publicity will be sacrificed at the expense of more important value: freedom of speech. In this article, we are trying to provide suggestions for the Iranian legal system by studying the USA legal system.
Private Law
mohamadreza bagheri; Jafar Jamali; mahmud khdeman
Abstract
Law and justice are closely linked, and decisions that do not conform to justice Following the currency crises of 1993, 2002, 2012 and the recent foreign exchange crisis and the non-fulfillment of currency obligations in due time, the claim for a delay in payment of foreign currency, is one of the most ...
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Law and justice are closely linked, and decisions that do not conform to justice Following the currency crises of 1993, 2002, 2012 and the recent foreign exchange crisis and the non-fulfillment of currency obligations in due time, the claim for a delay in payment of foreign currency, is one of the most complex and prevalent claims nowadays. The judicial precedent in this regard is not much clear. The origin of the dispute, results from the nature of the currency obligations and its non-prevalence essence. One stated comment (as the dominant view) suggests that the common currency mentioned in Article 522 of the Iranian Civil Procedure Code for Public and Civil Revolutionary Courts is limited and dedicated to the domestic currency money and does not include any foreign exchanges. The other opinion would suggest that this lawsuit is after all actionable. The same dispute exists in respect with the private agreement on determining the delay damage of payment obligations (including currency and Rial). By understanding the undeniable role of currency in the economic activities and the need to support foreign investment, it is essential to legally examine and review this claim and its reasons and justifications. It seems that the Article 522 of the mentioned law, which is cited by the courts, seeks to govern the power of the money and doesn’t include the determination of the contractual monetary obligation and the delay damage in payment in its strict sense. Therefor in the light of legal citations and documents which approve the claim of delay damages of payment and its basic philosophy, it is possible to hear these claims and decide upon it.
Private Law
Behnam Habibi
Abstract
Based on the principles of judicial democracy, the principle of access to the judiciary has come to the forefront of the new concepts in civil justice law. On the basis of openness of the proceedings, the specialization of the judicial system and the development of various forms of dispute resolution ...
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Based on the principles of judicial democracy, the principle of access to the judiciary has come to the forefront of the new concepts in civil justice law. On the basis of openness of the proceedings, the specialization of the judicial system and the development of various forms of dispute resolution with the necessity of qualitative access to the judiciary, all make it possible to reach the efficiency of the judicial system. Meanwhile the need for quantitative access to the judiciary on the basis of judicial review and compliance with the principle of proportionality approach will lead to a standard judiciary system. The principle of access to justice has three fundamental indicators. The principle of easy access, which includes access to the rules of procedure and objective access to the judicial system. The principle of quick access, which relies on digital economy and information and communication technology, is driven by electronic justice. The principle of cheap access also seeks to balance the cost of litigation in the macro perspective. There are three criteria and sub-indicators in this principle which include the system of judicial assistance, both public and private, the law enforcement agency and the litigation insurance system. In the present paper, with a focus on the economics of justice and in a comparative approach, while recognizing the concept of the principle of cheap access to the Judiciary, from two legal and economic perspectives during scientific discussions, the following three sub-indicators will be discussed.
Private Law
Mahdi Hassanzadeh; Badie fathi
Abstract
The rules of jurisdiction are regulated based on primary and secondary provisions. In primary rules of jurisdiction, the general framework for determining competence criteria is presented but the application of these regulations alone cannot meet the purpose pursued by the rules of jurisdiction. Therefore, ...
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The rules of jurisdiction are regulated based on primary and secondary provisions. In primary rules of jurisdiction, the general framework for determining competence criteria is presented but the application of these regulations alone cannot meet the purpose pursued by the rules of jurisdiction. Therefore, by virtue of the application of these regulations, effective and appropriate competence will not be obtained; for this reason, secondary rules of jurisdiction play a critical role. Connectivity of claims is one of the secondary regulations of jurisdiction which will be affected by the relative jurisdiction and eventually lead to the development of the jurisdiction of the Supreme Court. In the French civil procedure, the relative jurisdiction of development is different from that of Iran. The focus of this research is that “What are the effects of connectivity of claims on relative jurisdiction in civil procedure of both Iran and France?”, “What are the exclusions of the primary jurisdiction rules”?
Private Law
mina kavyani; nejadali almasi
Abstract
Publishing literatures and artworks under copyright protection in the internet and the possibility of widespread infringement of these rights by millions of internet users all over the world, raises this important question that “Which law would be applicable in conflict of two or more laws?” ...
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Publishing literatures and artworks under copyright protection in the internet and the possibility of widespread infringement of these rights by millions of internet users all over the world, raises this important question that “Which law would be applicable in conflict of two or more laws?” In addition, “In determination of governing law in copyright infringement in cyberspace, are traditional conflict of laws rules still applicable or new rules are needed in this area”? This article studies the issue by the separation of two assumptions of agreement and disagreement on applicable law in contractual and non-contractual infringement of copyright in cyberspace. In contractual infringement, which has the agreement on the governing law, the procedure of most of the countries and international conventions is, acceptance of principle of will. In contractual infringement in absence of agreement on governing law, different criteria have been adopted which the most important one of them is applying the law of the country which has the closest relation with the contract. In non-contractual infringement which has been agreed on governing law, there are two general viewpoints between lawyers, countries and international regulations. Some don’t accept the principle of will because of the connection of torts with public discipline and others recognize rule of will in determination of the governing law before and after the loss. Finally in assumption of disagreement in non-contractual infringement, which is the most common kind of infringement of these right in cyberspace, among different theories (including Lex Fori, Lex Loci Delicti, Lex Loci Protectionis) the theory of the law of the closest country, has been suggested as the most appropriate solution in order to determine the governing law.
Private Law
azim kochaki pahne kolahi; seyed Hekmatallah Askari; Mohammad Hussein ansari haghighi
Abstract
Excessive legislative recourse to harsh punishments, including long prison terms and executions, is clearly seen in law. In order to find social and legal needs, mankind usually achieve their goals with the help of legal actions. In terms of the diversity of these needs, a variety of legal practices ...
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Excessive legislative recourse to harsh punishments, including long prison terms and executions, is clearly seen in law. In order to find social and legal needs, mankind usually achieve their goals with the help of legal actions. In terms of the diversity of these needs, a variety of legal practices have emerged. One of the characteristics of this diversity is the suspension of legal acts. Meanwhile “Intention” holds an important role in Law and legal actions are interpreted by intention. Our will is the only creator of legal acts. Therefore, there is no other way to understand the suspension of the will than to analyze its nature. Current views have sought the position of the suspension of the will in the creation and origin. New and different theories are presented that have taken steps to critique past theories. It is clear that in this way, the suitable analysis to be accepted is the one that is applicable in all aspects and types of legal actions and is more compatible with practical practice and the real will of the creator. In this study, the suspension will be examined with this view. For this purpose, the originality of jurisprudence and its rules must be emphasized. So, one should not turn to unrelated approaches of other sciences that are not compatible with the subjects of jurisprudence in order to understand the nature of law. From this perspective, special attention is paid to recognizing the nature of the obligation arising from the expression of the will, as a method of correctly understanding the nature of the suspension.
Private Law
Rasul Mazaheri Kuhanestani; Shabnam Naseri
Abstract
Nowadays, the concept of intellectual property rights has found striking importance in commercial interactions and plays an important role in countries’ economic development. New contractual frameworks for transactions have been developed for these assets whereof the “agreement of patent ...
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Nowadays, the concept of intellectual property rights has found striking importance in commercial interactions and plays an important role in countries’ economic development. New contractual frameworks for transactions have been developed for these assets whereof the “agreement of patent assignment” is a shining example. Since the nature of patent is an independent category of rights with its own effects and characteristics, patent assignment agreement in the same way, are not to be justified by any previous type of agreement. Permanent and unconditional property transferring is its main distinguishing feature with other emerging agreement forms in technology fields. Based on this, the contract of patent assignment should be regarded as an undefined and independent agreement which lays into the domain of article 10 of the Iranian civil code which as well as general conditions (mentioned in article 190 of this code), contains specific regulations and conditions. This specific essence makes particular obligations for both parties and presents specific issues in dissolving such contract which requires comprehensive legal analysis. This article is meant to analyze and clarify all aspects of such agreement
Private Law
Mansour Akbari Araei; reza nikkhah; siamak jafarzadeh
Abstract
One way of mental damage compensation is apology. Apology plays an important role in healing mental and emotional pain of victims and has a detrimental effect on their relationship with the wrongdoer. This has been the subject of legislative attention in the Iranian law and in case of mental damage article ...
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One way of mental damage compensation is apology. Apology plays an important role in healing mental and emotional pain of victims and has a detrimental effect on their relationship with the wrongdoer. This has been the subject of legislative attention in the Iranian law and in case of mental damage article 10 of the Civil Liability Act gives the court the authority to force the wrongdoer to apologize for the loss. However, apology has not yet been defined and its terms has not considered in the country’s laws. Other countries such as Canada and the US are the leading countries in this case and have used the apology as a tool to relieve mental pains. A lot of research has been done for defining and explaining the term “apology” till now. In this research we’ll study the notion and terms of apology and its role in mental damage compensation of the victim and its effects on wrongdoer behavior and also the process of apology in the court. In conclusion, on one hand, the Iranian legislator must define the apology and on the other hand, the role of judicial procedure must be emphasized so that apology will become one of the methods of spiritual compensation if necessary.
Private Law
Dr. Seyyed Mostafa mohaghegh damad; khashayar esfandiari far
Abstract
Law and justice are closely linked, and decisions that do not conform to justice and fairness are not willingly executed, leading to resorting to all kinds of deceit to escape from it. The link between law and justice can be observed in many judicial decisions, and one of the manifestations of justice ...
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Law and justice are closely linked, and decisions that do not conform to justice and fairness are not willingly executed, leading to resorting to all kinds of deceit to escape from it. The link between law and justice can be observed in many judicial decisions, and one of the manifestations of justice in judicial decisions is the lawsuit for damages by the plaintiff. Nowadays, in various contracts, especially commercial ones, the pledgee tries to put pressure on the pledger and to ensure that he she fulfills the pledge, sums of money are assigned to the pledge agreement as a consideration. In some cases, the pledgee, for various reasons, such as economic fluctuations or negligence and shortcomings, refuses to perform the contractual obligations (in part or in full), resulting in encountering an enormous amount of contractual loss, which sometimes exceeds the contract value. In this type of litigation, the role of judges and, in fact, the judgments are very strong and some courts consider the "principle of interpretation in the light of the whole contract", "the administration of justice and fairness as a rule" and "the illegality of the condition", deviating from Article 230 of the Civil Code and order payment of the obligation by modifying its amount or removing the above-mentioned condition and holding it in accordance with justice. In the present paper, several instances of judicial opinions are mentioned in this regard and their arguments are analyzed.
Private Law
Ebrahim Rahbari; Hassan Lajmorak
Abstract
Sport publicity or image right is a right by which athlete finds exclusive right in exploiting his publicity, image, personality and identity and can grant others the permission to use them and on the other hand, prevent the unauthorized use of this right by others. Having regarded the approaches of ...
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Sport publicity or image right is a right by which athlete finds exclusive right in exploiting his publicity, image, personality and identity and can grant others the permission to use them and on the other hand, prevent the unauthorized use of this right by others. Having regarded the approaches of leading legal systems in such field, this article analyses the process of formation and recognition of this right for athletes and examines the reasons for its existence and its justifications and solutions against who infringe this legal right. In some legal systems, image right has been recognized as an independent right and commercial value attached to the identity of athletes, regarding some exceptions, is legally under protection. Registration of images as trademarks, exploiting the potentials of passing off actions and trade secrets system as well as dilutions actions, help athletes supporting their rights in such field. Although In Iranian law the existence of some obscure regulations beside some general rules such as the necessity of protection the rights relating to the personality and civil responsibilities may solve some problems but the results of this paper indicate the ambiguity and in efficiency of Iranian's existing regulations and legal literature regarding the effective protection of athletes' rights to their publicity and images, which necessitate employing the established rules in this domain in order to fill the gaps and correct the legal deficiencies.
Private Law
Mohammad Sardoeinasab; Peyman Aghababaee Dehkordi
Abstract
Abstract:The subject of this paper is the analysis of the nature and validity of price adjustment clause by paying the difference at the time of payment of the last installment. The unpredictable changes in commodity prices in the market have led to, in sales in installment, sellers cannot set a part ...
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Abstract:The subject of this paper is the analysis of the nature and validity of price adjustment clause by paying the difference at the time of payment of the last installment. The unpredictable changes in commodity prices in the market have led to, in sales in installment, sellers cannot set a part of price allocated to installment, so they designed the above mechanism. This term concludes that, in the sale of installments, the last installment has been adjusted and the buyer is required to pay rest. In this paper, using a descriptive and analytical method and referring to the main sources, after analyzing the various forms of the above mechanism, it is recognized & this result has been achieved, If understanding of Gharar, and summarizes in assurance, this term will be correct. The judicial procedure also recognizes it's as valid. Keyword: installment sales, condition about performance of an act, corollary term suspended, adjustment, open price, Gharar.
Private Law
seyyed morteza tabatabaei; seyyed mohsen sadat akhavi
Abstract
One of the most important proofs of the lawsuit is the documents. Ordinary document is prestigious and valid, but the validity of all the documents is not the same, and the official documents have a certain positive validity and power. By the Law on the Registration of Documents and Real Estate in 1931 ...
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One of the most important proofs of the lawsuit is the documents. Ordinary document is prestigious and valid, but the validity of all the documents is not the same, and the official documents have a certain positive validity and power. By the Law on the Registration of Documents and Real Estate in 1931 AD the registration of documents for all transactions and transactions concerning the interests and interests of immovable property was compulsory. Following the implementation of this law, and in light of the issuance of different judicial opinions in this regard, in 2017 AD the law of permanent rulings on development plans of the country was passed and in Article 62 of this law was enacted on the validity of regulatory documents. The subject matter of this article is limited to transactions involving immovable property and does not rule out formal ownership. The last part of Article 62, "Except for documents that are based on the recognition of a court having a religious validity ..." as an exception, is a new judgment that is ambiguous and may lead to the elimination of the original function Official documents in the community. In order to address these ambiguities, it is necessary to distinguish between property rights and contract law in the interpretation of Article 62. It can be said that as long as the documents with the rights of the holder of the official document are not in conflict, these documents are valid and in the relationship of the parties to the transaction are correct and the source, but when confronted with the ownership of the owner of the official document can not be the source of ownership transfer, in this case, against the holder The official document is not cited and can not be in conflict with the official document.
Private Law
Amirhossein Alizadeh
Abstract
According to the law on the Implementation of Financial Convictions, approved by the Islamic Consultative Assembly on 15/7/1393 and the Expediency Council on 23/3/1394 imprisonment is one way to achieve financial right, but in addition to the request of plaintiff and adoption of the court, it is necessary ...
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According to the law on the Implementation of Financial Convictions, approved by the Islamic Consultative Assembly on 15/7/1393 and the Expediency Council on 23/3/1394 imprisonment is one way to achieve financial right, but in addition to the request of plaintiff and adoption of the court, it is necessary extra conditions. Authority of the court and plaintiff is not absolute. In addition, it is exceptional and In case of doubt, the general principle rules should be applied.In addition, the term of imprisonment is not specified. Identifying the nature of insolvence requires identifying type of confrontation to wealthy that is confrontation between inexistence and potency.However the definition of the legislator in article 6 and its note, as well as the admission for installment in Article 11, indicates that the legislature does not have same attitude .Moreover this article does not comply with the petition for insolvency or wealthy in Article 7 and the recent article also has conditions for proof of insolvency that is criticized.
Private Law
ahad khakpour; Rabiya Eskini; Mohammadali Bahmaei
Abstract
AbstractNowadays, Arbitration is an effective framework for resolving international commercial disputes. Most of the issues related to the international arbitration process allocate for the status, rights and obligations of disputant parties and the arbitrator. The Arbitration Agreement which is the ...
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AbstractNowadays, Arbitration is an effective framework for resolving international commercial disputes. Most of the issues related to the international arbitration process allocate for the status, rights and obligations of disputant parties and the arbitrator. The Arbitration Agreement which is the legal basis of the arbitral proceedings only creates the legal relationship between disputant parties, therefore it does not deal usually with the legal relationship between the arbitrator and disputant parties that is effective in their mutual rights and obligations. The authority and position of the arbitrator empowers him to agree on his rights and obligations with disputant parties and whenever the expectation of the parties may endanger the arbitration process he will stand against the unreasonable demands of them and will organize their rights and obligations within a legal formal framework. The best framework accepted in some jurisdictions is the establishment of a separate contract known as the “arbitrator's contract”. The contents of this agreement include the most important rights and obligations of disputant parties and arbitrator which affect their position.
