Mohammad Hassan Sadeghi Moghadam; behnam Ghafari Farsani
Abstract
Competition law is conceived as one of the most important factors in the success of free market economic systems. The idea is that if free competition exists among activists at production and distribution of goods and services, economic efficiency and ultimately total welfare will increase. While this ...
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Competition law is conceived as one of the most important factors in the success of free market economic systems. The idea is that if free competition exists among activists at production and distribution of goods and services, economic efficiency and ultimately total welfare will increase. While this new branch of law has long provoked fascinating interdisciplinary discussions among economists and lawyers, the legal system of Iran has recently taken the first step in this field. So it is required that from now that the underlying premises and principles of this area of law are properly discussed and examined to pave the way for deeper future researches. Certainly one of the most important and basic questions about any new regulations which it is of a determinant role in interpreting their provisions, is goals which those regulations seek to achieve. Lawyers and legal systems have no consensus on objectives of competition law. Generally, multiple goals for the said regulations are conceivable that sometimes run at odds with each in execution stage. The following article, relying on Iran legal system is to explain the objectives of competition law. It shows that the “Soul” of competition law is the preservation of competition to promote efficiencies for consumers.
Abolfazl Mohebbi
Abstract
One of the most remarkable intersections of law and economics is monetary and financial issues, and one of the respective matters is monetary obligations and breach of such obligations. The present research under the title of "Economic Analysis of Civil Performances Guarantee for Monetary Obligation ...
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One of the most remarkable intersections of law and economics is monetary and financial issues, and one of the respective matters is monetary obligations and breach of such obligations. The present research under the title of "Economic Analysis of Civil Performances Guarantee for Monetary Obligation Breach" aims to present an overview of money and monetary descriptions and obligations as well as expressing legal reactions to monetary obligations breach (such as nominal value compensation, money value decrease compensation, vindictive damages and delay penalty) upon applying law economics rules, experimental findings and experts practice, and identify the most efficient and optimized reactions and introduce them as the most important objective of economic analysis of law to the judicial and legislative society in order to decrease social costs.
It focuses on this important about the nature of money that tends to be nothing but purchasing power that is fungible at current time and will be non-fungible during the time. At point of view of economic analysis of law, the efficient legal rule respecting to monetary obligation breach is the rule of delay penalty. Finally when the rule of delay penalty is considered as legal rule for monetary obligation breach, legal efficiency will lead economic efficiency through decreasing social costs (exchange cost, risk allocation, opportunity cost for parties in claims, inefficient reliance cost and performing and administrative costs, etc).
Javad Tahmasbi
Abstract
The basis of accepting the passive personality principle is to protect victimized nationals. In the face of special provisions and circumstances, his/her country has jurisdiction. This principle, in Iran law system, had been accepted in limited areas. While several countries have accepted this principle ...
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The basis of accepting the passive personality principle is to protect victimized nationals. In the face of special provisions and circumstances, his/her country has jurisdiction. This principle, in Iran law system, had been accepted in limited areas. While several countries have accepted this principle for a long time and referring to it is expanding in national and international law. This principle is not in conflict with Sharia rules and the Constitution of the Islamic Republic of Iran. Then, according to its legitimacy in international level, this principle has been legislated in Article 8 of Islamic Penal Code of Iran. It can be an effective measure to protect nationals. This study is considering how this principle can protect nationals' interests, the challenge of this principle with other principles and the way it interacts with other countries which have jurisdiction over the case.
Reza Khoshnodi; Reza Alipour; Alireza Shokohian
Abstract
Not only breach of competition law's regulations has negative effect on economic efficiency, but also causes damages to persons. Since, various legal systems want to prevent anti-competitive conducts and compensate the losses that arise from these conducts, by designing various legal mechanisms. But, ...
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Not only breach of competition law's regulations has negative effect on economic efficiency, but also causes damages to persons. Since, various legal systems want to prevent anti-competitive conducts and compensate the losses that arise from these conducts, by designing various legal mechanisms. But, we should keep in mind that primarily, evaluation of theoretical bases of compensable damages is necessary to discuss injured parties' compensation issues. Study about these bases illustrates differences between various legal systems. Moreover, compensation of losses that arise from anti-competitive conducts has multilayer goals. In one hand, that wants to reach short-time aims that most important of them is compensation of injured parties or in other word compensatory aim. To reach this goal, special methods are designed; such as private and class action. On other hand, we can't condone long-time aims. Most important consideration between them is preventing the anti-competitive conducts’ occurrence that can be reached by punitive damages. Summary analysis of theoretical bases of compensable losses and current compensation methods of such losses in different legal systems, will illustrate our legal system's failures.
Mohammad Reza Haddadzadeh Nayyeri
Mohammad Jafar Habibzade; Mohsen Sharifi; Mohammad Isaei tafreshi; Mohammad Farajiha
Abstract
For reasons including inability to impose some punishments,violating the principles of being personal punishments, not realization of punishment goal, specificity principle, constraints on procedures and most importantly, lack of guilt evidences, in negation, as well as arguments ...
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For reasons including inability to impose some punishments,violating the principles of being personal punishments, not realization of punishment goal, specificity principle, constraints on procedures and most importantly, lack of guilt evidences, in negation, as well as arguments such as justice and criminology fact, difficulty of discovering the true culprit, scrutiny of the members and stakeholders in selection of managers, reduction of punishments for freedom hampering or injury of managers and finally compensation for damages inflicted on victims in a favorite manner have been expressed in proving criminal liability of the legal entities. Counterpoint approaches impact on the legal systems was so that until the twentieth century, the legal entities' liability was put in doubt as a principle. But since the second half this century following the legal entities activity scope, especially the companies, and rise of crimes against environment, organized crimes, specifically transnational crimes, crime in the field of transportation and industry in general caused the leading countries as Canada, England, United States,Netherlands and the Europe Council to accept and regulate the criminal liability of the legal entities as a must, despite of criminal law shortcomings, through relying on theories such as vicarious liability, secondary character, employers and superiors' responsibility, collective guilt and criminal liability of the legal persons. Alnahayah the movement for criminal liability of the legal entities, made Iran to join the system; so that inability for in the first step cyber crimes 2009 in particular, and in the second step for the Islamic penal law, in general were accepted. Scrutiny in transformation of the Iranian law in this regard, specifically in the above mentioned bill has been the effort of the present paper.
Mahdi Abdolmaleki
Abstract
For the commercial bill to be able to fulfill the two principles of speed and precision in transactions, it is necessary to have certain characteristics and be transformed from an affirmative proof (like common official papers) to moveable and moral property and be valid independent from basic transactions ...
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For the commercial bill to be able to fulfill the two principles of speed and precision in transactions, it is necessary to have certain characteristics and be transformed from an affirmative proof (like common official papers) to moveable and moral property and be valid independent from basic transactions and relations. In this way, as the bill exists, it can’t be denied; it is valid and the validity is independent from basic relations. So, there is no doubt in the credit reflected in the bill and consequently, speed in commerce is gained. Some of the characteristics of commercial bills fulfilling these goals are: Bill operations being commercial, procedural and definitive; the principles of transferability of bills, joint and several responsibilities of signers of bill, sign independence, isolation of bill operations, unreliability of objections and the principle that liabilities arise from the bill.
Mohammad Jalali; Hamideh Saeedi Roshan
Abstract
Normative constitution is the highest law system and the consistency of this system requires, following the rules below from the Superior rules. From this view, preservation of the Constitution as the fundamental law governing the legal system of each country needs to legal ways of controlling instruments. ...
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Normative constitution is the highest law system and the consistency of this system requires, following the rules below from the Superior rules. From this view, preservation of the Constitution as the fundamental law governing the legal system of each country needs to legal ways of controlling instruments. This process is followed from two distinct complementary routes of constitutionalization of administrative law and administrization of constitution law by administrative courts and the administrative proceedings in government regulations. Administrative Justice Court (AJC), as the Supreme Court Established under Article 173 of the Constitution, is the court to monitor the actions and decisions of government officials, to adjudication the rights of people, and has the possibility of annulling unlawful decisions and outside of the scope of competence of public administration; in the absence of the Constitutional Court in Iran doing the duty of judicial constitution and judicial protection of the constitution, in practice, has played significant role for monitoring and safeguarding the constitution, especially in the field of public administration that is widest part of the state. In this article, we want to analyze the changing mechanisms of court in the process of constitutionalization of administrative law as a means to monitor the control constitutional of government regulations and most exaltation of processes protection of constitution. According to this, we will consider tools such as revocation of unconstitutional law regulations, supporting to principles of Constitution, interpretation of them and judicial procedure. Also are evaluated tools and Consequences of the process administrization of the constitutional law in procedure of administration Justice Court.
Mehdi sheidaeian; Zeinab Sheidain
Abstract
Most obscenity crimes are committed secretly. The disclosure of these offenses, due to their connection with the reputation of the citizens, has devastating effects on the perpetrators and the community. Hence, although from the point of view of Islam, obscenity crimes are condemned; but the criminal ...
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Most obscenity crimes are committed secretly. The disclosure of these offenses, due to their connection with the reputation of the citizens, has devastating effects on the perpetrators and the community. Hence, although from the point of view of Islam, obscenity crimes are condemned; but the criminal policy of Islam is based on the respect to the privacy of citizens. The implementation of this policy will prevent unnecessary disclosure, normalization, and ultimately prevents from spreading them. Therefore, the legislator of Iran declares the prohibition of prosecution and investigation of these crimes in accordance with the criminal policy of Islam in the Criminal Procedure Act 2013 and only prescribes it in exceptional cases that the expediency of prosecution and investigation is more, and of course this is bound and limited. These limitations include exceptions to the principle prohibition of prosecution and investigation, the prosecution authority, the extent of the judge's powers, and so on. The present paper seeks to explain, justify, and criticize the approach of the Criminal Procedure Act 2013 to obscenity crimes.
Bahram Darvish
Abstract
Since long ago, legal authorities of judiciary have disagreed about article 1085 of the Civil Code in regard to the scope of wife’s refusal right. Some have restricted it to particular and others have extended it to particular and general disobedience. Such disagreements and the issuance of contradictory ...
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Since long ago, legal authorities of judiciary have disagreed about article 1085 of the Civil Code in regard to the scope of wife’s refusal right. Some have restricted it to particular and others have extended it to particular and general disobedience. Such disagreements and the issuance of contradictory verdicts finally urged the Full Bench of the Supreme Court to issue a precedent verdict. According to the verdict the meaning of refusal right in the aforementioned article is general disobedience.
Zahra Saedi; Jalaleddin Ghiasi
Abstract
New penology has introduced its most important product with the name of selective inacapacitation for surveillance, control and management of high risk criminal. The presumotion of this policy is the committment of most crimes by small groups of criminals who have received the lable of high risking. ...
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New penology has introduced its most important product with the name of selective inacapacitation for surveillance, control and management of high risk criminal. The presumotion of this policy is the committment of most crimes by small groups of criminals who have received the lable of high risking. This approach for achieving its goals, by using prediction tools, has proceeded to select, classify and incapacitate of this group of criminals. It is alleged that selective incapacitation has resulted in decreasing crime rates, prison populations and costs. This article is an effort to show other realities; Realities such as objectivity seeing criminal, infringing the principle of proportionality, mistaking in predicting high risk criminals and reversaling the right of autonomy have challenged the legitimacy of this policy. Reducing in crime rates, prison populations and costs as the main aspiration of this policy has not yet been occurred. In addition, the regulations of Recidivism in perspective of selective incapacitation have been investigated in new Islamic penal code.
Mahdi Alhooe Nazari; Jamshid Yahyapoor
Abstract
According to civil law and jurisprudence basics, determination of price is one of the essential conditions for creation of sales contracts. The issue has been considered in the laws of many countries. In some countries such as Uk Advanced rules has been passed by which ability of specifying and even ...
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According to civil law and jurisprudence basics, determination of price is one of the essential conditions for creation of sales contracts. The issue has been considered in the laws of many countries. In some countries such as Uk Advanced rules has been passed by which ability of specifying and even failing to specify the price does not cause to invalidity of sale contract and the price can be determined by counter party or a third person, While in the Iran law system, according to dominant view it has been argued on specifying the price at the moment that the contract is being concluded and impossibility of confering it to others. Rare opinions exists between jurists and jurisprudence specialists which has more application as to social and economic necessities by which in some cases avoiding to determine the price or confering the issue to the other person would not cause any damage to the validity of contract.
Shahla Moazami; Mohammad Parsa
Mansour Rahmdel
Alireza Dabirnia
Abstract
The existence of numerous supreme councils in the iranian legal system and their’s practical independence from the executive has raised ambiguities in the status and authority of these councils thus research of them is important in constitutional and administrative law. Because the strict separation ...
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The existence of numerous supreme councils in the iranian legal system and their’s practical independence from the executive has raised ambiguities in the status and authority of these councils thus research of them is important in constitutional and administrative law. Because the strict separation between the executive and legislative affairs has not been done in the legal system thus establishment of the supreme councils by parliament can limit the authority of executive and increase the power of parliament.The supreme councils which established by parliament within the executive, cause an imbalance of power between the legislative and executive. "sovereign from and by the people" - regardless of the superior of each powers - has emphasised in the fifth part of constitution thus any interference by each of the powers within the other, may be considered as a undemocratic methods. Did you mean: از سوی دیگر «اصل صلاحیّت» در حقوق عمومی به هیچ قهوه ای اجازه نمی دهد تا نسبت به توسعه اختیارات خود بدون وجود تصریح در قانون اساسی اقدام نماید The principle of " Incompetence " in public law does not allow to any powers to increase their’s competence without any stipulation in the constitution, otherwise any unauthorized power development considered as a violation of people’s sovereignty. Regardless of the lack of strict separation between legislative and executive powers in the legal system, there are some supreme councils with the higher authorities but do not considered as a part of executive power. The supreme councils have features such as; legal position, regulatory or policy actions, using some powers of ministers, dominance of appointed members on Ministers and lack of effective supervision on activities of supreme councils.These features cause the formation of alternative political power to doing professional executive affairs beside the ministers’s authorities. In this situation, there is no supervision of the executive and legislative powers on the supreme councils activities.
Amirhossein Alizadeh
Abstract
Murabaha is an Islamic contract and one of the means of Islamic banks advance. In two ways, Murabaha will be signed: murabaha that a person purchase a commodity and sell with some profit; Murabaha that in addition to the buyer and seller, the bank participates in contract. The bank purchase the commodity ...
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Murabaha is an Islamic contract and one of the means of Islamic banks advance. In two ways, Murabaha will be signed: murabaha that a person purchase a commodity and sell with some profit; Murabaha that in addition to the buyer and seller, the bank participates in contract. The bank purchase the commodity from the seller, on the basis of purchase order, then under the murabaha contract, sell to customer with some profit. In this type, bank may sign agent contract with customer. Also it is possible that, the bank issue credit card. In fact, murabaha referred to "Inah'' that was expressed in the Islamic jurisprudence. In this type, the contract is made by combination of purchase order and customer’s obligation to purchase from the bank, the bank’s obligation to give agent to customer, payment on the basis of credit card and selling commodity to customer. In this contract, the bank acquires ownership of the commodity, and then sells to the customer. In this agreement, customer’s obligation to purchase from the bank, is legitimate and takes its binding power from mutual consent. In our law, Article 10 of the Civil Code can be documented for the legitimacy of this agreement. But agency granted by the bank to the customer and payment by credit card, is objectionable and drawback.
Nafise Shooshinasab; Abbas Mirshekari
Abstract
In this research we have tried to investigate if the victim’s predisposition would influence civil liability of tortfeasor. In exact words “Predisposition” means the unusual physical situation of the victim before damages are incurred to him. Sometimes the tortfeasor intensify victim’s ...
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In this research we have tried to investigate if the victim’s predisposition would influence civil liability of tortfeasor. In exact words “Predisposition” means the unusual physical situation of the victim before damages are incurred to him. Sometimes the tortfeasor intensify victim’s unusual situation and sometimes he changes the nature of his disability. We reached to a conclusion according to which, except causing perfect blindness which is effective in intensifying tortfeasor’s liability, in other situations, predisposition is effective in reducing tortfeasor’s liability. As a result, we should suffice to strict interpretation in the case of blindness.
Majid Nikouei
Abstract
The main purpose of this paper is to provide a justifying approach to rights embedded in international documents in light of Rawls’ Global Theory of Rights and, then, evaluating them from the said approach. Indeed, it is endeavored to distinguish justified rights from unjustified claims under the ...
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The main purpose of this paper is to provide a justifying approach to rights embedded in international documents in light of Rawls’ Global Theory of Rights and, then, evaluating them from the said approach. Indeed, it is endeavored to distinguish justified rights from unjustified claims under the rubric of rights. In this regards, John Rawls in his book, Law of Peoples, characterizes human rights as non-dependent on a particular ideology and religion, necessary, global and minimalistic. This paper, by evaluating human rights on the basis of the afore-said criteria, concludes that some of the alleged rights by international documents are unjustified and indefensible. Rather, they are ideals which, in any society and based on their common comprehensive doctrines and understanding of justice, are to be alleged and pursued. In the end, a reference shall be made to the necessity of formal and substantive criteria for the use of human rights concept and also to negative consequences of “rights inflation”.
Javad Javidnia
Ali Tahmasbi; Kourosh Alipour
Abstract
In legal systems, regarding the expected objectives, the various factors have been taken into account in determination of basis of civil liability in order to select a more appropriate rule. The liability may depend upon the commitment of negligence by tortfeasor or only the existence of the causation ...
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In legal systems, regarding the expected objectives, the various factors have been taken into account in determination of basis of civil liability in order to select a more appropriate rule. The liability may depend upon the commitment of negligence by tortfeasor or only the existence of the causation between the detrimental act and loss shall be enough for achievement of the liability. The present article, irrespective of basis accepted in legal systems, intends to study the effect of these rules on behavior of people and their encouragement in observing the precaution. In cases where the tortfeasor can hinder to occur the loss, the rule of strict liability may have the appropriate effect and encourage him in observing the precaution. But, if the precaution of tortfeasor and victim is necessary for prevention of occurring loss, the more appropriate effects shall be followed through applying the negligence or competitive strict liability. Such analysis makes it possible to consider the probable effects of rule on the behavior of the people and to be more appropriate or inappropriate, before constituting the rule and while taking into account the various aspects, and to take the proper actions for removal of its effects.
Seyed Bagher Mir Abbasi; Seyed Taha Mousavi Mirkalaei
Abstract
Unilateral Independence is considered a new legal institution in international legal system that the roots of its appearance lies in the existence of different minorities in the scope of states and their friction with that states. The present article intends to evaluate the legitimacy of unilateral independence ...
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Unilateral Independence is considered a new legal institution in international legal system that the roots of its appearance lies in the existence of different minorities in the scope of states and their friction with that states. The present article intends to evaluate the legitimacy of unilateral independence of these groups in order to establish a new state in international law, with respect to existing instruments including the International Court of Justice (ICJ) Advisory Opinion on unilateral declaration of independence of Kozovo. In spite of the ICJ advisory opinion this writing considers the legitimacy of unilateral independence from the perspective of international law as being not absolute and having an exceptional nature; although the domain of this exception comprises a widespread spectrum.
Gholam Hasan Koushki
Eghbal Ali Mirzaei
Abstract
Temporary act (or law) is a law which its validity terminates by termination of period that is determined in the same act. So, this law is rescinded without enacting a “repealing act”. Non-temporary acts are rescinded only by enacting repealing acts. Although the legislator can repeal temporary ...
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Temporary act (or law) is a law which its validity terminates by termination of period that is determined in the same act. So, this law is rescinded without enacting a “repealing act”. Non-temporary acts are rescinded only by enacting repealing acts. Although the legislator can repeal temporary laws in the period of their validity, he can repeal all laws in any time. Because the validity of laws is not an eternal matter.
Inside of temporary and non-temporary acts there are circumstantial laws; some acts are depend circumstances for which they were enacted. Thus by termination of those circumstances those laws may not be enforced. As such these types of laws are in fact temporary; albeit their validity period is not determined. But circumstantial and temporary acts are rescinded by expiring their period and without enacting repealing law. Therefore, those laws may not be forced by termination of those circumstances.
Mohammad Isaee Tafreshi; Mahmood Sadeghi; Mohammad Shah Mohammadi
Abstract
The legislature of our country has enacted quantum meruit for tangible assets and labour profits whereas nothing has been mentioned concerning intellectual property. However remedy has been accepted.
Taking into account the following hesitation as concrete existence of lease contract issue being an ...
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The legislature of our country has enacted quantum meruit for tangible assets and labour profits whereas nothing has been mentioned concerning intellectual property. However remedy has been accepted.
Taking into account the following hesitation as concrete existence of lease contract issue being an asset, unavailability of the same thing including patent due to the condition of being an innovation, we encounter the doubt whether the quantum merit could be applicable. Because 1- If an invention doesn’t enjoy the quality of innovation or is found to be the same as previous invention cannot be registered. 2- In civil law the contract of lease is defined in a way that it is exclusive to tangible assets while intellectual property is not only tangible but also there is doubt if they can be considered as assets.
The contract of license and the royalty for granting a license in the US law solved the above mentioned problems; the reasonable royalty in U.S law is similar to quantum merit. The laws of our country, nevertheless there are a few small differences. As long as there aren’t any certain rules predicted in our country, quantum meruit can be used for patents damage.
Mohammad Ali Babaei; Ali Najibian
Abstract
The situational prevention as a one of the prevention methods, is applied to a set of measures for diminishing and omitting conditions and opportunities in the crime perpetration. One of the reasons for accepting such prevention is the inefficiency of the social prevention. Though, the process of the ...
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The situational prevention as a one of the prevention methods, is applied to a set of measures for diminishing and omitting conditions and opportunities in the crime perpetration. One of the reasons for accepting such prevention is the inefficiency of the social prevention. Though, the process of the passing from the thought to the act is encountered some obstacles in such prevention, it does have the impediments and limitations which fades out its efficiency. In addition to human rights considerations, these limitations consist of: inflicting the expenses and applying the responsibility for injured parties, fearing the crime, also making the anxiety and fear in weak and disabled persons are resulted from the execution of approaches of the situational prevention. As well, the crime replacement, a matter which caused to change the culpable act in time, place and manner of perpetration and type of crime carried out, must be considered as one of the challenges.
