Iraj Babaei; Shahin Shamiaghdam
Abstract
One of the main functions of evidence law is to demonstrate the applicable standard of proof. In some kinds of evidence, it is not the case because fact finders make decisions according to the probative value of the evidence. In other pieces of evidence, there may be a need to find a standard. Lawyers ...
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One of the main functions of evidence law is to demonstrate the applicable standard of proof. In some kinds of evidence, it is not the case because fact finders make decisions according to the probative value of the evidence. In other pieces of evidence, there may be a need to find a standard. Lawyers trained in common law systems often enquire about the applicable standard of proof but in civil law countries and particularly Iranian law it depends on the discretion of judges and there are no clear rules. Instead, fact-finding standards are based on some general principles. In common-law systems, the standard of proof requires in ordinary civil cases the party who bears the burden of proof to establish by a "preponderance of the evidence". In some other civil cases "Clear and convincing" evidence is the main standard and in criminal cases "Beyond all reasonable doubt". By using normative considerations of efficiency, on the one hand, we may argue and propose that as the main principle, multiple standards are more efficient and will better align decision-making with fact-finding goals than using a unique standard and on the other hand, the preponderance of the evidence and clear and convincing evidence may be regarded as main standards.
Iraj Babaei; Abbas Toosi; Morteza Torabi
Abstract
Private autonomy is one of the principles of human rights,according to which the individual freely exercises his will fully, in individual and social life. Imposing a duty on a person is just when it is based on the free choice of the individual. The principle of freedom of contract and its consequent ...
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Private autonomy is one of the principles of human rights,according to which the individual freely exercises his will fully, in individual and social life. Imposing a duty on a person is just when it is based on the free choice of the individual. The principle of freedom of contract and its consequent principle of contractual freedom,with respect to the will and liberties, is also rooted in the principles of human rights.Contractual freedom has traditionally emphasized the negative side of freedom,namely the non-interference and sanctity of contracts.The positive aspect of freedoms is the emphasis on the free development of different aspects of personality that require intervention. The question is,can private autonomy be considered a positive aspect of freedom and prevent the exploitation of the parties? In a comparative study of German and British law, we will see that the principle of private autonomy,relying on the right to self-determination, is seen as positive aspect of contractual freedom, which is an important basis for upholding fundamental human rights in support of the weaker party and countering unfair conditions. In Iranian law,this principle can be extracted by means of principles that override the negative aspect of contractual freedom and limit the essential as necessary.
