Private Law
Badie Fathi
Abstract
Il est possible que deux ou plusieurs affaires connexes devant deux juridictions distinctes et egalement competentes est en train d’etre instruit et en ce cas il exige que ces affaires mettent ensemble, envisagant ces rasions: la réduction des coûts sociaux et économiques, ...
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Il est possible que deux ou plusieurs affaires connexes devant deux juridictions distinctes et egalement competentes est en train d’etre instruit et en ce cas il exige que ces affaires mettent ensemble, envisagant ces rasions: la réduction des coûts sociaux et économiques, de permetre au juge de connaître correctement le problème et de résoudre tous les aspects du litige plus rapidement, la bonne administration de la justice, la prévention des jugements contradictoires et l'intérêt d'une bonne justice de les faire instruire et juger ensemble. Dans ce cas, le demandeur et le défendeur ont le droit et même l'obligation de soulever de Exception de connexité Selon l'article 103 de la loi de procédure civile d'Iran approuvée le 9 avril 2000 après JC. L’exception de connexité peut être soulevée devant les deux juridictions .Les systèmes de procédure civile de l'Iran et de la France sont similaires à cet égard,, mais il existe également des différences : par exemple, si L’exception de connexité est acceptée, les affaires connexes devraient-elles être renvoyées devant le premier tribunal ou le deuxième tribunal ? Il est nécessaire d'avoir un lien entre les affaires dans la procédure civile iranienne et française. Le lien peut être un lien simple,un lien suffisant et un lien complet(l’indivisibilité des pretentions). Il semble qu'un lien simple ne puisse pas de se dessaisir et de renvoyer de l'affaire, mais un lien suffisant et un lien complète peuvent de se dessaisir et de renvoyer de l’affaire. Parce que dans ce cas il existe entre les litiges un lien tel qu'il soit de l'intérêt d'une bonne justice de les faire instruire ou juger ensemble.En Iran L’exception de connexité a caractéristique de l’ordre public Donc Le juge peut, d'office, ordonner la jonction de plusieurs instances pendantes devant lui Mais en France Il résulte des articles 101 et 103 Code de procédure civile que le renvoi pour connexité doit être demandé par les parties. On admet que le juge ne peut relever d’office l’existence d’une connexité entre deux affaires.L’exception de connexité peut être soulevée par l’une des parties, mais aussi par un tiers mis en cause ou intervenant volontairement au litige Et pour raisond'ordre public. Le délai de soulevée L’exception de connexité , contrairement à la règle stipulée à l'article 87 du Code de procédure civile, qui stipule que les exceptions doivent être soulevées avant la fin de la première audience, Elle peut être déposée devant la Cour d'appel et la Cour de cassation. Par consequent le délai pour soulevée L’exception de connexité n'est qu'à la fin de la première audience. En France, il y a toujours eu un scepticisme face aux exceptions à la tradition héritée du droit romain.Parce que les soulevée entraîne des retards dans les procédures et la justice. Selon cette tradition issue de la domination romaine in limine litis, à l'article 74 du Code de procédure civile, il est stipulé que Les exceptions doivent, à peine d'irrecevabilité, être soulevées simultanément et avant toute défense au fond ou fin de non-recevoir. Il en est ainsi alors même que les règles invoquées au soutien de l'exception seraient d'ordre public.La demande de communication de pièces ne constitue pas une cause d'irrecevabilité des exceptions. Les dispositions de l'alinéa premier ne font pas non plus obstacle à l'application des articles 103, 111, 112 et 118. Il est précisé à l'article 103 que L'exception de connexité peut être proposée en tout état de cause, sauf à être écartée si elle a été soulevée tardivement dans une intention dilatoire.Ce qui est dit à l'article 103 » sauf à être écartée si elle a été soulevée tardivement dans une intention dilatoire.«peut être critique est critiquable. , Parce que l'objectif principal L’exception de connexité est la prévention des jugements contradictoires et avec cette déclaration, cet objectif est violé.en France Les recours contre les décisions rendues sur la connexité par les juridictions du premier degré sont formés et jugés comme en matière d'exception d'incompétence.En cas de recours multiples, la décision appartient à la cour d'appel la première saisie qui, si elle fait droit à l'exception, attribue l'affaire à celle des juridictions qui, selon les circonstances, paraît la mieux placée pour en connaître. Mais en Iran Les les decisions Concernant L’exception de connexité ne sont sujettes à aucun recours. Il s’agit d’une faille dans la loi et il est suggéré de la modifier. le fait de ne pas pouvoir porter plainte dans ce domaine est l'un des défauts de la loi sur la procédure civile, et il est suggéré que la loi soit amendée.Lorsque les juridictions saisies ne sont pas de même degré, l'exception de connexité ne peut être soulevée que devant la juridiction du degré inférieur. Bien que cela soit contraire au principe Double degré de jurisdiction. Les tribunaux français ont rarement accepté la connexité international Mais en Iran, selon l’article 971 du Code civil, cela n’est pas acceptable.
Private Law
Mehdi Zahedi; Sara Solhchi
Abstract
In contemporary intellectual property law, literary and artistic property rights extend beyond mere movies or literary works to encompass the fictional characters integral to these creative endeavors. This legal support not only serves to inspire creators but also to safeguard their imaginative achievements. ...
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In contemporary intellectual property law, literary and artistic property rights extend beyond mere movies or literary works to encompass the fictional characters integral to these creative endeavors. This legal support not only serves to inspire creators but also to safeguard their imaginative achievements. Among these creations, fictional characters hold a profound influence over our daily lives and entertainment pursuits, spanning various media such as movies, books, and computer programs. Iconic figures like Sherlock Holmes, Batman, and Superman exemplify the significant fictional characters that have received such protection. Given the vast diversity of fictional characters, it becomes imperative to secure the rights of their creators, thereby fostering the necessary motivation for their ongoing creativity. Consequently, the principal objective of this article is to delve into the mechanisms by which fictional characters are safeguarded within the framework of literary and artistic property rights. Specifically, the article seeks to address whether it is feasible to independently protect these characters within this legal structure.
To achieve this goal, a descriptive-analytical methodology is employed, drawing upon court jurisprudence, particularly in the United States, to elucidate the legal underpinnings and delineate the elements, possibilities, and criteria for protecting fictional characters. Central to this examination are discussions on the concept of fictional characters, methodologies for protection, criteria for identifying infringements, proprietary rights, and protected elements. Moreover, it is important to note that data collection for this article follows a documentary and library-based approach. Utilizing the library method, a cornerstone of scientific research, ensures a comprehensive exploration of existing literature and resources. Through this methodological framework, data is systematically gathered and analyzed using a descriptive-analytical lens. The article concludes that fictional characters can indeed be independently supported, distinct from the larger artistic work. These characters are defined as "abstractions eliciting a response in the mind of the reader or viewer through written or spoken words." Consequently, certain guiding principles must be observed in supporting fictional characters, notably the principle of " idea-expression dichotomy." In the realm of works in in Literary and Artistic Property Law System, protection extends to the tangible expression of the work, rather than the underlying ideas. The work is defined as "the expression of creative and original literary and artistic thoughts of the creator that has been established in the outside world." Additionally, authenticity and fixation conditions are pivotal for support, ensuring the character's origin from the creator and its objective manifestation. Further examination focuses on tests designed to assess potential violations of fictional character rights, such as the " Distinct Delineation Test," the " Story being told test,” And the "three-part test." These tests evaluate elements such as physical appearance, identity, evolution, and narrative significance. Ultimately, an analysis of relevant cases demonstrates that courts recognize the possibility of independently protecting fictional characters, provided they exhibit originality and developed expression. The application of such tests within judicial procedures serves to bolster creator motivation, stimulate creative endeavors, and attract investment in cultural and artistic domains, alongside other cultural and social pursuits
Private Law
alireza bariklou; Alireza Azarbaijani; Hasan Omidvar
Abstract
The function of contemporary contract law goes beyond its classical function, which focused on the principle of contractual private and mutual interests. So that the function of contract law is to achieve social goals that are mainly to protect the security of legal relationship and necessity of debts ...
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The function of contemporary contract law goes beyond its classical function, which focused on the principle of contractual private and mutual interests. So that the function of contract law is to achieve social goals that are mainly to protect the security of legal relationship and necessity of debts payment, and not to harm others, the market regulation function whose main purpose is to support the market institution with three different approaches, -the self-reliance policy and minimal intervention, the transactional policy and exceptional intervention to finding the best solution to prevent the party from escaping the transaction, and the functional policy. Also, economic goals based on specific and case by case strategy such as the relief of hardship policies and general strategy such as economic planning policy of general rules to increase economic social welfare.
A transaction with the intention of escaping from religion is a legal act that has caused difficulties in ensuring judicial justice, because the obligee by concluding such a transaction practically deprives himself of financial power and as a result, his previous obligation becomes non-binding according to the provisions related to debt.On the one hand, this situation causes losses to the creditors who have entered into a long-term transaction with the debtor's property in trust, and on the other hand, it causes the trader to benefit unjustly and illegitimately from the legal protections of the debtors, because according to the legal philosophy of these protection provisions, assistance is to the real debtors who themselves did not voluntarily expose them to debt, not those who use these protections as a means to escape from their obligations.In addition, the prevalence of this type of transaction, which leads to the appearance of a transaction without a composition, which is known as a formal transaction, and also the conclusion of a transaction without the intention of implementation, leads to the justice of the law of contracts and the provision of judicial justice, facing a problem in the subject law. to be The explanation of the issue is that the status of any contract can be examined in two stages: First, it is in the identification and legitimizing stage, in which the contract is evaluated in terms of social interests and general goals of contract law. If the transaction was in accordance with the goals of the basic principles, it will be recognized in the structure of the rights of the contracts, otherwise it will be declared prohibited. For example, Gharari transactions are not recognized in Islamic law, because it is against the goals of the basic principles. If a deal in this stage is in accordance with the underlying principles, it will be accepted and then it will be the second stage of its validation in the relations of the parties and in a case-by-case manner, whether the concluded contract has the correctness conditions? Therefore, the compliance of the transaction with the general rules and goals of contract law is referred to as legitimacy, and its non-compliance is referred to as illegitimacy and its compliance with superstructure rules, and its non-compliance is referred to as "nullity". It is worth remembering that although many books and articles have been written about this, but all of them have analyzed the issue from the point of view of validity and invalidity, while this article examines from the point of view of the legitimacy of the principle of the transaction, which according to the principle of respecting the rights of creditors, the trust of the Muslim market. And the social benefits and the need to resolve the conflict, has he considered such a deal as legitimate? In Iran's contract law, "transaction with the intention of evading debt payment" has become a legal problem in contractual relations, because on the one hand, in Article 218 of the Civil Code, such a transaction is considered valid and valid, and on the other hand, in the criminal regulations, It can be prosecuted under the title of fraud and other criminal titles. In this article, in an analytical-descriptive method, while rethinking and deepening the principles of contract law and distinguishing the superstructure and underlying principles, the status of this transaction was investigated in accordance with the basic principles of contract law, i.e. the principles from which the rules governing contracts are adapted.The main question of the current research is, what is the legal status of the transaction with the intention of avoiding debt payment from the perspective of the basic principles of contract law? It seems that the invalidity of this transaction is considered from the point of view of Sharia, because it brings consequences such as harming the creditor's income, depriving the Muslim market of confidence and increasing contract disputes, all of which are considered illegitimate according to Shari'a arguments
Therefore, in this article, in accordance with the general goals and function of contemporary contract law, in a descriptive-analytical manner, the Iranian contract law approach to the transaction with the purpose to escape debt payment was examined and it was proved that this transaction is not compatible with any of these goals so it is necessary to be changed.
Private Law
Ahad Gholizadeh Manghutay
Abstract
Bill Amending a Part of the Commerce Act 1969 (BACAI) is ambiguous about the manner of directors board members’ and executive manager’s fiduciary possession of joint stock company’s property. Commerce Act in other companies deems manager’s possession of company’s property ...
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Bill Amending a Part of the Commerce Act 1969 (BACAI) is ambiguous about the manner of directors board members’ and executive manager’s fiduciary possession of joint stock company’s property. Commerce Act in other companies deems manager’s possession of company’s property as agent’s possession of principal’s property. But, although agent’s possession of principle’s property is fiduciary and fault-based, it is unknown whether in case the company’s property suffers damages, manager (agent) is responsible unless he proves his innocence (diminished fiduciary possession) or he is not responsible unless the principle proves his fault (intensified fiduciary possession). Besides, in case of any doubt, which kind overrules? Further, dividing responsibility manner among various responsible persons such as directors’ board members and executive manager needs some discussion. Dividing fiduciary possession into diminished and intensified is a result derived from amalgamation of stages of truth and established judicial situation, i.e., from amalgamation of civil evidence with commerce law. There are clear signs for it in Commerce Act. This research shows that the Legislature as in the Commerce Act has deemed agent’s possession of company’s property as diminished fiduciary possession; in the BACAI as well it has not principally changed its mind in respect to directors board members’ and executive manager’s possession into intensive fiduciary possession but annual audition and financial clearance have disrupted possibility of applying the diminished fiduciary possession. In case responsible persons were more than one, responsibility would be divided proportionally and if there was no reason to the contrary, proportions would be equivalent.
Obviously, determining manner of board members and executive manager’s possession can respond to a variety of issues about manner of their responsibility. Separation of fiduciary possession into diminished and intensified and setting the diminished fiduciary possession as principle is also helpful in this case, and in the first step, it determines that board members or executive manager are plaintiff or respondent of the lawsuit. Obviously, intensified possession in which responsibility continues to be based on fault should not be confused with guarantors possession in which liability is not based on fault. Although fiduciary possession can be converted into guarantors possession, and moment of this conversion can be determined by resorting to the principle of the lateness of the event. Diminished fiduciary possession, including customer’s possession, mortgagee’s possession and tenant’s possession may also become intensified due to unwanted staying of property at the possession of fiduciary; As we can see in the non-delivery of the cargo from the transport operator, the non-appointment of the successors of the board members with the expiration of their term of office, or in exercising the right of bailment of the transport operator. In fact, just knowing that the responsibility of board members and executive managers is based on fault has not been enough to respond to the relevant issues.
The legislator considers fiduciary possession of an attorney (or representative) to be a diminished fiduciary possession, i.e. the attorney is liable for the property he has been entrusted with unless he proves his innocence. Therefore, Commerce Act too considers the manager's possession on the properties of different types of companies, including limited liability, general partnership, limited partnership, joint stock partnership, and proportional liability partnership as diminished fiduciary possession. In the 1968 amendment bill and the Cooperative Sector Act, despite the inconsistencies in the amendment bill, the legislature has not promoted its view on the members of the board of directors and the executive manager’s possession to intensified fiduciary possession but annual audits and account clearances have impaired the possibility of applying diminished fiduciary possession In such a way that after auditing and approving the balance sheet and profit and loss account for each year, for that year possession is considered as intensified fiduciary for the board of directors and executive manager, that is, they are assumed to be clean for that year unless their dishonesty and culpability are proved. This can also be extended to the companies contained in the Commerce Act. In the event of a multiplicity of responsible persons, responsibility will be proportional and in the absence of the opposite reason, proportions would be equal.
There is no funding support.
Private Law
Mohamad hossein Taghipour; Seyedeh tahereh Mosavi khatir
Abstract
Any right, whether positive or negative, can be transferred. Assignment means that all or a part of the existing obligation is transferred to one or more persons with the agreement of the assigner and the assignee without obtaining the consent and agreement of the debtor, for compensation or free of ...
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Any right, whether positive or negative, can be transferred. Assignment means that all or a part of the existing obligation is transferred to one or more persons with the agreement of the assigner and the assignee without obtaining the consent and agreement of the debtor, for compensation or free of charge. The person who becomes the owner of the obligation after the assignment can use all the attributes and benefits of that obligation. One of the basic issues in the discussion of the assignment is the debtor's rights and the way to protect their rights in the assignment. The review of domestic laws shows the ambiguities and gaps of this legal entity, and the resolution of these ambiguities and gaps depends on comparative study. Therefore, this research with a comparative study aims to answer the question of what are the rights of the debtor in the assignment and how can the rights of the debtor be protected at the time of the assignment? In this research, in a descriptive and analytical way, the voluntary assignment and the way of protecting the rights of the debtor in the assignment in the legal system of Iran and English law and the principles of European contract law will be dealt with, which is appropriate considering the countless gaps in this matter. Iran's legal system benefited from the achievements of other legal systems, especially the principles of European contract law, which is an international document, and its basic foundations are based on European common law, in order to improve and eliminate gaps.
By referring to some laws such as Articles 746 and 321 of the Civil Code, Article 38 of the Insolvency Law, and Article 26 of the Insurance Law, it is possible to prove the existence of assignment in Iran's legal system and its independence and distinction from the legal institution of Novation. According to this research, the legal rules about assignment should be set in such a way as to protect the debtor. The first way to protect the debtor is the non-assignment clause in contracts, which is accepted in all three legal systems. In addition, there is a general rule in the assignment that the assignee cannot have more rights than the assigner, or even in some cases may have fewer rights than the assigner, which ultimately owes the benefits of this general rule. In addition, if the assignment takes place between the assigner and the assignee and the debtor takes action to fulfill the obligation to the assigner before receiving the official notification, in this situation, the obligee will not re-enforce the obligation and leave the resulting loss to the parties. In the rule of Prior Tempore Potior Jure, the first assigner is based on the date of assignment, and in the rule that was adopted in the case of Dearle v Hall, the date of written notice to the debtor is the criterion for determining the person entitled to enforcement.
In the British legal system and the principles of European contract law, a written notice to the debtor about the assignment is mandatory, but there is no provision in Iranian law regarding the written notice to the obligee after the assignment. This issue is also one of the important objections regarding the assignment request. Of course, according to the insolvency Law, the assignee can be released from responsibility by proving that he informed the assignment before payment or that the debtor was informed about the assignment by another means. Therefore, in Iranian law, the knowledge of the debtor is effective in transferring the claimant, and this knowledge can be realized in both written and oral ways.
So the necessity of compiling and enacting comprehensive laws in relation to the legal entity of the assignment and assigning an independent title to it in civil law considering the great importance of this legal entity and especially considering the expansion of transactions in the field of international trade and increasing the speed of exchanges, is seriously felt. Also, like English law and the principles of European contract law, in Iranian law, a written notice to the debtor about the assignment must be required in the form of a statement or by the court officers, because in this case, it avoids creating any dispute and ultimately leads to a reduction in the number of claims.
Private Law
Mojtaba Eshraghi Arani
Abstract
The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to ...
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The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to vessel for instance) or another mode (sea vessel to vehicle, vehicle to aircraft, etc) which is called “transshipment”. Transshipment from a technical viewpoint, is a cargo management operation which along with other methods, including “Ro-Ro carriage” and “Cross-stuffing” leads to less cost in transportation. However, in the legal terms it might be deemed as “deviation” and a fundamental breach of the contract.Transshipment is either predicted by the parties to contract of carriage (bill of lading) or the fortuitous events in the voyage necessitate such operation. This issue is so important that not only in the bill of lading but also in the sale contract and letter of credit is dealt with and one must answer this question that in the case of no agreement on the transshipment, is such operation, in principle, allowed or not? Obviously, this operation brings about delay in the process of carriage and other risks like sea pollution (in the case of oil transfer) which affects the interests of not only the cargo owner but also other merchants including the LC issuing bank and even the state authorities like department of Customs. Therefore, this article is going to scrutinize the legal conditions under which the carrier is authorized to do transshipment in accordance with the international conventions and the particular contractual conditions like “liberty to transship clause”.Moreover, the consequences that such operation brings in terms of the liability and rights of carrier are dealt with in this article. These consequences are analyzed in two parts: when the transshipment is allowed and when it is not allowed. In the latter case, one should see whether the same impacts of deviation under maritime law are applied on trans-shipment so that the contract of carriage is frustrated and the carrier is deprived of invoking to liability exclusions and limitations (based on the international conventions) or some other peculiar consequences must be looked for. On the other hand, this article has analyzed the consequences of allowed transshipment in particular, whether the carrier liability ceases to continue after the transshipment or he is still liable for all damages; moreover, this issue is dealt with that whether the exclusion of liability clause for damages after transshipment is valid or not. Finally, the carrier entitlement to freight after the transshipment is discussed in this article further to the person who is liable for transshipment costs: carrier, shipper or consignee? According to the explanations given in this article, it can be concluded that despite the many risks caused by transshipment or the transfer of cargo from one device to another, this operation is an integral part of transporting goods in Many items have been converted. The advancements of the transportation industry, especially the container revolution, have helped to resolve the concerns of traders about the risks and costs of transshipment, so that the agreement between the buyer and the seller on the possibility of transshipment if the cargo is transported in a container, is recognized by the legislative authorities and the International Chamber of Commerce, a clear example of which can be seen in UCP 600 (Article 20).Not only transshipment is done under the strict control of government authorities to reduce the scope of fraud in relation to export, import and customs regulations, but in the private relations of the parties to the contract of carriage, the principle is that the transshipment is impermissible unless according to the explicit or implicit agreement of the parties or the procedure of the related business is that the transshipment is predictable and within the common intention of the parties, or that due to unforeseen reasons, the completion of the voyage depends on it, which in the latter case, the Iranian Maritime Law (Article 157) not only allows the captain but also obligates him to transfer the cargo by another means.Unauthorized transshipment, although according to the opinion of some jurists, it produces the same effects as "deviation" in maritime law, but the opinion that only considers it a fundamental violation of the contract of carriage and causes the right of termination and compensation for the cargo owner is in accordance and more compatible with the legal rules. In the assumption that the carrier is authorized to carry out these actions, the governing spirit of the international regulations of transportation as well as the Iranian commercial law indicates that the responsibility of the carrier remains after the transshipment, although the exclusion of liability clause for damages after that should also be legitimate under certain conditions.Also, it is concluded in this article that the costs of transporting the cargo by another means of transport due to the termination of the transport contract and according to the rule of the management of third party’s property (which is applicable in fortuitous transshipment) should be charged to the account of the owner of the goods, unless the incident is temporary and the carrier is in line with the execution of the contract has taken it upon himself. The same reasoning will apply to the carrier freight the carrier shall not be deprived of its outstanding freight due to transshipment.
Private Law
Hamid Reza Oloumi Yazdi; Alireza Danesh Ara
Abstract
Recognition and enforcement of arbitral awards by the competent court when the judgment debtor does not comply with the award willingly is the last step in the settlement of a disputes through an agreed arbitration procedure. The recognition of the arbitral award by a court grants the arbitration ...
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Recognition and enforcement of arbitral awards by the competent court when the judgment debtor does not comply with the award willingly is the last step in the settlement of a disputes through an agreed arbitration procedure. The recognition of the arbitral award by a court grants the arbitration awards an enforceability likewise the judgement of a courts. Recognition and enforcement of arbitration awards by the courts upscales such awards to an enforceable and binding level as it’s enforceability has been endorsed by the law. Moreover, when an arbitral award has been recognized by the court, then the outstanding case shall enjoy the status of a res judicata award which bars the parties to the dispute to take the case to the court or the arbitral tribunal again. The recognition of arbitral award has been mainly focused in international arbitration and in international legal literature such New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958) as well as in ICSID Convention for settlement of disputes between foreign investors and sates. However, less attention has been paid to the step of recognition in national arbitration awards, yet it calls for a closer consideration under the national applicable law of the seat of arbitration or the place of its enforcement. The study of judicial precedents in Iran proves that recognition of an arbitral award is likewise a prerequisite for its enforcement. Under Iranian law an arbitral award could be enforced by the court when it does not contradicting the public policy, mandatory rules of law, and the rules of substantial law granting/securing a right. Consequently, when a court order for enforcement of an arbitral award, in fact the court has preliminary recognized its enforceability and its conformity with these three said criteria. In this way, the recognition of a national arbitral award should be considered as a distinguished step in the process of its enforcement. This paper, by looking to the Iranian court precedent, intends to answer to the questions relating to the legal nature and consequences of recognition of a national arbitral award, as well as explaining the procedural rules applicable to this concept, such as the method and form which should be followed for such a request, the legal nature of the court’s decision on this matter, and whether this decision is subject to appeal or not. However, it should be noted that, due to lack of an integrated system for record and publishing of court’s judgments in Iran this research has been confined to the available records.Under Iranian court’s practice and precedent, the recognition of an arbitral award may be requested from the competent court by a “request” from the beneficiary party and it is not necessary to file a “petition” as requested for bringing substantial claims before a court . The court shall deal with such a request as a matter of procedure and not as a matter of substance by checking the procedures followed by the arbitral tribunal. The court may not invite the parties for a hearing session and is not obliged to follow the default rules set out for proceedings in other cases. The decision of the court on the matter of recognition shall be in the form of and “order or decision” by the court, not a judgment, stating the recognition or rejection of the arbitral award. Such a decision may be subject to an appeal like any other decisions of the courts. If the arbitral award has not been recognized by the court, which means in practice the request for its recognition and enforcement has been rejected by the court, the same case cannot be heard by the arbitral tribunal again, but it should be heard by the competent court. However, according to the dominant practice of the courts, the arbitration agreement shall be survived for any other disputes might arise out of the same contract.In the light of judicial policy of Iranian government to pursue people to the out of court settlement of their economic and commercial disputes, in particular by promoting mediation and arbitration, Iranian courts have recently shown more tendency to support and help in recognition and enforcement of national arbitration awards. This approach has been demonstrated in the court decisions and judicial precedent referred to in this paper. In brief, the importance of stage of recognition of an arbitral award should not be broadly interpreted by the courts to jeopardies the said policy, promotion of arbitration and enforceability of the arbitral awards.
Private Law
Reza Shokoohizadeh; Hani Hajian
Abstract
By holding a definitive judgment, normally the trial transfers from one phase of proceedings to the next one. For example, in the case of holding the judgment of non-acceptance of action or the judgment in the merit of the case by the court of first instance, the case enters in new phase by appeal of ...
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By holding a definitive judgment, normally the trial transfers from one phase of proceedings to the next one. For example, in the case of holding the judgment of non-acceptance of action or the judgment in the merit of the case by the court of first instance, the case enters in new phase by appeal of condemned party. In these cases, the trial transfers from one phase into another one according to evaluative effect of appeal. But holding the definitive judgment does not necessarily result in transferring the trial from one phase to another one. For example, in cases where the court of first instance’s injunction, would be invalidated by the court of appeal and consequently the case return to court of first instance, it could be recognized that the holding of the definitive judgment, by the court of first instance could not result in termination of one phase of trial and opening of a new one. Consequently, the trial which is pursued after reversal of any form of injunctions is regarded as continuation of former trial. It is noteworthy that pronouncing a judgment in merit of a case doesn't necessarily results in transfer of trial from one phase to another one. In fact, by reversal of a judgment by higher courts, it reveals that trial of inferior court had not been finished and it must be continued. Controversies arise between Iranian lawyers in respect of regarding rehearing as a new phase of trial or continuity of former trial. There are many evidences that confirm latter theory, including automatic reversal of contested award after rehearing of absent party or necessity of protection of procedural rights of parties in the first session of trial. For practical reasons, the second section of this article is dedicated to effects of continuity of trial on responsibilities of courts and rights and obligations of parties. In respect of first title, one of the responsibilities of courts is observation of reasonable deadline of trial. In this regard, if trial of first instance and rehearing proceedings is considered as a unique trial, the whole time of trial would be considered as criterion of recognition of reasonable deadline by the court. Accordingly, competence of court is affected by continuity of trial. In accordance with Art. 26 of Iranian Civil Procedure Code, the competence of court is evaluated in time of statement of petition. Consequently, in case of reversal of injunction of court of first instance by the appeal court, the competence of former court is measured by time of petition, not reversal of judgment or return of petition. Similarly, the impeachment of the judge may be affected by the continuity of trial. One of the main reasons of impeachment of judge in Iranian Law is former pronouncing on the merit of the case by the judge (Art. 91 Iranian Civil Procedure Code). Consequently, if we consider the retrial of the inferior court, after the reversal of the injunction by the higher jurisdictions, a new trial, the former proceeding may impede the judge from later hearing of the case. The continuity of proceeding affects the responsibility of court to form new session and to pronounce new judgment on the matter. If we consider rehearing as a new phase of trial, the judge must pronounce a new judgment and could not only uphold the former judgment. Additionally, the rights and responsibilities of parties may be affected by continuity of proceedings. In cases where the statement of petition is limited to a deadline, the continuity of proceeding affects the validity of petition. If we consider the trial of inferior court, after reversal of its judgment by higher court, as a new trial, the time of statement of new petition may consider as the criterion of acceptance of petition. The continuity of proceedings affects mainly the rights and obligations of parties in the first session of proceedings. In the case of continuity of an unique trial, reopening of a case in the same court, don't result in revitalizing the rights and obligations of the parties in the first session of the trial, because of fact that first session had been formed before the reversal of judgment. In contrary, reopening of a case in same court, in different phases does cause the revitalizing the rights and obligations of the parties in the first session of this trial.
Private Law
seyyed Mohammad Sadegh Tabatabaei; Mohammad Amini; mahmoud rastegari
Abstract
If the guarantee contract is separated in a general division into the guarantee of transfer of Dhimmah and the guarantee as a tool to give credit to the obligee, the guarantee which is customary in commercial documents is the second part of the above division. The holder of the commercial document wants ...
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If the guarantee contract is separated in a general division into the guarantee of transfer of Dhimmah and the guarantee as a tool to give credit to the obligee, the guarantee which is customary in commercial documents is the second part of the above division. The holder of the commercial document wants to introduce a guarantor while remaining the obligation and responsibility of the person who is the guarantor, in order to increase the strength and validity of the document and to raise his collective conscience in paying the amount of the commercial document. Therefore, the main question of the current research is that in the guarantee of commercial documents, is it engaged in the Dhimmah or responsibility? What effects will this detail have on the extent of the owner's rights? After researching and studying the works of jurists and jurists, and using a descriptive-analytical method, the authors came to the conclusion that in the guarantee of commercial documents, unlike the civil guarantee, the obligation to pay the amount of the document is placed on the guarantor, and such a view is also based on It increases the credibility of the commercial document and affects the rights of the holder.According to the nature of the issue of guarantee in commercial documents, i.e. the substitution of responsibility for the Dhimmah, after the occurrence of the guarantee, the guarantor is independently responsible for paying the amount to the holder of the commercial document without his obligation being subordinate to the Dhimmah of the main debtor.After the conclusion of the guarantee in the commercial document, if it is determined that the obligation of the main debtor was invalid during the issuance or transfer of the commercial document due to reasons such as forgery of the signature or lack of capacity, and for this reason, the debtor on the date of the document, because of the forgery his signature or lack of legal capacity, raises objections and refuses to pay, it must be said that regarding fake signature and lack of legal capacity, there is no discussion about the obligations of the holder; Rather, the discussion is about the commitment itself, because the commitment is the guarantor of an independent commitment. The subordination of guarantor's guarantee in commercial documents is not related to the principle of the obligation itself and it is related to the duties and legal conditions of the demand, which if the holder of the commercial document does not comply with the formalities of the demand for the document's payment within the specified period, he cannot, in terms of the commercial document, refer to the guarantor, but the fault of the holder has nothing to do with the independence of the guarantor's obligation in front of the principal debtor. In fact, in this research, guarantee is in a sense other than the concept of transfer and attachment. Because in the two concepts of transferring or attachment, the subject of the guarantee is the Dhimmah and a function of the debtor's Dhimmah, but in the guarantee of commercial documents, what is important is the independence of the guarantor's responsibility in dealing with the holder of the commercial document.The limits of the guarantor's responsibility (which include: the guarantor's relationship with the debtor; the relationship of multiple guarantors with the debtor; the relationship between multiple guarantors; Condition of mortgaged property; Collapse of debt obligation; Invalidation of debtor's obligation; Death of guarantor in relation to holder), the scope of the obligations of the officials of the commercial document towards the guarantor, the scope of the law (Statute) governing commercial documents, and the scope of defenses that cannot be cited against the guarantor (which in part consists of (1) irrefutable objections related to the will, which include the objection of forging the debtor's signature; Debtor's lack of legal capacity; forgery in the document after the signature of the debtor and guarantor; The problem of signing the document by the debtor's representative lacks authority, and in another part, it consists of (2) objections that cannot be relied on other than the will, that is, the guarantor's substitution of the debtor, as well as compliance with the deadlines for protesting and filing a lawsuit) will be the influencing factors in this connection
Private Law
mahdi shahabi
Abstract
Louis Le Fur's thought should be seen as a symbol of the interaction of metaphysics and reality; The duality that finds another interpretation in Le Fur's language, that is, natural law and objective law. The requirement of the mentioned interaction is not to consider Le Fur's philosophical framework ...
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Louis Le Fur's thought should be seen as a symbol of the interaction of metaphysics and reality; The duality that finds another interpretation in Le Fur's language, that is, natural law and objective law. The requirement of the mentioned interaction is not to consider Le Fur's philosophical framework as rationalism or Kantian philosophy and to consider Aristotelian philosophy as the origin of Le Fur's thought. However, Le Fur's natural law seems to have taken its validity from the traditional rationality that is based on tainted wisdom; A rationality that can be considered as its inherent spiritual or spiritual illumination. Therefore, Le Fur's enlightenment should not be considered an experimental enlightenment, like the enlightenment of philosophers such as Petrazyski and GényIn his analysis of the basis of the validity of his natural law, Le Fur is so close to his contemporary traditionalists such as René Guénon that he states that man is the God`s Caliph. Any legal concept that does not consider the eternal soul of man in his analysis cannot be evaluated as a correct perception.However, unlike the same traditionalists, Le Fur does not give a role to revelation in the objectification of the concept of natural law and justice. He does not evaluate the transition from Catholic jurisprudence to Protestantism negatively. Le Fur's concern is the synthesis of metaphysics and reality.But, without a doubt, what Le Fur means by this metaphysics is not human metaphysics; rather it considers divine metaphysics. Therefore, one should not think about the transition from Catholic jurisprudence to Protestantism. We know that traditionalists like Guénon consider the transition from Catholic jurisprudence to Protestantism as the meaning of passing traditional rationality.Nevertheless, his belonging to perennial wisdom has not hindered his empirical methodological approach to the compatibility of natural law with the nature of things and has not led to Shari'a voluntarism as an all-round ideology.Apparently, it remains at the level of mere general ideology, and this generality, in addition to opening the way for Le Fur's experimental method, also leaves unanswered the fundamental question that when the divine legislative will has no role in detailing the perennial law, so in which direction perennial wisdom is supposed to guide a person?It seems that Aristotelian philosophy has clarified its task concerning perennial wisdom. By removing the divine legislative will, Aristotle practically accepts that evolution should be left to the hands of history and the passage of time; the approach and result that Le Fur has not been able to get rid of.The fact is that Le Fur's type of law is a symbol of evolutionary experience, and from this point of view, its basis should be sought in the nature of Aristotelian objects. It seems that these types of law fulfill the function of objectifying or objectifying traditional rationality. It plays a role in Le Fur's legal thinking. It is clear that such a position for the nature of things, in order to interact and synthesize with traditional rationality, is not acceptable in traditionalist thought such as Guénon.Interestingly, by adopting the experimental method, Le Fur also comes to the conclusion that there is superhuman rationality that guides the world; and that man is not only the mind; it does not just matter. Man is both material and mental, and for Le Fur, it is surprising why the experimental method of positivists is unable to see and verify such realities.Despite this, the result of the synthesis of Le Fur's metaphysics and empirical reality is very limited, and practically, perennial Le Fur's wisdom, from the perspective of a humanist view, will not seek a different interpretation of the nature of Aristotelian objects. In other words, by relying on it, you cannot be a watcher of Catholic jurisprudence. But, on the one hand, it is possible to avoid falling into the trap of the empirical illumination of philosophers like Petrazyski;The drawback of empirical illumination is that it does not open an evolutionary path for the transition from Sien to Sollen. There is a possibility that he may regress and sometimes evaluate slavery as favorable; it is difficult to separate it from public opinion and it leads nowhere.On the other hand, relying on Le Fur's thought, it is possible to establish a philosophy of law in which law is neither a captive of pure materialism nor is it caught in Kant's subjectivism, which synthesizes the hierarchical system of law with empirical reality does not wantA result can also be achieved in the framework of the nature of Aristotelian objects. According to its evolutionary approach, Aristotelian philosophy cannot deny the law of Le Fur and accepts it. Le Fur's thought in the field of contract does not have a different result compared to Aristotelian philosophy. In Le Fur's contract, like the Aristotelian contract, the principle of the sovereignty of the will is not the rule in order to result in a practically positivist justice.
Private Law
iraj babaei
Abstract
Despite the existence of many rules regarding liability for causing damage to another in Islamic law and the extensive fiqh doctrine in this regard, it has not developed into an independent branch of legal studies and laws within Islamic law. However, the law of Torts is recognized as an original branch ...
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Despite the existence of many rules regarding liability for causing damage to another in Islamic law and the extensive fiqh doctrine in this regard, it has not developed into an independent branch of legal studies and laws within Islamic law. However, the law of Torts is recognized as an original branch of law in modern Iranian law. Influenced by modern French and Roman-German tort law doctrine, Iranian legal doctrine has established general rules and theories of tort law that can be applied to all aspects of causing harm to others. This approach differs from the approach taken by faqihs (Islamic jurists) towards torts, which form the basis of modern Iranian law. According to the Constitution of the Islamic Republic of Iran, all rules of Iranian law should be in accordance with Shiite fiqh. Shiite fiqh applies different principles to different torts, and there is no general rule or principle applicable to all torts. Due to the influence and supreme position of fiqh in modern Iranian law, these differing approaches have led to significant misunderstandings in modern Iranian Tort law. It seems that the most suitable and efficient approach for Iranian tort doctrine is to move away from the idea of unified tort law and consider this area of law as diverse, where different general rules are applied based on the nature of the specific tort.In fact, according to modern Iranian doctrine, all torts are based on three elements: Damage, Act of harm to another, and Causation. The doctrine discusses each element independently. Regarding Damage, the doctrine presents different types of damages: physical damage to property, financial and economic losses, personal injury, moral damage, etc. If the damage suffered by the claimant is recognized as reparable under tort law, the element of damage is satisfied. The doctrine then considers different ways in which civil liability can be established, such as negligence, personal acts, vicarious liability, traffic accidents, malpractice, and more. Finally, the doctrine addresses causation as a necessary condition for civil liability. When all three elements and their respective conditions discussed in separate parts are met, there will be a liability to compensate the victim by making payment for the damages. The doctrine then proceeds to explain how damages should be compensated. Generally, the compensation principle is presented as a golden rule applicable to all forms and types of damages: the tortfeasor is liable to fully compensate for the damage suffered by the victim without making any profit.Considering tort law as a unified concept, the argument about the foundation of tort law (Negligence or Strict liability) has been presented as a unique principle applicable to all kinds of torts, damages, and acts that engage civil liability. However, this approach does not align with actual Iranian law based on Shiite fiqh rules. The conditions and effects of tort law differ depending on the nature of the damage, and the compensation rules vary accordingly. For instance, in cases of damage to properties, civil liability is established when physical damage to property is caused by a tortfeasor, regardless of whether negligence was involved or not. In this area, there is no distinction between intentional and unintentional harmful acts, and strict liability is recognized as the foundation of tort law. On the other hand, the conditions for pure economic or financial loss are different. These damages are not considered as engaging civil liability unless they are caused by a criminal act (intentional malicious act). The compensation principle applies to all kinds of property damages.The conditions for engaging civil liability for personal injury differ from those for property damage. Civil liability to compensate the victim with monetary payment is primarily established for unintentional acts. In cases of intentional harm, there is no civil liability, and the tortfeasor is subject to retaliation as a crime. When civil liability is recognized, similar to property damages, torts are based on strict liability. The amount of damages for any bodily injury is determined by law, and the compensation principle does not apply in this field.Regarding moral damages, the conditions for civil liability are different from other types of damages. Traditional law did not anticipate civil liability for moral damages, considering harmful acts as crimes punishable by appropriate punishment. However, in recent criminal procedure laws, civil liability alongside criminal punishment has been recognized in relation to moral damages. Although civil liability for moral damages is provided for by law, it appears that the nature of liability remains punitive for the tortfeasor. The deterrence aspect of civil liability is essential in determining damages, with the amount of money determined primarily based on the intention and malice of the harmful act and its impact on the victim. Consequently, the compensation principle does not apply in cases of moral damages, and damages are determined more by considering the circumstances of the harmful act rather than solely focusing on the harm itself.The conditions, elements, and effects of other areas of tort law such as Nuisance and Trespass differ significantly from those mentioned above, as discussed in both Fiqh's (Islamic jurisprudence) and legal Iranian doctrine.Considering all these differing conditions, elements, and remedies in governing Iranian Tort law, it becomes evident that there is no singular logic of tort in Iran; instead, there are multiple torts. The modern doctrine that follows a unified logic and approach to torts makes a significant mistake in understanding the rule of law and often leads to uncomfortable suggestions for its development. A better way to understand the applicable rules and propose new ones is to study Iranian tort law according to a multiple theory that aligns more with traditional Iranian law and Shiite fiqh rather than following the logic of tort law in French civil law or Roman-German approaches.
Private Law
Nahid Parsa
Abstract
Traditionally, the driver of the car is responsible for the damages caused by the accident. In self-driving and semi-autonomous cars, the term driver has either lost its meaning or has been diluted. The purpose of this article is to examine the civil responsibility of the user and the car against the ...
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Traditionally, the driver of the car is responsible for the damages caused by the accident. In self-driving and semi-autonomous cars, the term driver has either lost its meaning or has been diluted. The purpose of this article is to examine the civil responsibility of the user and the car against the damages caused by self-driving cars and to answer the question that in compensating for the damages caused by self-driving cars, should the traditional driver still be held responsible or is the virtual driver responsible? Is it possible to impose civil liability on self-driving cars, independent of the driver? Who is responsible in cases where the self-driving car acts based on the theory of deep learning outside the framework of the instructions? This article proceeds with a descriptive-analytical approach and by examining and pondering the rules of civil liability, and after analyzing the issue, it concludes that the driver alone cannot be held responsible in fully automatic levels, and the existing laws are not sufficient for the rights of the victims of driving accidents of self-driving cars, especially in fully automatic levels, and there is a need to amend and change the current laws. One of the novel points of the article is the examination of the combined responsibility of the traditional driver and the virtual driver. It also separates the responsibility of the driver in semi-autonomous and fully autonomous levels and examines the basis of each.In recent years, the technological innovations of the on-road vehicle industry have been accompanied by dramatic advances in self-driving cars. Automated vehicles offer a host of opportunities for safer roads, reduced travel times, more personalized services and energy efficiency. Of course, there are obstacles that can prevent the spread of self-driving cars. In particular, some limitations have been identified. One of the problems is the current legal framework for road transport, which does not easily accommodate the situation where the car is an autonomous system and lacks a comprehensive and uniform approach to autonomous vehicles.In Iran, the first phase of the self-driving car project was put into operation in 2014. The following year, the final product was successfully tested. However, following this incident, Naja traffic police chief banned the use of self-driving cars due to the lack of relevant laws and the lack of identification of the person responsible for the possible accidents of these cars. Also, in article 7 of the plan for organizing the automobile industry approved in 2017, it was mentioned to create the necessary platforms for the introduction of new technologies, but this plan has remained at the level of the plan so far. Self-driving cars significantly emphasize the issue of responsibility. There are three main types of liability related to road traffic: civil liability (compensation for damages caused to third parties), criminal liability (being liable for personal injury) and administrative liability (traffic rules). However, self-driving cars present a whole new challenge from a liability perspective. Undoubtedly, liability arising from traffic accidents is the most important part of civil liability. In Iranian law, the civil responsibility of the owner of a land motor vehicle is in the form of a requirement to obtain compulsory third party insurance. Unfortunately, wherever there is a discussion of civil liability in traffic accidents, it has always been confused with insurance issues, while, only, the effects of civil liability are related to the effects of insurance. In the correct situation, the insurance law should be different from the issues of civil liability, rather than looking for the issue of civil liability among insurance rules. In this article, only issues related to how to fulfill the civil responsibility of users and self-driving cars are expressed, and the effects of responsibility are not included in this article.The emergence of self-driving cars in road traffic on a larger scale will create many problems in various fields, including law. In case of loss of health, life or other injuries, it should be determined who will be responsible? The user, the manufacturer of such a car or its owner? The US Department of Transportation estimates that approximately 94% of accidents on American roads are caused by human error.If the legal framework does not include any specific requirements for self-driving vehicles, the owner, driver and manufacturer will be subject to the same legal requirements as traditional cars. On the other hand, if the legal framework introduces specific regulations for autonomous vehicles, the traditional requirements of all three mentioned stakeholders may change. Most of the existing regulations affect the production of self-driving cars. However, regulatory changes may also affect owners and drivers. For example, a special driver's license may be introduced for self-driving vehicles. or that the insurance requirements for the owner of an autonomous vehicle be modified in relation to conventional vehicles. Legal solutions require consideration of the degree of responsibility that can be placed on the driver of the self-driving car and the product liability of the self-driving car, although some authors may treat liability homogeneously, for example, some believe that the negligence standard is used in the driverless car as well. Determining how much liability can be held by the human driver or the car manufacturer will be a major challenge in the courts, as the proliferation of self-driving vehicles increases accident rates. Laws on car ownership, road traffic, criminal liability, security, privacy protection and civil liability must be changed. Accelerating regulatory changes becomes necessary, especially as semi-autonomous vehicles are already on the road and involved in traffic accidents.In the US, there are approximately twenty-nine states that have driverless car laws that address self-driving cars on the road — states like Florida that allow self-driving cars on public roads. allows driving, or Arizona that a negligent driver may be liable for death in a self-driving car accident. However, a common theme among states like Michigan and Nevada is limiting manufacturer liability for self-driving car accidents.In 2018, a bicyclist collided with an Uber self-driving car in Arizona, sparking questions about how civil liability applies in self-driving car accidents. What happens when a self-driving vehicle crashes into a pedestrian or another driver? Is it the fault of the driver who did not control the car from the beginning? Is this artificial intelligence that caused the accident? Is it the car manufacturer that assembled and supplied the car in a defective manner and is responsible? When is the driver allowed to take his hands completely off the steering wheel and when is he allowed to control the car? Should there be limits to what he can do in the car? Additional questions arise from the interaction between driverless and manned cars. Unlike the previous sources, which have only expressed the civil responsibility of the user, without distinguishing between the semi-autonomous levels (where the driver generally maintains his traditional concept) and the fully autonomous level (where the driver loses his traditional concept completely). In this article, these levels are separated and the civil responsibility of the driver is examined at each level, and some sources are satisfied only with a mechanism for compensation without determining the responsibility in self-driving accidents.
Private Law
Mohammadreza Pasban; Abbas Toosi; Mohammadreza Mazaheri
Abstract
In the era of rapid technological progress, companies which are important and influential pillars in society, cannot continue their existence with the same old slow methods, commensurate with the speed of impact of technology, especially smart technologies on society, and they should think about using ...
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In the era of rapid technological progress, companies which are important and influential pillars in society, cannot continue their existence with the same old slow methods, commensurate with the speed of impact of technology, especially smart technologies on society, and they should think about using the new and more agile ways of directing the corporation. As the working environment of companies has become more complex, which is caused by the need to process large amounts of information and data and make faster decisions, and on the other hand, scandals caused by the improper performance of company directors, Trust in directors has been weakened. Restoring this trust requires the selection of directors who are far from personal interests and bias and perform their duties with enough loyalty and care. In such a situation, the characteristics of artificial intelligence have attracted the attention of company directors and corporate law experts to the possibility of using it as a director of commercial companies, and in scientific circles, the question of whether AI can be used as a director in the economic and social sectors, especially in commercial companies has become a hot debate. However, the entry of artificial intelligence into the board of directors faces challenges that mostly arise from the autonomy and different characteristics of autonomous artificial intelligence from the technologies before it. The competence to accept the position and how to perform the fiduciary duties and obligations of directors, as well as identifying the regime of responsibility, are the most important challenges in choosing artificial intelligence as a director. The approach and purpose of the article is to explain the competence and the possibility of performing the duties and obligations of directors by artificial intelligence and to identify the efficient responsibility regime, to the extent of proving the possibility of becoming a director. In this regard and in the upcoming article, by studying and reviewing the opinions of artificial intelligence experts and lawyers, it has been compared the performance and characteristics of artificial intelligence and human directors and identified the capabilities of artificial intelligence in the position of a member of the company's board of directors. Regarding the eligibility to accept the position of directorship, it can be said that artificial intelligence, like humans, whose natural characteristics enable them to perform the actions of a representative, has the practical ability to become a director and perform duties as a representative of the company and can adjust its performance to achieve a clear goal that is the company's goal, in a way that we can say it intends. Although artificial intelligence has the practical ability to represent the company, but in order to become a director, only practical ability is not enough and there must be a legislative prescription. In this regard, it is necessary for the domestic legislators and international institutions, considering the capabilities and characteristics of artificial intelligence, to pass laws in order to identify the legal competence for it. Regarding the performance of duties and obligations of directors, due to the characteristics of artificial intelligence, including autonomy, logic, creativity and the ability to make decisions very quickly in complex and difficult situations and process a large amount of data and information, without human intervention, Artificial intelligence has the possibility to make decisions as a director and perform the tasks of directors. The authors' point of view is that with the legal design and coding of artificial intelligence, based on the established standards of company law regarding the duties of directors, artificial intelligence can fulfill the fiduciary duties of directors, away from conflicts of interest and bias, and with sufficient transparency and care. Regarding responsibility, although this technology is new and rapidly growing, most of the currently accepted principles and laws regarding responsibility are still applicable and there is no need to adopt a new approach to responsibility. However, considering the speed of artificial intelligence development, a responsibility regime must be described and implemented that does not lag behind the growth of technology and can act quickly in order to compensate for the damages. On the other hand, considering the risks that identifying any personality for AI will bring, an approach should be taken in the area of responsibility that always the developer or the company using AI as a director is accountable for the actions of artificial intelligence. It seems that a combination of legal regime and compensatory regime can solve the problem of responsibility. In the legal regime, responsibility instead of artificial intelligence and during judicial proceedings is attributed to the developer or company using AI as director, and in the compensation regime, losses are paid through compulsory insurance or a compensation fund or both. The compensatory liability regime increases the speed of compensation because the problems and slowness of the legal regime do not occur, and ensures the damages without entering into the judicial process. Finally, given the topics discussed in this article, AI has important capabilities that make it a good option to be a director. This approach is especially important for countries facing aging populations, migration of directors to more advanced countries or facing cruel sanctions from other countries. Therefore, the legislator should make the necessary regulations to allow companies and The community can benefit from the artificial intelligence as a member of the board of directors.
Private Law
ali pourrezaei; Ali Gharib; Hasan Pashazadeh
Abstract
Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company ...
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Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company or the strategic government of the company. The management of the company's affairs according to the law and after that according to the will of the shareholders, has been entrusted to this organ, and following the assumption of this duty by the director, duties and powers as well as benefits have been defined for them according to the law, which are necessary for exercising the powers of the directors.Rulemaking in the field of duties and powers of directors in various legal systems is foreseen to achieve a goal that is in line with the goal of establishing the company. In fact, the purpose of establishing a company is to bring together multiple economic players with conflicting interests in order to achieve the common goal of making profit, and since the management of this group is entrusted to directors, the management goal must be determined and be available the necessary tools to achieve this common goal to them. Determining the general duties of directors through regulation is to determine the direction and create transparency for directors.PURPOSEIn this research, the main question is what policies the legislator pursues from regulation in this subject? And how did the Iranian and English legislators act in this regard? Also, this article tries to answer the above questions by descriptive-analytical method and comparative study of Iranian and English law.METHODOLOGYIn this research, a descriptive-analytical method with a comparative view has been used; In this way, first the general duties of directors are explained in in English and Iranian law, and then, with legal reasoning methods, The goals of establishing rules related to the general duties of directors in Iranian law are analyzed and examined.FINDINGSIn English law, the legislator has assigned a role beyond that of a trustee in the field of duties of managers. Therefore, it has predicted duties for the managers in order to achieve the three goals of "preventing conflict of interest", "protecting the company's interests" and "improving the company's status or improving the company's position".The first risk that arises in the relationship between the company and the directors is the misuse of their position in controlling the financial resources of the company, including property, reserves and credit. Therefore, considering the director as a trustee in the internal relations of the company and applying the guarantee of violation executions from this position can be very effective in solving the conflict-of-interest problem. This goal is provided by foreseeing the duty of avoiding the situation of conflict of interest and disclosing the acquisition of interest. One of the shortcomings of the legislation in this field in Iranian law is the failure to require managers to disclose the acquisition of profit. Of course, Article 129 of the legal bill to amend a part of the Commercial Law of 1968 in the transactions of the director with the company, foresees such a task for the board of directors, not the beneficiary director.The purpose of protecting the interests of the company is that the directors, by exercising the necessary care and caution, avoid losses to the company and the loss of its property, financial resources and reserves. This goal is achieved through various tasks. These duties include exercising independent votes or Duty exercise independent judgment, and Duty to act within powers. In Iranian law, by accepting the fiduciary duty for managers, we must accept that the goal of protecting the interests of the company is fulfilled to some extent.In the new law of British companies (2006), the legislator sought an approach to solve the problem of companies in advancing their goals. In this regard, the task of promoting the success of the company was predicted. The task of promoting the success of the company creates requirements for the director beyond the observance of trust, the non-compliance of which creates responsibility for the manager. In other words, the fiduciary duty creates a negative obligation for the director, but the duty to promote the success of the company creates a positive obligation. Positive commitment means improving the company's current situation.It can be inferred from the general duties of managers in English law that the goal of the legislator is to deal with the stagnation of companies and to oblige directors to make changes in their affairs, but this is not inferred from the total regulations governing the laws of Iranian companies.CONCLUSIONLike the English legislator in setting the general duties of directors, the Iranian legislator must pursue the three goals of "resolving the conflict of interest", "preserving the existing interests of the company" and "promoting the position of the company". The first two goals can be achieved despite the shortcomings of the directors' fiduciary duty, but the third goal is not achieved with this duty; because the duty of fiduciary is to maintain the current situation and its promotion needs to be regulated. In English law, the achievement of this goal is pursued with the task of "promoting the success of the company", but in Iranian law, the legislator has not paid attention to policy-making in this subject.Therefore, in amending the existing regulations, attention should be paid to the policy of promoting the company's position and existing status, and rules should be made in the field of general duties of managers according to Iran's legal system.
Private Law
Majid Banaeioskoei; yosef Fazlijomir
Abstract
Formalism in law has generally been manifested in three positions that are completely different from each other. The first type of formalism is formalism in the realm of legal rule, which is used from the topics of Law philosophy and the concept of validity of legal rule based on formal criteria, regardless ...
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Formalism in law has generally been manifested in three positions that are completely different from each other. The first type of formalism is formalism in the realm of legal rule, which is used from the topics of Law philosophy and the concept of validity of legal rule based on formal criteria, regardless of its efficiency and content evaluation. In other words, the legal rule that has gone through the necessary formalities is respected, even if it is not efficient, or it has ignored the fundamentals and basic factors of law such as: economy, culture, and the like. Another type of formalism is in the realm of legal reasoning and is considered one of the topics of law logic and is used to emphasize the wording and form of expressions, even in conflict or at least, ignoring the spirit of the law. In this way, legal reasoning is actually reduced to formal logic or mathematical logic. Its function is to require the courts to understand the text of the legal article and make logical inferences from the legal article, for this reason, it is sometimes called mechanical legal theory. The third type of formalism is dedicated to the realm of legal acts. This type of formalism, which is the subject of this research, can be presented in interaction with the will of individuals, which to the concept of the requirement of certain exclusive and binding forms in legal acts and the regulation and issuance of documents, and the lack of freedom in the form of legal acts in creating, transferring and the guarantee of commercial documents is contrary to the originality of consent or even the principle of freedom of expression of will.Commercial documents in a special sense in terms of the role they have in the economic relations of individuals, especially merchants, follow certain systems and have certain characteristics. But the most basic feature of these documents is their formality. In the sense that the existence of intention and declaration in the creation, transfer, guarantee, and even payment of commercial documents although necessary, is not sufficient, but the observance and application of the form is relevant and has consequences on it. In fact, the legal form is dependent on the will and is understood in interaction with it and it is: "an external and tangible element that discovers, completes, proves, supports or directs the inner will or replaces it." which is relevant in the realm of legal actions, on this basis, if the will is assumed to mean the creation, change, transfer or cancellation of a right or legal status, the discussion of the form in legal events will not be relevant, because the form in legal events is an empirical manifestation in their sensible face. Although this form can be effective in law, this form of influence has a philosophical basis and cannot be called a legal form. Special attention and special credit to the form in commercial documents are often the initiatives of merchants and have evolved throughout history and have been approved by the legislator, jurisprudence and legal doctrine in international conventions and different countries. Contrary to other branches of private law, including contract law, and the validity of the principle of the sovereignty of the will as an indisputable principle and a symbol of the growth and maturity of private law, basically, formalism causes slowness and sometimes complexity in the contractual and economic relations of individuals, especially merchants, while, considering the philosophy of the separation of commercial documents and also the basis of creating these documents, the appreciation of formalism in this branch of private law is based on speed, ease and reliability in commercial relations. On the same basis, the idea of replacing the commercial document with a banknote as a container of money (not money itself) is one of the important reasons and foundations for the creation and use of commercial documents, which has a close relationship with the general economic order, with the explanation that money is a form of credit resulting from the power and authority of the government, which may be poured into any format, whether it is a banknote, a credit card, a check, or digital currency. Therefore, commercial documents are not based on the basis of replacing that credit essence (money), but on the basis of being recognized as a container of money and a substitute for banknotes, which is the most obvious example of a container of money. This article tried, different from the researches, to analyze the concept and ratio of formalism interaction with will and its foundations in commercial documents.
Private Law
Seyyed Hasan Hosseini Moghaddam; Setareh Ayoubi; Mehdi Taleghan Ghaffari
Abstract
Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the ...
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Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the words "I agree" or something similar. The number of consumers who use online platforms to fulfill their shopping needs has increased, and online stores have responsibilities for the intermediary role and the platform they provide for online buying and selling. From the legal point of view, two types of contractual or non-contractual responsibilities can be considered for these stores. Currently, these types of internet businesses are very popular among users, but in any case, we should look for a space to increase the security of this type of service and secure it, while taking care of and protecting consumer rights; because at present, with the very wide growth of this type of websites and online stores in different fields, we have witnessed the provision of services in the fields of sports, culture and leisure, electronic devices such as audio and visual devices, household, personal and office, real estate and land, vehicles, services and training, supplies and business, and even recruitment and employment or expression of job opportunities, etc. Since online platforms often act as "gateways to control and limit interactions in a system", the first question is whether online platforms and online stores can still be considered simply as intermediaries or should they be suppliers. The second question is whether platforms, as dominant channels in the market, may be held liable to their customers for infringements caused primarily by platform suppliers. Finally, the third question is whether there is a necessary connection between the first and second questions, namely that the platform operator may be held liable to its customers while it may not be treated as a mere intermediary, it may be treated as a supplier of goods and services provided by Platform Providers. Regarding the activity of online stores and their responsibility for their actions or others, it cannot be assumed that they are not absolutely responsible. The important issue is that in online shopping, the buyer makes a transaction that the seller has not seen closely, therefore, the necessity of such purchases, due to its nature, requires more support from the buyer. Because in such transactions, the buyer does not have detailed information about the seller of the goods, their credit, and the transaction, and the burden of the purchase risk is on the shoulders of the buyer. For this reason, as well as for the specialization of the subject and its great application and importance, in this research, an attempt will be made to examine the civil liability of online stores in the laws of Iran and the European Union. In relation to the foundations of civil responsibility of online stores, the theory of fault should be accepted as the main basis of civil responsibility in the laws of Iran and the European Union. In fact, where the providers of their Internet services and goods commit harmful acts, their liability is still based on fault. However, regarding the responsibility of internet sellers, you can also refer to other bases. The important thing about online stores is that concluding a sales contract through the internet in this category of stores should not create doubt that online stores are not subject to the general rules of civil liability. On the contrary, it should be stated that such stores are subject to general rules regarding civil liability rules; because buying or selling through online stores differs from traditional contracts in only a few specific cases; the most important of which is the method of concluding a contract. In other words, except for a few minor cases, in other cases, buying from an online store is not much different from buying from a real store; therefore, in relation to the civil liability of online stores, two types of liability can be realized, contractual and non-contractual liability. This type of separation in civil liability has been accepted both in the civil law of Iran and in the civil law of the European Union. On the other hand, in order to realize the civil liability of online stores in two areas of contractual and non-contractual liability, certain conditions are necessary. So in the field of contractual liability, the existence of a valid contract, breach of contract, and the existence of damage caused by the breach of contract are necessary, and in the field of non-contractual liability of the online store, the occurrence of loss, harmful action and the relationship of causation is necessary. It is suggested that cyberspace and internet stores are very suitable for millions of jobs. On the other hand, the Internet is a useful tool for marketing various services. In this regard, the creation of up-to-date and applicable laws as well as the amendment of existing laws are more important than ever. For this reason, it is suggested that, especially in Iranian law, laws in the field of online stores should be formulated in a specific way, and in these laws, the civil liability of this type of store should be determined clearly, inspired by the principles of civil responsibility and not limited to accepting one of the opinions and principles. Laws that, in addition to preventing the occurrence of computer crimes, should provide the opportunity for legal internet businesses to operate and grow, and this means that the laws are fair. In addition to the definition of platforms, the law that is developed for this purpose should include the providers and users of the internet platform for the purpose of electronic commerce, the law that is formulated for this purpose must state the criteria and criteria accepted in the legal analysis, of course, a mechanism for the purpose of floating the bon and the ability to generalize the criteria. Claims between parties (both platform, supplier, and user) should be considered. Also, the cases where the rules related to transactions do not respond to the new needs are written and govern the relations of the parties.
Private Law
Issa Moghadam
Abstract
Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the ...
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Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the progress of society, supporting competition through the adoption of effective regulation is one of the duties of governments. Supporting competition through legislation is done in different ways, one of which is the introduction of anti-competitive behavior. In relation to simultaneous employment in competing companies, the main question that arises is whether this behavior is anti-competitive or not? And on the assumption of contradiction, is this contradiction enough to require prohibition by the legislator. Although the role of simultaneous employment in competing companies for commercial and industrial progress cannot be completely denied, there is no doubt that it increases the possibility of information exchange and collusion between competing companies in various fields such as product pricing and as a result, it causes the competition between these companies to be reduced or eliminated. Therefore, it has been recognized and prohibited as anti-competitive behavior in the laws of Iran and the United States of America. In addition to the main question above, several secondary questions are also raised in this context, which are: Should the ban be applied to all companies or some of them, which is more important? Should the prohibition only apply to directors and officers of the company or all employees? Should this be absolutely prohibited or only if it disrupts competition? What is the criteria for considering two companies as competitors? The basic principle in relationto determining the scope of prohibition of simultaneous employment is that the prohibition should be established as much as necessary and have a minimal aspect. Regarding this issue, regardless of some similarities, there are important differences between the two countries, some of the differences are due to the different approaches of the two countries to fight it and it is normal, but in Iran's regulations, on the one hand, the domain of agencies and individuals who are subject to the act , it is expanded in an unusual way, and on the other hand, the criteria provided for the conditions of competition realization and the concept of competing companies are not very precise, which makes it less effective. In addition to the point of competition, this issue can also be investigated from the point of view of the legal relationship of a person with the company in which he is employed. Because when a person is employed in a company, certain duties and obligations are created for him in order to strive for the success of the company and refrain from doing contrary behaviors, and the question is whether working at the same time in a rival company is contrary to these obligations? There is a possibility that in the employment contract, a person is prohibited from competing with the employer, in which case she will adhere to the condition, but if such a condition is not included, the matter needs to be investigated. There is no regulation in this regard in the studied countries. In American law, according to the rules of common law, this is contrary to the fiduciary relationship of a person with the company, as well as contrary to his duty of loyalty to it, and is prohibited. It should also be considered prohibited in Iranian law, because employment in a rival company can lead to behavior contrary to the interests of the first company. It is important to point out that there is a difference between the two mentioned states. Prohibition of simultaneous employment in competing companies due to its anti-competitiveness is intended to protect the community and is related to public order and has an imperative aspect and cannot be agreed upon. While it is prohibited from the point of view of conflicting with the relationship between the person and the company, it is to protect the rights of the company and is not related to public order, and an agreement against it is possible. Because this may have positive effects in some cases, such as when two companies cooperate in some fields.
Private Law
seyyed mohammad bojnourdi; Behnoush Falahatpisheh
Abstract
In the basics of contract law, the principle is that the parties to the contract are required to fulfill their obligations and any change or withdrawal from the contract requires the agreement of the parties or the existence of one of the legal termination cases. Despite the fact that contracts are binding ...
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In the basics of contract law, the principle is that the parties to the contract are required to fulfill their obligations and any change or withdrawal from the contract requires the agreement of the parties or the existence of one of the legal termination cases. Despite the fact that contracts are binding in some cases, the obligee may have the right to terminate the contract without the obligee's agreement, in order to avoid undue damages caused by the obligee's breach of contract. This right is called the right of initial termination of the contract. The right of early termination of the contract is a right that exists for the obligor without the prior obligation of the obligee to perform the obligation and obligate it to perform the same contract. This right is of special importance for the obligee because it gives him the right to waive his contract and release his contractual responsibilities if necessary. Iran's civil law is silent on the issue of termination for breach of contract, and according to Imami jurisprudence, the principle is that the right to terminate the contract is given to the obligee only with the agreement of the parties or the existence of one of the legal cases of termination. However, some jurisprudents, in certain cases, have believed in granting the right to early termination of the contract to the obligee, including the cases where the termination is justified, the following can be mentioned: if the obligee fulfills his obligation in a way to put the obligee at risk or if the obligee has a long-term delay in fulfilling his obligation. Among the jurists of Imamiyyah, there is no unanimous ruling on the execution of obligations or having the right to terminate, and in Iranian law, granting the right to early termination of the contract to the obligor, in order to protect his rights and interests and to reduce the amount of damage and to have proof of the negation of the damage is on the principle of necessity. It can be proved in some ways. For example, if the concluded contract contradicts the laws and regulations of the country, the obligee can have the right to terminate the contract early. According to international documents such as the Convention on the International Sale of Goods, the principles of the law of international commercial contracts, as well as the principles of the law of European contracts, the right of initial termination is accepted in the event of a fundamental breach of the main obligations. In the common legal system, the right to terminate the performance guarantee is a breach of contractual obligations, and the right to early termination of the contract to the obligee may be less seen due to the limitations that exist in these systems. In this system, due to the existence of strict laws in the case of keeping contractual obligations and adhering to them, the right of early termination of the contract to the obligee is less than in Imami jurisprudence and Iranian law. In the Roman-Germanic legal system, the right of early termination of the contract to the obligee depends on the terms of the contract and legal laws. The country may be restricted. In this legal system, more attention is paid to maintaining contractual obligations and communication with the obligee, and for this reason, the obligee's right to early termination of the contract is less than Imami jurisprudence and Iranian law. Paying attention to the comparative study of the feasibility of granting the right to early termination of the contract to the obligor, in Imami jurisprudence and Iranian law and common law and Roman-Germanic legal systems, it can be concluded that in these systems, the right of early termination of the contract to the obligee depending on the conditions of the contract and the legal laws of the country, they may have a more limited scope of implementation. In this research, the right of initial termination of the contract in Imami jurisprudence and Iranian law is compared to the common law and Roman-German legal systems with a case study of the laws of England as a subordinate country. The legal system of common law and France and Germany, two countries subject to the Roman-German legal system, have been comparatively examined. In English law, the right of initial termination is accepted in case of violation of obligations or the main conditions, and in French law, initial termination is also accepted in cases of violation. A serious obligation is subject to the obligee's notice, warning, and the expiration of the additional period. In German law, the exercise of the right of initial termination for the obligee is subject to the passage of time. A group has considered that the obligee is entitled to force the obligee to perform just by breaching the contract, which is the famous opinion of Imamiyyah jurists. Another group has preferred the right of rescission over coercion, and another group of jurists, like Imam Khomeini (may God bless him and grant him peace), have considered the obligee as benevolent in the acts of rescission or coercion, believing that the right of rescission and the right of coercion are the same. Various approaches have been adopted in Iran's laws, although the judicial procedure in this field is quite clear and gives priority to enforcement over termination of the contract.
Private Law
Fereidoon Nahreini
Abstract
Undoing each obligation, whether it is legal or contractual, is harmful, and the obligator is bound to compensate the loss by way of payment for damage. Delay in payment of monetary obligations is not out of this rule. The main question is, what date is the beginning of the calculation of late payment ...
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Undoing each obligation, whether it is legal or contractual, is harmful, and the obligator is bound to compensate the loss by way of payment for damage. Delay in payment of monetary obligations is not out of this rule. The main question is, what date is the beginning of the calculation of late payment damages subject to Article 522 of the Civil Procedure Code? Date of main debt demand or date of the due date or date of bringing an action? Is there a way to compensate for damages or is it used to compensate for the decrease in the value of the banknote in monetary obligations? The result of this research is that the debt demand date for a monetary debt that has a due date, cannot be a criterion for starting the calculation of late payment damage, but the mentioned date (demand) is only for measuring the debtor’s financial ability. Because the debt demand time is used where the date of fulfillment of the obligation is not known or the object of obligation is one of the obligations on demand. Also, this article is not for paying damages, but only is a method to obtain compensation for the decrease in the value of the banknote in monetary debts.
Private Law
Mohammad Ali Hosseini; Ali Rezaee; Sirous Heidari; Hojjat Mobayen
Abstract
Abstract: Articles 454 and 455 of the Civil Code are ambiguous in terms of the examples of the "right of rescission", the examples of "the implied condition of prohibition of the customer in the assignment" and the meaning of the word "void"; however, the supreme court decision as a unified judicial ...
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Abstract: Articles 454 and 455 of the Civil Code are ambiguous in terms of the examples of the "right of rescission", the examples of "the implied condition of prohibition of the customer in the assignment" and the meaning of the word "void"; however, the supreme court decision as a unified judicial precedent No. 810 dated 24/06/2021is also vague and outside the scope of the lawsuits. A court has described the option of violation of the payment of installments and the delivery of the goods upon rescission as an implicit prohibition of the customer's assignment, and has ruled on the invalidity of the possessions and eviction. But in similar lawsuits, another court, from the terms of the same contract, did not describe such a concept, and with a different interpretation of the law, ruled against the seller. The supreme court emphasized the intent of the contracting parties in the case of the right to rescind the contract and return of goods sold, by commenting on an implicit matter, and did not comment on the legal status of the possession of the seller, and believes that the owner's right of priority does not invalidate the condition and the right of rescission against the return of the goods. While, according to the opinion of the majority of late and contemporary jurisprudents, deduced from Articles 454 and 455 of the Civil Code, the customer's right of assignment in the contractual right of rescission is dependent null. Thus, since the implicit matter of the return of goods sold and the request for eviction is based on the request for the cancellation of the assignment, the decision of the court is logically voidable.
Private Law
Mahmoud Kazemi; Hasan Ansari CHeshmeh fard
Abstract
The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application ...
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The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application in the law have limited the space for the effectiveness of Mudarabah. It seems that this dispute can be resolved in the context of the modern legal system and with the presence of the school of positivism, which has an emerging role in the subject laws, along with the generality of Muslim jurisprudence. In fact, the result of the interaction of the two schools is the reason for the implicit establishment of sovereignty that positivism refers to in the heart of the laws. This research reveals that the meeting place and the creation of disagreement in the discussion of guarantee conditions in Mudarabah, in line with the rules of the school of positivism, can be resolved by maintaining the ideals of legal and jurisprudential justice and economic efficiency. Therefore, the application of the law in attaching a new contract to Mudarabah is not necessary, and it is possible to explain the investment with the condition that the investor does not guarantee the damage to the capital in the form of identifying a new contract.
Private Law
Nahid Safari
Abstract
Vegetative State is a type of brain damage that despite the death of the brain hemispheres, the brain stem continues to work. In this situation, the patient has no mental and cognitive function and is not able to consciously communicate with the environment. Due to the lack of relevant laws in this area ...
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Vegetative State is a type of brain damage that despite the death of the brain hemispheres, the brain stem continues to work. In this situation, the patient has no mental and cognitive function and is not able to consciously communicate with the environment. Due to the lack of relevant laws in this area in most legal systems, the legal aspects of this situation have not been adequately explained. The issue of the life or death of these patients is one of the important issues for explaining the legal status of patients in a vegetative state. In this study, according to the religious and jurisprudential concept of death according to the sanctity of the right to life and with the similarity with the regulations governing the incapacity, the view of being alive has been accepted and according to this view and with a comparative approach, the legal effects of vegetative state has been analyzed. The selection of a guardian and trustee and the transfer of financial affairs to them, the possibility of seeking divorce due to circumstances created by the spouse in a vegetative state, and the termination of personal contracts are the most important legal effects that have been accepted in this study
Private Law
Ebrahim Shoarian Sattari; Mehrdad Etemad Gharamaleki
Abstract
One of the most pivotal and practical subjects of contract law is whether one may dispose of his or her contractual obligations through the issuance of negotiable documents. This article focuses on the issuance of such instruments as a cheque in the performance of monetary obligations when the issuance ...
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One of the most pivotal and practical subjects of contract law is whether one may dispose of his or her contractual obligations through the issuance of negotiable documents. This article focuses on the issuance of such instruments as a cheque in the performance of monetary obligations when the issuance is dishonored. In fact, the question is whether the issuance and delivery of such instruments convert a civil law obligation into an obligation arising from the issuance of negotiable instruments or whether it is possible to rely upon the original obligation with all its guarantees and consequences. The statutes are silent on the matter. Scholars and jurisprudence are divided. This article comparatively examines various legal systems and international instruments like UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law, and by relying on the general principles enshrined in Article 3 of the Code of Civil Procedure, concludes that the better approach is the one that subscribes to the survival of the original obligations. It is hoped that this comparative study can set a model for our future legislative initiatives.
Private Law
Javad Kashani; Jafar Damanpak
Abstract
For decades, companies involved in the petroleum industry are committed to complying with International Petroleum Industry Practices (IPIP) or similar terms in performing most of their obligations and operations. This paper examines the consequences of a breach of IPIP in light of reviewing dispute resolution ...
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For decades, companies involved in the petroleum industry are committed to complying with International Petroleum Industry Practices (IPIP) or similar terms in performing most of their obligations and operations. This paper examines the consequences of a breach of IPIP in light of reviewing dispute resolution methods in different regimes governing the upstream sector. Reviewing disputes and lawsuits related to the breach of IPIP suggests the different enforcement methods under the various regimes of operation in the upstream sector. With regard to the Iranian petroleum industry, using the results of this comparative study, it was shown that due to the contractual regime used in the relations between the National Iranian Oil Company (NIOC) and International Oil Companies (IOCs) involved in the development of the Iranian upstream sector, any dispute over IPIP as part of contractual terms will cause new risks by triggering the arbitration mechanism. It was also suggested that the preparation of IPIP in the form of precise documents and their periodical update by relevant authorities, including the Ministry of Petroleum, may reduce disputes between the contracting parties (NIOC and IOCs) and determine the latter’s scope of authorities related to selection and application of IPIP.
Private Law
Jafar Shahand; Ebrahim TaghiZadeh; Abolghasem Naghibi
Abstract
Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation ...
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Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation considering the pure obedience of the legislator in enacting Articles 301 to 327 of the civil law, accepting the well-known opinion of the jurists in a general or general manner, this extremist view has been seriously criticized by the commentators of the civil law. And basically, the application of the rules of usurpation to non-aggression, in which the basis of possession and domination is based on ignorance of truth and error and lack of malice, is in clear opposition to the principles and rules of justice and fairness and the requirement of the principle innocence. Therefore, in this article an attempt has been made with the help of scattered jurisprudential and legal opinions and related legal materials in order to modify the popular opinion and explain the responsibility of non-aggressors based on the use of other sources of coercive guarantee take a step.
