Scientific Research
family low
ahmad yosefzadeh
Abstract
Establishing justice in contracts has always been the subject of many challenges, most notably the differences in explaining the concept of justice as well as the various ways in which it is implemented, including distributive and corrective justice. Accordingly, the main challenge of this research is ...
Read More
Establishing justice in contracts has always been the subject of many challenges, most notably the differences in explaining the concept of justice as well as the various ways in which it is implemented, including distributive and corrective justice. Accordingly, the main challenge of this research is to examine the concept of corrective justice and its place in the field of contract law and to examine some of its important instances in common law Iranian law. At the end of this article, it will be clear that reform justice is nowadays applied in the field of contract law in the assumption that the benefit of one contract equals the loss of the other party and that the correction of wrongful conduct in the performance of contracts is the result. This face of justice is in many ways, including disgorgement, expectation interest, contra proferentem in current contract law.Keywords: reciprocal justice, distributive justice, disgorgement, expectation interest, contra proferentem.
Scientific Research
family low
Zahra Montazeri; Elham Farzad
Abstract
Contractual agreements are one of the most important tools in regulating the legal relations of societies. Faithfulness to one's vow is considered a requirement of religion and the most basic pillar of Islamic theory, which is considered objectionable in legal systems. Therefore, the obligation determined ...
Read More
Contractual agreements are one of the most important tools in regulating the legal relations of societies. Faithfulness to one's vow is considered a requirement of religion and the most basic pillar of Islamic theory, which is considered objectionable in legal systems. Therefore, the obligation determined as a result of non-fulfillment of the obligation in the contract is valid for compensation based on articles 230 of the Civil Code and 515 of the Civil Procedure Code. Due to the lack of transparency and also according to Article 522 of the Civil Procedure Law, which considers the damages for late payment exclusively in monetary obligations according to the index rate of the Central Bank, the issue of the obligation of nearly forty years has become one of the unsolvable dilemmas in jurisprudence and legal opinions to stay. The matter was complicated when the specified obligation was stipulated in the monetary debt with an exorbitant amount. There were many doubts about the usury of this issue and it became a concern of the legal community until the jurists, considering the principle of justice and fairness and protecting weak debtors against strong creditors, decided on it like the banks. The Supreme Court of Iran, dated 10/16/2019, should be approved as a turning point for all disputes and doubts in order to clarify the matter. The achievement of this research was to examine the high step taken by the Supreme Court in solving this challenge.
Scientific Research
family low
Mohammad esmaeil Aghel poor; Alireza shamshiri; Bakhtiar Abbasloo
Abstract
This descriptive analysis study examines the basis of civil liability for environmental damage in Iranian and European Union law, and assesses opinions and international court proceedings in intergovernmental litigation based on the principle of harmless use of land. One of the main achievements of the ...
Read More
This descriptive analysis study examines the basis of civil liability for environmental damage in Iranian and European Union law, and assesses opinions and international court proceedings in intergovernmental litigation based on the principle of harmless use of land. One of the main achievements of the new legislation at the global level is that it has changed the basis of civil liability in this area, which in principle was subject to strict liability. Iranian law utilizes the principle of Article 50 of the Constitution and recognizes strict liability for environmental damage as an appropriate principle. Based on the guidelines approved by the European Union, it can be said that conventional civil liability law is inefficient in this direction. Only private rights and property are checked and protected, public rights are ignored. Research findings from the Advisory Opinions and international judicial precedents show that until 1997, the International Court of Justice maintained the traditional policy of prioritizing the absolute sovereignty of States in its Advisory Opinions. Moreover, even when confronted with problems of international environmental law, they are reluctant to respond, and it can be said that they have lost their sovereignty and authority in international environmental lawsuits.
Scientific Research
family low
Abbas Mirshekari; Jamshid Zargari
Abstract
The issue of eliminating the effects of usurpation in properties, beyond the past, has turned into a battleground between the principle of property respect and the institution of equity. While the aforementioned principle seeks maximum protection of the rights of the rightful owner and the disciplining ...
Read More
The issue of eliminating the effects of usurpation in properties, beyond the past, has turned into a battleground between the principle of property respect and the institution of equity. While the aforementioned principle seeks maximum protection of the rights of the rightful owner and the disciplining of the usurper, even with good intentions, through the establishment of strict judgments and traditional regulations regarding the institution of usurpation in Iranian civil law, the institution of equity aims to prevent misuse of rights by the owner and the imposition of significant harm on the usurper with goodwill, striving to moderate traditional and strict interpretations. Although initially the institution of equity was manifested in the form of legal texts on civil liability, the turning point in fair efforts comes with the approval of the "Legal Bill on the Removal of Encroachment and Compensation for Damages to Properties, passed in 1358" by the Council of Revolution. In this research, using descriptive and analytical methods and utilizing library resources and judicial procedures, we have sought to examine the quality of mitigating the effects of usurpation in non-past properties, considering the principles of property respect and the institution of equity in the legal system of Iran. It has been observed that, under certain conditions, there are legal capacities for issuing fair judgments that can secure the interests of both the owner and the usurper with goodwill in Iranian law.
Scientific Research
family low
Elahe Ramezani; Heydar Amirpour; Seyyed mohammad Sadri; Mohammadsadegh Jamshidirad
Abstract
Regarding the impact of external factors on the fate of the contract, depending on its characteristics, there are different views. Some of them consider it as an excuse and believe that the contract is null and void, and a group of people have proposed rescission through the dissolution of the contract ...
Read More
Regarding the impact of external factors on the fate of the contract, depending on its characteristics, there are different views. Some of them consider it as an excuse and believe that the contract is null and void, and a group of people have proposed rescission through the dissolution of the contract due to coercion in order to prevent losses. Some also consider the right of termination to be efficient by emphasizing the combination between the need to prevent loss and maintaining the principle of necessity. Considering that pandemic in the concept of epidemic caused by infectious diseases has characteristics; Contingency, unpredictability and inevitability make it impossible to fulfill the contractual obligations in general or sometimes temporarily, not always. Pandemic is a synonym of the word Jaeha which means heavenly calamity, as a result of which, the purpose and purpose of the contract becomes impossible. In this article, an attempt has been made to analyze the issues related to it in terms of its impact on the dissolution of the contract from a jurisprudential and legal point of view by means of a descriptive-analytical study through the collection of information in a library manner and by using a comparative approach, along with the concept of pandemic.
Scientific Research
family low
Farnaz Raeeskazemi
Abstract
Diplomatic immunity is a type of legal immunity according to which political agents and envoys of states will not be prosecuted. In otherwords, two countries are committed to each other not to prosecute each other's diplomats and senior government officials. Karamba was a Zimbabwean diplomat in the United ...
Read More
Diplomatic immunity is a type of legal immunity according to which political agents and envoys of states will not be prosecuted. In otherwords, two countries are committed to each other not to prosecute each other's diplomats and senior government officials. Karamba was a Zimbabwean diplomat in the United States who was accused of beating or torturing his son violently. But he was not punished due to his immunity. This article aims to examine the problems of diplomatic and consular representatives abuse and their impunity, and especially the need to compensate the victims. which has plagued human societies today. Article 32 of the 1961 Vienna Convention provides only one exception for prosecuting diplomats, which is related to waiver of immunity. What is the solution to assert the rights of the victims of widespread crimes committed by diplomats and prevent them from abusing their diplomatic immunity to escape punishment and pay damages to these victims? This research tries to answer this question with a descriptive-analytical method. In addition to explain the Karamba case, the purpose of this article is to provide solutions to prevent diplomats with immunity to commit crimes. The results of this research is to show that paying attention to the effective factors about of immunity abuse is an effective way to prevent and deal with such violations.
Scientific Research
Hojat Azizollahi
Abstract
Because sometimes the judicial process requires that one of the parties to the lawsuit deposit money under various headings such as bail, security deposit, etc. to the justice fund. During the trial, it is envisaged that these properties will be shown. The nature of these funds is trust and they are ...
Read More
Because sometimes the judicial process requires that one of the parties to the lawsuit deposit money under various headings such as bail, security deposit, etc. to the justice fund. During the trial, it is envisaged that these properties will be shown. The nature of these funds is trust and they are placed at the disposal of the judiciary as a deposit. Therefore, depositing them is defensible; because, firstly, it is in the direction of maintaining the conventional and respecting the interests of the original owners of these funds, which Article 612 of the Civil Code deems to be the trustee's duty, and secondly, according to Article 617, it prevents the trustee from taking possession of these funds; But according to Article 623, the interests of these funds are owned by their original owners. Therefore, it is necessary that when these funds are returned, their profits should also be returned to the owners. This is while this does not happen in practice, rather, some needs and necessities of the judicial system are solved from the profit of these funds. Therefore, the present research with a descriptive-analytical method aims to investigate the fate of the exhibits obtained from trust funds with the judiciary and to explain their ownership, but finally, according to Sharia standards and the principles of public and private law, no means were found for the legitimacy of the judiciary's seizure of these properties. But because on the one hand, t
Scientific Research
family low
Mostafa Shahbazi; Mahdi Sajadikia
Abstract
Transverse theory of performance guarantee as a famous theory based on reasoning and logic along with the longitudinal theory of performance guarantee has been accepted by some legal systems and international documents that the right to terminate the contract arises with the possibility of coercion of ...
Read More
Transverse theory of performance guarantee as a famous theory based on reasoning and logic along with the longitudinal theory of performance guarantee has been accepted by some legal systems and international documents that the right to terminate the contract arises with the possibility of coercion of the obligee and the basis of its occurrence is It can be any violation or breach of contractual obligations by the obligor. In other words, the violation of the obligation is considered in the general sense, and the refusal to fulfill the obligation in the general sense (i.e. refusal in any form) can also be considered a violation, which creates the right of termination for the obligor. According to the opinions and evidence of some jurists, refusing to fulfill the obligation even in the case of imprisonment of the transaction as a pledge can cause the termination of the contract. This research has been done by library method and descriptive-analytical method by explaining the transverse theory of guarantee of execution in different legal systems, international documents and legal doctrine and analyzing and criticizing the influence of the right of arrest inferred from Article 377. The law examines and studies the existence of performance guarantee in the transverse theory.
Scientific Research
Mohammadmahdi Azizollahi; Seyyed Mahdi Dadmarzi; Ali Javadieh
Abstract
The civil law refers to the existence of a lease contract. Studying among the sayings of jurists and jurists also indicates that the rental contract is a matter of chance. Nevertheless, it seems that there are examples of rent that were created in a way other than the form of a contract. In this article, ...
Read More
The civil law refers to the existence of a lease contract. Studying among the sayings of jurists and jurists also indicates that the rental contract is a matter of chance. Nevertheless, it seems that there are examples of rent that were created in a way other than the form of a contract. In this article, two examples of non-contractual rent were examined; Morbid rent (the subject of Articles 501 and 515 of the Civil Code) and compulsory (legal) rent. The investigations conducted showed the result that Moradat rent is a rent that is created through Iqaa with the right to reject and accept. Compulsory rent is also an example where the will of the individuals is not involved in its creation and it is created by the decree of the legislator. Therefore, it is included under legal events.Such an understanding requires that the existence of a lease contract is not considered an integral part of its essence. Although there is an obvious view that considers renting unthinkable outside of the contract; However, it seems that the nature and essence of the lease is nothing but "acquiring a benefit against a certain exchange" and it is not an internal contract in its essence. Therefore, it can be considered that the forms that create legal natures are methodical rather than objective. In other words, formats such as contract, contract, contract with the right to reject and accept, etc., are tools to create legal nature, not the legal nature itself.
Scientific Research
Majid Ghamami; Sayyed Mohammad Ayati Najaf Abadi; Mahmoud Bagheri
Abstract
Legitimate expectations is a concept or doctrine that is usually invoked by investors inlawsuits against the host state in courts and arbitration tribunals for breach of commitments(by the host state of capital)thathave disrupted their investments;although these claims are not essentially based on explicit ...
Read More
Legitimate expectations is a concept or doctrine that is usually invoked by investors inlawsuits against the host state in courts and arbitration tribunals for breach of commitments(by the host state of capital)thathave disrupted their investments;although these claims are not essentially based on explicit written agreements.What the concept of legitimate expectations entails is not very clear, and arbitration tribunals also differ in their practice due to the fluidity of the concept.It should be said that legitimate expectations have been mainly used as a component (or one of the essential elements)of the standard of fair and equitable treatment(FET)although some have argued that it may have become an independent doctrine or possibly a general principle of international law.The inclusion of this concept in the national or constitutional law of countries has certainly provided more protection and guarantee for investors,which is often to the detriment of the host countries of capital.Specifically,host developing countries have done and continue to do so.These countries sometimes found themselves in conflict with the extensive expectations of investors that they did not expect.Despite this, the legal basis for the application of this concept in international law has not been examined accurately.This research examines the concept of legitimate expectations and its meaning and content, its legal and legal basis in international investment law,the disadvantages it has for host states,how to limit the application(and potential impact)of this concept by host states and examines the possibility of creating legal and legitimate expectations required from investors in favour of host countries and their citizens.
Scientific Research
Ali Abbas Hayati; Mehdi Hadi; Shokoofe Bahrami
Abstract
Some appellate courts describe the ruling issued by the lower court as a decision and return the decision to the lower court for re-examination after the violation. Courts that apply such a procedure justify their actions for various reasons. By applying the applied research method and using library ...
Read More
Some appellate courts describe the ruling issued by the lower court as a decision and return the decision to the lower court for re-examination after the violation. Courts that apply such a procedure justify their actions for various reasons. By applying the applied research method and using library data, the authors are trying to find the answer to these questions. And can such an act help to achieve justice as an inherent duty of the judiciary? In my opinion, apart from the fact that none of these reasons can be a license for the possibility of describing the first sentence as an order by the appeals court, this practice is contrary to the philosophy and characteristics of the civil procedure and the rule of voiding proceedings, and on the other hand, the appeals court is granted extra-legal powers. It seems that one of them is the placement of the Court of Appeal in the position of the Supreme Court and also considering the authority as the rule-maker. Also, this practice by creating a round of continuity in the proceedings can cause the delay of the proceedings. Helping justice can cause many problems and such a procedure should be avoided.
Scientific Research
family low
Majid Aziziyani
Abstract
In this article, according to the principle of freedom of will and support for the agreement of the parties, a comparative analysis of the liquidated damages clause on the mitigation of damages has been done. Analysis the mitigation in Iranian law shows that enforcing the rule, contrary to the US legal ...
Read More
In this article, according to the principle of freedom of will and support for the agreement of the parties, a comparative analysis of the liquidated damages clause on the mitigation of damages has been done. Analysis the mitigation in Iranian law shows that enforcing the rule, contrary to the US legal system, is not explicitly accepted in the realm of contracts. On the other hand, according to the principle of freedom and sovereignty of the will, the parties can determine and condition the damages resulting from non-fulfillment of the obligation on a lump sum basis together. Because the plaintiff will receive the agreed amount without the need to prove the amount of damages.. According to which the injured party is obliged to take any normal action to mitigate, the damages and prevent the spread or entry the loss. Otherwise, he will not be entitled to claim all damages. inIrananian and American law, it is possible for a judge to adjust the liquidated damages clause. So mitigation is different between them. It does not interfere with normal behavior. One of the important rules of compensation is the rule of mitigation
)
