"Good morals" and "public order" should be regarded as the source of the rule of law and legal propositions so that they have not only a negative role, but also have a positive function. These two sources like other sources are affected by the basis of rules validity in legal system as far as pluralism in legal basis results in different types of "good morals" and "public order". Defining the type of hierarchical relationship between "public order" and "Good morals" also depend on the type of hierarchical relationship in the foundations of legal rules validity; so that we can say in Iranian legal system, "religious good morals" and "religious public order" have credit priority. The difference between "Good morals" and "public order" is not a kind of substantive one, but also is phasic. "Public order" is statutory and legal propositions derived from "good morals" are non- statutory. In other words, "Good morals" is a reminiscent of the duality of rights and the law.
A holistic view of classical international law presents an image of a collection of scattered consensual rules, where coordination as a cohesive and integrated whole is not necessarily observed among these rules. Such a collection cannot benefit from a normative order that includes a hierarchy of rules and guarantees fundamental rights. Nevertheless, later legal scholars have described international law as a "system" of law. This research, employing a descriptive method, seeks to validate this claim and demonstrates that, firstly, the prevalent objectivism in all components of international law, alongside the multitude of active and passive interest-driven actors in the international community, seemingly hinders the acceptance of a structural system; secondly, newer approaches inevitably embrace subjective values, resulting in a goal-oriented convergence within the international community. The outcome of this thesis and its antithesis is that international law is still evolving, and a normative reading utilizing existing capacities enhances its structuring.
Iranian legal system has been established based on Imami Jurisprudence and its main sanction against violating the established rules on validity of contract is nullity. Moreover, there are other concepts such as relative nullity or null amendable in law, but not as a general rule of law. While Afghanistan's legal system, in addition to rules of null and ineffective sanctions, recognized and confirmed another general rule based on the Hanafi jurisprudence as "Fasîd" (Vitiation) that causes the Nullity in this legal system to have grades, and in cases whereby the contract is amenable, its nullification is prevented and the contractual relationship of parties continues. Such concept could also enter the Iranian legal system, not with all its consequences, however, as a rule and replacement to concepts of the specific.
Yazdanian, A.R., Mahdavi, S.M.H., Abbasian, R., Mosallanezhad, N.
Publication Date: 2016/03/20
مطالعات حقوق تطبیقی (1735496X)(1)pp. 367-383
An action resulting from an object like human's damaging action can cause liability for those who possess them. The French civil law at its approval time (1804) had not predicted this principle and just in Articles 1385, 1386, the liability of damages resulting from two types of objects, i.e. animals and buildings due to imposing great damages by them had been predicted by French law. However, by the late nineteen century, the general principle of liability resulting from the objects was included in the liability realm based on an interpretation from the Paragraph 1 of the Article 1384 of the French Civil Law. In the Iranian law, the Articles 333, 334 of the Civil Law and also the Articles from the Law of Islamic Punishment like 511, 512, 514, 515, 518, 522, 528 and 534 and article 1 of the law on compulsory insurance of civil liability of owners of motor vehicles against third-party land have dealt with the identification of this liability without dealing with the rules related to the object realms in creation of the mentioned liability. This article intends to review these rules through a comparative study. The main objective of this paper is to state that in considering object responsibility, there lies no difference whether the object is animate or inanimate, hazardous or non- hazardous, movable or immovable and static or dynamic through a comparative study. Even it is not necessary for the object to be directed or managed by a person. In case of existing any elements of civil liability, the damaging action of object can pose responsibility on its possessors.
Law is essentially a social phenomenon and, therefore, in full association with other social sciences. To understand a legal rule must be interpreted and for interpretation we have to argue about that. Therefore, there are a strong relationship between reasoning, interpretation and law. Furthermore, the three categories of base, source and purpose of the legal statement are considered as the contributors to each legal system. The purpose of this study is to explore influence of ideology on different interpretations of same legal rule. We discuss problem, social justice and fairness in law, the origins of different sometimes conflicting rules in the same subjects. This can damage the realization of the order as one of the goals of the legal system. This phenomenon is explained as pluralism of legal argument, which is shaped by various factors including ideology as the most notable. The mutual relation between law and ideology in legal pluralism is controversial. It can be concluded that depending on what the ideology governing the mind of a legal practitioner is, his kind of argument in the interpretation of the legal rules will be equally different.
This legal analysis shows that despite of lawyers’ wanted or unwanted overlook, condition in initiative could not be and has not been set aside from the legal relations of the people in the society, and the legislature assist to it by counting it originally as valid. By the condition in initiative in this research analysis, we mean the condition in offer, condition in acceptance or condition in both. There are many obvious and hidden usages for condition in initiative in social relations, particularly in the contractual and trade relations; although it is not naturally allocated to the commercial law. For instance, in concluding composition agreement with the bankrupt businessperson charged with the fraudulent bankruptcy, in subscribing the stocks, opening an account and ratifications of the statutory general assembly for the public joint stock company in process of formation, in the arbitration agreement, and in the undertaking in benefit of the third person, we can benefit from these establishment or at present it is used. Besides, possibly many legal actions which are being made disputably at present, with using the condition in initiative can be accomplished more efficiently and indisputably. Applying condition in initiative provides a more ingenious mechanism for reaching the contracts aims easier, reaching multistage aims and avoiding leaving the probable problems of implementation to the time after conclusion.
Although bringing in the third party was in Civil Procedure Act of Iran for about 100 years, but rarely its points have been noticed. Despite presence of some kind of dependence between main and ancillary litigation at all ancillary litigations, such dependence is much more apparent in three litigations of third party entrance. It can be said that the dependence is bringing in the third party. In other words, bringing in the third party is follower litigation. This obedience is observed not only in required number of plaints for bringing in the third party, but also in court’s jurisdiction. In a way that independent hearing of a litigation which is in real bringing of the third party would be impossible in any instance of the trial.
Legal analysis to causes and commands of resort to court for election of joint stock companies’ temporary inspector or comparative explorative analysis of the legal questions on companies’ temporary inspection had not so far been approached by the specialists perhaps because of its extraordinary scientific complexity. This research shows that there are many differences between the law governing the directors’ board members and the executive manager on one side and the law governing the inspectors on the other side. Besides, there are considerable differences between the laws governing the main and temporary inspectors. These differences show that for the Legislature the inspection is more sensitive than management and considering the appointment of the temporary inspector by the court is a reason as well a consequence of this sensitivity. Seeing a company for a few months does not have a board of directors or an executive manager is comparatively easier tolerable for the Legislature than seeing it without having an inspector or sufficient number of inspectors. As well, decisions and operations of disqualified directors’ board’s members and disqualified executive managers are tolerable for the Legislature, whereas the reports of a disqualified inspector are never acceptable.
Always there has been this question in the minds of experts that whether the partnership securities (ouräghe moshärekat) have been able to substitute debentures in the market properly? Present legal analysis shows that partnership securities as a substitution for debentures are needed for the market. But despite fundamental differences between stocks and debentures, partnership securities are a compound of stocks and debentures. They have both the advantages of stocks and debentures without getting suffered from disadvantages of each of them. In addition, legal questions on management of the subject project of these securities as well as responsibility out of these securities for its holder has not been considered by the legislature. The mechanism considered for partnership securities although approved from the Islamic jurisprudential (fiqhi) view contains faults from the legal economy view. Therefore, such securities practically in the market, within the private sector, have not been acceptable so have not been accepted or used. As a result, partnership securities could not substitute debentures perfectly.
Civil Act discussing the mortgage brings regulations on characteristics of subject of mortgage, mortgagor’s rights and mortgagee’s rights. But only exceptionally has regulations on the debt mortgaged for. Depending on determining whether mortgaged stock is mortgaged for present or for future debts of directors, this question would be answerable that if somebody re-seized the mortgaged stock and after it director damaged the company, which one would prevail, re-seizing person or mortgagee of that stock? Despite what at first glance under the influence of Civil Act seems, Commerce Act and its Amending By-Law in addition to taking mortgage for existing debt, approve taking mortgage for existing pledge and for non-existing debt which its cause has been formed. So, the company takes mortgaged stocks from directors not for existing debts i.e. for putting its asset under the directors’ custody but for future and possible damages which may occur from their managerial conduct (i.e. non-existing debt which its cause has been formed). So, until the damage has not been sustained and the mortgage is not established, the re-seizure would prevail the mortgage. As a result some allowed kind of re-mortgage forms.
The concept of sexual crimes in times of armed conflicts has provoked a very serious debate in international criminal law. At the same time, the jurisprudence of ICTY and ICTR on issues such as victim’s consent has led to more progressive definitions of rape and other forms of sexual violence in the context of armed conflict. Nevertheless, the diversity of opinions delivered by the different branches of the two tribunals has foreshadowed further development in formulating coherent definitions of war-time sexual crimes. This study aims to address the developments underscoring sexual crimes in the jurisprudence of ICTY and ICTR. Employing an analytical descriptive approach, the paper argues that the silence of the tribunals' statutes on the question of sexual crimes has caused a qualification of these offenses under such headings as war crimes or crimes against humanity. Whether this is a welcome development or not, will be further discussed in this paper.
Lawgiver, for the purpose of penal supporting of national historical-cultural monuments, ratified repeated article 566 of Islamic penal code in 1388; which demonstrates three actions of “making fake cases”, “introducing, carrying or storing” and “buying of historical-cultural monuments” as crimes. This criminalizing was necessary and advantageous, but the procedure of criminalizing has some weakness which we will review them in present paper. For example, for the crime of buying fake monuments, just buying was indicated, but other means of acquiring them has not recognized.
One of the topics of civil liability of French law is, “the civil liability resulting from other criminal acts". In the legal systems, the rule states that the criminal responsibility is personal and individual and there is no liability arising from the other’s criminal acts. However, it seems that we can accept civil liability arising from other’s criminal activities. This can even be assumed in the systems that they apply this kind of liability a "civil" responsibility not "criminal" responsibility. Therefore, the civil liability arising from criminal acts of other people can be raised in Iranian law. In one hand, Article 142 of Islamic criminal law is the question that the imposition of liability resulting from other’s criminal acts is possible or not. The place of this issue is empty in the legal literature of the law of obligations and Iranian criminal law. In this study, we discussed this subject through a comparative approach and with the help of French law.
Emphasizing the Kuhnian theory of paradigms and applying a transcendental approach focused on the theoretical basis and theory-laden theory will result in a contextual understanding for law and legal propositions. Therefore, this study begins with addressing constitutive elements of Kuhn's doctrine and applying his method to law and legal propositions. By elaborating different ideas regarding the very concept of paradigm, we will conclude that what we mean by legal paradigm is neither a mental context, nor simply epistemological, anthropological, normative, and methodological foundations of the legislator which can be chosen arbitrarily. On the contrary, the legal Paradigm is an epistemological context that has a hidden, vivid, inclusive, influential, and harmonizing reality. Finally, and based on the notion of paradigm, we try to pursue the paradigmatic doctrine in Iranian civil law and specifically in legal contracts. This paper concludes that importing incommensurable modern west's presuppositions and propositions has led to a deficient paradigmatic shift in Iranian civil law and specifically concerning the legal contracts. It shows the sovereignty of two parallel (opponent and incommensurable) paradigms. Emphasizing the semantic system of the paradigm in Cohen's thought, and of course with a transcendental view, focused on theoretical foundations and with a theoretical tone, results in a contextual understanding of law and its propositions.
This paper analyzes the ambiguous matters of substituting goodwill i.e. its consistency or inconsistency with the ecclesiastical law, its subsistence, and having or not having the right for transferring the lease to others. Then under the heading of the right for key-money, analyzes the key-money as an amount of money separate from the rent, the meaning of the phrase “the right for demanding the key-money in updated rate”, non-continuation of the lease after the expiry of its period in the key-money of the first kind, possibility of cancelation of the base lease of the key-money, and the manner of extending the lease; and after comparing the goodwill with the key-money relying on the discussions made, it has concluded that the right for the key-money is not a suitable substitution for the goodwill. As a result, the latter which has been proved as not against the ecclesiastical law, must be returned to the legal system.
By assuming state obligation in citizen participation, present paper attempts to address the role of government in fostering public participation culture. According to authors, state real will plays a vital and undeniable role in attracting public participation path. Hence, states’ resistance and unwillingness to public participation in power exertion would pose a serious threat against public section. According to present paper, public participation is a radical factor on considering political regime as democratic which cannot be realized except than participation culture development and enhancement. Hence, the main concern of present study is on creating participation cultural grounds and emphasis on needed steps including citizen training, reintegration, orienting the participation, organizing effective groups in power, free media and deregulation to which the state should be obliged. Utilized methodology in present study is a combination of descriptive, analytical and causal techniques due to problem – orientation nature of the research.
Keyvani hafshejani, D., Shahabi, M., Tabatabaei, S.M.S.
Publication Date: 2022/03/21
مطالعات حقوق خصوصی (25885618)(1)pp. 105-126
Abstract If a person purchases a commodity at a higher price than normal or sells it at a significantly lower price than normal as a result of a personal event, such as a spouse's illness, or of a public catastrophe, such as an earthquake or flood, this event can be said to impose the price on him. Under the Iranian law, the critical question is: what is the legal status of contracts based on imposing the price? To address this topic, the authors conducted a positive (descriptive) substantive analysis on laws and regulations, materials from Islamic legal treatises, and legal opinions. Also, following the economic approach used in this study, the authors examined the legal validity of contracts based on the imposition of prices on distressed and crisis-stricken persons from a positive-normative economic perspective. This positive-normative approach is founded on the theory of price and the concept of economic efficiency, respectively. It should be noted that since the history of the economic debate on this matter predominantly comes predominantly from the American literature, this article needs to be comparative. In Iranian law, according to the predominant view of Shi’i Jurists, Article 206 of the Civil Code considers a transaction motivated by the party’s economic need to be valid. However, based on many pertinent articles, most notably Article 178 of the Maritime Law, some jurists have argued that this is an unfair transaction in which products or services are provided at excessive rates to, or at a lower price purchased from, the distressed party. Some held the contract to be voidable, some found it modifiable, and some considered it valid, though with an option for the distressed party to cancel it. However, based on the predominant view among Shi’i jurists and the express or implicit content of the pertinent rules of Iranian law, a contract motivated by a party’s economic need is valid unless it falls in the scope of the Maritime Law, the rule embodied in which cannot be extended to other contracts, or is deemed anti-competitive in the market, in which case it may be terminated by the Competition Council according to the paragraph 1 of Article 61 of the Law on the General Policies for the Implementation of Article 44 of the Islamic Republic's Constitution. In the US law, section 2-302 of the Uniform Commercial Code, on which most states have based their respective laws directly or implicitly, a contract based on the imposition of an unconscionable price on the distressed party is deemed changeable. Moreover, contracts based on the imposition of prices on individuals affected by catastrophic disasters and crises, such as floods and earthquakes, can be altered and the imposer will face criminal sanctions and financial penalties . It should be emphasized though that using criteria such as unfairness or unconscionability for altering this sort of transactions may be challenged due to their vagueness and incapability to produce objective, well-structured standard. It is also noteworthy that the rise or fall in the price of commodities or services in a widespread or uncommon emergency is reasonable from an economic standpoint, because such events, on the one hand, often impede the production, resulting in large supply reductions and, on the other, lead to dramatic rise in the consumer demand, particularly for certain products and services. According to the pricing mechanism, whenever a product's supply declines and its demand grows, its price will reach its maximum level. This price rise will encourage present and future manufacturers to expand their output, resulting in lower prices and increased consumer welfare. Furthermore, validating the discount sales of economically distressed parties may be an appropriate economic strategy in recessions. However, government interventions (by regulation) are often inefficient and ultimately detrimental to consumers and should thus be limited to cases when it is necessary for the maintenance of the market activity.
An attempt to realize the authority of the synthesis of law and economics and stepping into its epistemological realm require thinking of a remedy for and responding to barriers to the methodology of the realization of the economic analysis of law. many experts in the discourses of "economics" and "law” do not tolerate the entry of economics into the realm of other disciplines, such as law, and the analysis of law based on the theories and methods of another discipline, such as economics, as they believe that there is no homogeneity and relevance between the principles of a methodological domain; i.e. economics, and those of a subjective domain; i.e. law. In the present paper, authors on the one hand, adopt a moderate positivist approach by rejecting the pure positivism approach and simply rejecting "the law as it is" and emphasizing the concept of efficiency and the normative approach on the other hand and in response to this question that whether the incorporation of economic standards into the realm of property and contract law is as an acceptance of the heterogeneous theories and methods of economics? by explaining the role of one of the most fundamental concepts of economics; i.e. the concept of “resource scarcity”, in creating the concepts of "property" and "contract," the authors show that the entry of the necessary economic principles of this concept into the realm of property and contract does not mean the acceptance of the heterogeneous theories and methods of economics, but due to the unity of their cause with that of the two latter concepts, we can talk about the homogeneity of method and subject in the economic analysis of property and contract. Given aforementioned discussion, is it essential to apply economic rules in the realm of legal property and contract law? The answer is that if in the analysis of the above rules, the epistemic requirements of the fundamental link between economics and the law of ownership and contract are denied or forgotten, these rules will be alienated from their origin, and will more or less deviate from the path to achieve social interests. The epistemic requirements mean promoting the concept of efficacy; as a criterion for the validation of legal rules, and reducing the role of governments in limiting the principles of private property and contractual freedom.
Implementation of development plans, where requires the possession of the citizens' lands, sometimes encountered property owners resistance and lack of compliance with these plans that ultimately ends with the compulsion of the competent authorities and the intervention of the executed agents with duress. But sometimes owners take action on the implementation of the plan and optional retreat with discretion and willingly. In this case, the right to claim for value by him has sometimes been questioned and denied by lawyers and courts. Judicial review also shows that most of them are deprived of claim for value and proof their rights and the municipalities have taken over part of their property for free. The present study seeks to examine the reasoning grounds of this category of courts and lawyers to argue on proving the right of this category of owners.
There is no doubt that in the field of personal status, including family law, legislator's will is the basis of the validity of legal norms in the Iranian legislative system. However, territory of family has never been secured against government intervention due to social and economic developments. The main question in this research is the analysis of this intervention and its credit effects. Thisintervention can be expressive and thus the law can be regarded as the only instrument for stating this regulation which hasderived from the will of legislator, but, sometimes the law is an instrument for creating a legal ruleand in this case that the relationship between the will of the legislator and the will of the government is of considerable importance and causes some challenges and questions. For example, what effect does the rule of necessity of registering permanent marriage have on marriage? Is the effect of this rule merely positive or should it be considered affirmative? Thisstudy attempts to analyze the four roles of state in the legislative system, namely select of a subject and,recognizingsecondary titles, choice of legal rules,supervision and ensuringand finally establishmentof rules apply to behavior between spouses, how their rules of family are conformed with the social facts and offering some solutions to overcome some of existing legal challenges in this field.
Hajiaghaei, B., Ebrahimi-takamjani, I., Kamyab, M., Saeedi, H., Jalali, M.
Publication Date: 2016
Medical Journal Of The Islamic Republic Of Iran (22516840)30(1)
Background: Creating a socket with proper fit is an important factor to ensure the comfort and control of prosthetic devices. Several techniques are commonly used to cast transtibial stumps but their effect on stump shape deformation is not well understood. This study compares the dimensions, circumferences and volumes of the positive casts and also the socket comfort between two casting methods. Our hypothesis was that the casts prepared by air pressure method have less volume and are more comfortable than those prepared by weight bearing method. Methods: Fifteen transtibial unilateral amputees participated in the study. Two weight bearing and air pressure casting methods were utilized for their residual limbs. The diameters and circumferences of various areas of the residual limbs and positive casts were compared. The volumes of two types of casts were measured by a volumeter and compared. Visual Analogue Scale (VAS) was used to measure the sockets fit comfort. Results: Circumferences at 10 and 15 cm below the patella on the casts were significantly smaller in air pressure casting method compared to the weight bearing method (p=0.00 and 0.01 respectively). The volume of the cast in air pressure method was lower than that of the weight bearing method (p=0.006). The amputees found the fit of the sockets prepared by air pressure method more comfortable than the weight bearing sockets (p=0.015). Conclusion: The air pressure casting reduced the circumferences of the distal portion of residual limbs which has more soft tissue and because of its snug fit it provided more comfort for amputees, according to the VAS measurements.
