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Home / Published archives / Journal of Legal Research – Number 32

Journal of Legal Research – Number 32

Journal of

LEGAL RESEARCH

Number 32

Vol. XVI ● No. 2

Autumn 2017 – Winter 2018

 

CONTENTS

 

Articles

 

Explaining the Principles of Banking Regulation in the Perspective of the Legal System of Iran 
Dr. Ali Akbar Gorji & Dr. Hedieh Sadat Mirtorabi

 

Determination Responsible for the Accident between Car Owner and Driver in Mandatory Insurance Law of Civil Liability Owner of Motorized Vehicles
Dr. Hamid Bahrami Ahmadi & Reza Aghaabbasi

 

The Basis and Extent of Civil Liability of the Contractor
Shahram Karimi Tazehkand & Dr. Mahmoud Erfani & Dr. Javad Vahedi Zadeh

 

International Law: The Law Based on the Coordination or Conflict? 
Dr. Hoorieh Hosseini Akbarnezhad & Dr. Hale Hosseini Akbarnezhad

 

Investigation of Juridical Principles of Article 852 of Civil Code
Dr. Sayyed Mohammad Sadegh Tabatabaei & Fatemeh Karimi

 

The Principles of Independence and Impartiality in the Public Service Broadcasting with Emphasis on Iran 
Nafiseh Moarefi

 

Determination of Legal Regime Governing Commercial – Tourism Space Flights
Amineh Farasatmand

 

The Fundamental Survey on Some Aspects of Bill of Exchange Based on Regulations of the New Commercial by-Law
Dr. Hamid Miri & Sirous Shahriari & Mostafa Abedinpour

 

Review Iranian Legislative Election Venue from the Viewpoint of the Criteria for Free and Fair Election Venue
Seyed Yasin Hosseini

 

Examining Law System of Health Service Insurance in Iran with Comparing Health Insurance in America
Dr. Emran Naimi & Mohammad Sharifi Soltani

 

The Impact of Laws on Property Ownership on Urban Real Estate Transactions
Shahnaz Seifolahi

 

Articles

 

Explaining the Principles of Banking Regulation in the Perspective of the Legal System of Iran 

Dr. Ali Akbar Gorji
Associate Professor, Department of Law, Shahid Beheshti University
&
Dr. Hedieh Sadat Mirtorabi 
Ph.D. in Public Law, University of Tehran
Abstract:
Today, banking regulations are accurate and precise, which should be done with the best methods of undergraduate and technical.
After decades of banking regulation, regulation of inflation, poor regulation and its adverse consequences on various sectors of society, is one of the fundamental problems of the banking regulation system, how and according to what rules and regulations the regulator will regulate and regulation public affairs.
It remains a major legal challenge within our legal system .So, in order to solve these problems, eight fundamental principles have been investigated. These principles will help bank regulators make systematic, informed, and transparent decisions that have the most benefit and the lowest cost.
By institutionalizing them, there is a legal framework that encourages productivity and competition and guarantees a sufficient level of banking services throughout the economy.
These principles can be thought of as a series of circuits that are designed to prevent the spread of shock from a bank to the financial network and its deterioration.
Keywords: Principles, Regulation, Banking System, Independence, Transparency.

Determination Responsible for the Accident between Car Owner and Driver in Mandatory Insurance Law of Civil Liability Owner of Motorized Vehicles

Dr. Hamid Bahrami Ahmadi 
Professor at Valiasr University of Rafsanjan
&
Reza Aghaabbasi 
Ph.D. Student at Department of Private Law at Kharazmi University
Abstract:
Despite the vast benefits of automobiles for transportation industry, it brought various risks to people’s daily life. Against these risks, civil liability contribute guarantee the rights of individuals. Car accident has been one of the most important issues at courts in the last century. This provides necessity legislator intervention in order to reduce damages caused by this phenomenon. In this regard, the civil liability compulsory insurance of owners of land vehicles toward third parties approved in 1968 and the amendment was in 2008. However, unfortunately there are yet defects in this law, for instance when car hasn’t insurance or amount of damage is more than amount that insurance pays, to whom can the injured refer? Owner or driver? There are many viewpoints, but finally the theory will be mentioned which the people that may have land automobiles based on first provision of mentioned law, are four categories: 1- owner; 2- illegal proprietor; 3- legal proprietor who has vehicle for owner profits; 4- legal proprietor who has vehicle for his/her benefit. This theory is better and widely accepted because it is logically more consistent with legal rules.
Keywords: Owner of the Vehicle, Driver of the Vehicle, Compulsory Insurance Law Responsible for the Incident, Illegal Occupier.

The Basis and Extent of Civil Liability of the Contractor 

Shahram Karimi Tazehkand
M.A in Private Law and Lecturer in University
&
Dr. Mahmoud Erfani
Ph.D. Professor in Faculty of Law, Tehran University 
&
Dr. Javad Vahedi Zadeh
Ph.D. Department of Islamic Law and Jurisprudence,
Ardabil Branch Islamic Azad University, Ardabil, Iran
Abstract:
The general principle is that the damage is introduced to persons (real or legal) must be compensated by an infringer. These exceptions are not always, in some cases the responsibility of the contractor to civil liability is examples doe to others act and arising from such action contrary to this principle. In our legal theories; the contractor is responsible to compensate for damages suffered, Among these theories can be cited as blamed theory, risks, and constraints ensure the representation theory (but by adding clauses about employers and contractors) of employer and contractor. The fans are more obscure than the other theories, these theories has been taken from the western law beside of jurisprudential rules such as loss, wastage, causality, non – loss, form contractor responsibility legal and jurisprudent basics. Conjugal contract is a contract under Article 10 of the Civil Code, in Article 2 of the Swiss Civil Code and Article 6 of the French Civil Code has been adopted. Responsibility of the parties to the contract should be included in the legislation stands, have been developed in the area of contract, Therefore, this article is trying with benefiting from professors Comments with views about civil responsibility and contract and also jurists of other countries and about rules and regulations related to contract and civil responsibility law relating to the Convention on civil liability contractor general conditions related is discussed.
Keywords: Contractor, Civil Responsibility, General Conditions of Contract, Contractor Safety.

International Law: The Law Based on the Coordination or Conflict?

Dr. Hoorieh Hosseini Akbarnezhad 
Ph.D. in International Law and Faculty Member of Tarbiat Modares University
&
Dr. Hale Hosseini Akbarnezhad
Ph.D. in International Law, Lecturer at University and Researcher
Abstract:
One of the most prominent and urgent problems in international governance is how the different branches and norms of international law interact, and what to do in the event of conflict. The potential for conflict between norms seems inherent in any legal system. As far as norms of international law are concerned, there are a number of variables that make conflict an even more inevitable occurrence. Most of the reasons why conflict arises in international law are inherent in the nature of international law. A more practical consequence of international law essentially being created only by state consent is that many international norms are left unclear and in potential conflict with other norms.
There is no inherent hierarchy as between the different sources of international law traditionally referred to (treaties, custom, general principles of law and unilateral acts of states or international organizations). In principle, they all have the same binding force. Even the higher standing of jus cogens is unrelated to its source.
The emergence of the concept of jus cogens, essentially in the second half of the twentieth century, corresponds to an awareness that not all norms of international law should have the same status. Some of them protect so important and universal a value, such as the prohibition on genocide, that they have a hierarchical standing that is higher than other norms.
Keywords: International Law, Conflict, Norm, Hierarchy.

Investigation of Juridical Principles of Article 852 of Civil Code

Dr. Sayyed Mohammad Sadegh Tabatabaei
Associate Professor of Law Department of Esfahan University
&
Fatemeh Karimi
Ph.D. Student in Private Law of Esfahan University
Abstract:
According to the civil code, Art 850 & 851, the devisee must be existed and born alive, and according to the Art 957 of civil code, an unborn child can enjoy the privilege of civil rights only in the case of being born alive. However, in art 852, it is stated, “If the unborn child become aborted in resulted of a crime, his/her inheritors will receive the testamentary unless the crime prohibits the heir”. It seems this article contradicts the before-mentioned articles. According to this article, the unborn child is identified as a devisee in a case he/she was aborted in a result of a crime and consequently was born dead. And so his/her inheritors will receive the testamentary. Despite of exceptional nature of this rule, and the existence of seemingly contradiction between Art 852 and the stated Art, some lawyers generalize the rule of this article to the heir and believe that if the unborn child was aborted in a result of crime and was born dead, he/she will heir as well. This article is going to specify the elements of this rule and investigate its capability to be generalizing to the heir rule.
Keywords: Article 852 of Civil Code, Will, Unborn Child, Abortion and Inheritance.

The Principles of Independence and Impartiality in the Public Service Broadcasting with Emphasis on Iran

Nafiseh Moarefi
Graduated Master of Art in Communication law, Allameh Tabataba’i University
Abstract:
In this article besides defining public service broadcasting (psb), kinds of psbs and common principles, Principles of independence and impartiality has been considered. It is fairly obvious that particular political party, government or commercial companies exercise to influence over a public service broadcaster to promote its own interests. So the article has proposed methods to ensure the independence and impartiality.
On the other hand each principle has different aspects and they are apart from each other generally. However one could affect another one in some cases and this would be the property of public service broadcasting. So with this feature and the proposed methods, the creation of psbs would be easier.
Keywords: Radio and Television, Public Service, Principle of Independence, Principle of Impartiality, Islamic Republic of Iran Broadcasting.

Determination of Legal Regime Governing Commercial – Tourism Space Flights

Amineh Farasatmand
Ph.D. Candidate of Public International Law, University of Tehran
Abstract:
Space tourism is one of the most newfangled space activities. Vehicles which are used in order to transfer persons into space have hybrid nature and are called space-plane. Besides, the boundary between air space and outer space still is not determined. Unfortunately, commercial space flights are not mentioned in space treaties. These facts make the determination of legal regime governing on commercial space flights much more difficult. Therefore, experts of international law suggested two approaches (special and practical). In this article, at first these two approaches will be studied and the legal regime governing space flights will be determined, then the issue of private sector’s liability will be under consideration.
Keywords: Commercial Space Flights, Tourism Industry, Sub-orbital Flights, Orbital Flights, Liability Regime Governing Space Tourism, Liability Insurance in Space Activities.

The Fundamental Survey on Some Aspects of Bill of Exchange Based on Regulations of the New Commercial by-Law

Dr. Hamid Miri 
Assistance Professor of University of Gonbad Qavous
&
Sirous Shahriari
Instructor of Azad University of Boushehr
&
Mostafa Abedinpour
Master of Sicences in Private Law
Abstract:
In order to eliminate defaults of the current commercial code has been tried to codify the new commercial by-law based on general rules and regulations such as Geneva and Uncritical instruments on bill of exchange and promissory note. Thus, we are able to count some the most important features of this bylaw; the definition of bill of exchange, stipulation to some fundamental feature of bill of exchange as a commercial instrument including independence of signatures principle, possibility of completing incomplete instrument, possibility of mortgaging and endorsement to pledge and presenting an explicit solution for recognizing the legal nature of putting signature act on bill. Notwithstanding, there are some denunciations; absent of considering legal nature of bill of exchange and some important definitions such as signature definition.
Keywords: Legal Nature, Inchoate Instrument, Acceptance by the Third Party, Endorsement, Guaranty.

Review Iranian Legislative Election Venue from the Viewpoint of the Criteria for Free and Fair Election Venue

Seyed Yasin Hosseini
Senior Ph.D. Student of Public Law and University Lecturer 
Abstract:
Iranian Parliament election venue is one of the most important executive stages of parliament election and if it plans truly, it will have positive influence on results of parliament’s election and structure and bring legality of democracy. This requires observing criteria of free and fair election for determining electoral venues. A short look on transformations of Parliament’s election related to regulations of Iranian election shows defects and problem in this regard. In order to solve such problems and to guarantee even more criteria of free and fair election, members of the Parliament provide a plan of election system transformation (transforming election to provincial nominee election) and submit it to the parliament. This plan could vindicate its goals relying on its capacities and positive point and considering its likely weak point. Therefore, this study firstly deals with Legislative Election venue and then analysis the mentioned plan.
Keywords: Free & Fair Elections, Election Venue, Electoral System, Islamic Consultative Assembly, Provincial Nominee Election.

Examining Law System of Health Service Insurance in Iran with Comparing Health Insurance in America

Dr. Emran Naimi
Department of Public Law, Faculty of Law, Islamic Azad University,
Central Tehran Branch, Tehran, Iran
&
Mohammad Sharifi Soltani
Master of Public Law, Faculty of Law, Islamic Azad University, Central Tehran Branch, Tehran, Iran
Abstract:
Providing different aspects of security including economical security are the most important goals of governments. Social risks like illness threat such a security. Because of this, after establishing welfare governments in 18 century, this government through providing social service decreases the negative effect of these risks on its nations. Also governments try to find the most appropriate method of health service. Regarding this, Iran and America governments in the recent years imposed change on the health system of country and change it to one of the complicated subjects in the law arena. Considering comprehensiveness of health insurance and Compulsory Corporation, reviewing health insurance is important. In this research on the purpose of recognizing weakness of Iran health insurance system and meeting them, we try to compare health system strategy, active institution in the field of providing health service, covered people and it’s financial resource and method of providing health service in these two countries.
Keywords: Health Insurances, Health System, Methods and Levels of Health Service, Family Doctor, Franchise.

The Impact of Laws on Property Ownership on Urban Real Estate Transactions

Shahnaz Seifolahi
Master of Private Law
Abstract:
The impact of laws on estate acquisition on city real estate. State and municipalities to do the duties and responsibilities that are responsible, such as real and legal persons, in the necessary time, they form the contracts with others which these contracts are done in the form of contracts such as sale, rent, compromise, mortgage, power of attorney, swaps and contracts referred to in Article 10 of Civil Code. In addition, to implement their programs and projects, they need to acquisition and possession of properties which according to existing laws and regulations, they apply the acquisition and possession of their personal properties. Of course, they must use national and state property and lands. In many cases, because of the inadequacy of the estate, land acquisition and property of people is necessary. Thus, it is possible that a conflict arise between the private interests of individuals and the public interest of community. However, due to reasonable and logical reasons, discarding and ignoring the public interest is not accepted. But this should not be cause the damage of individuals. The respect to the principle of autonomy and the principle of freedom of contracts requires that the rights and aspirations of individuals are considered. However, comply with the above principles should not be conflicted to supply the wants and needs. Therefore, the necessity of laws and regulations that concern the interests of property owners and the interests of society is considered. Reviewing the relevant laws and regulations and pay attention to the question of to what extent the rules is in this regard, is necessary.
Keywords: Municipality, Ownership, Acquisition, Plan.

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