LEGAL RESEARCH
Number 58
Vol. 23 ● No. 58
Summer 2024
Managing Editor: Vahid Eshtiagh
Editor-in-Chief: Seyyed Ghasem Zamani
CONTENTS
Extra-Legal Actions of the Security Council in Violation of Fundamental Human Rights
Dr. Seyyed Ghasem Zamani – Javad Safdari Kohneh Shahri
The Role of Concerned Countries in the Effectiveness of Unilateral Sanctions
Ahdieh Zangi Ahrami – Dr. Ahad Bagherzadeh – Dr. Hamid Azizi Moradpour
The Role of the United Nations Security Council in the Protection of Cultural Heritage
Bagher Beidaghi – Dr. Peyman Bolouri – Dr. Malek Zolghader
Investigating the Concept of “Progressive Development of Law” In the System of International Human Rights Law and Comparing It with the General International Law
Dr. Amir Hossein Mohebali
The Performance of the World Health Organization in Dealing with Covid-19 in the Balance of International Law
Dr. Aramesh Shahbazi – Dr. Bassel Abzo
Studying the Common Chapter on the Competences of the Islamic Council Parliament and the Supreme National Security Council on the Issue of JCPOA
Dr. Ali Ghorbanpour
FATF Recommendations in Adopting Risk-Based Approach (RBA) in Anti-Money Laundering Supervisory-Control Structure and Iran’s Legislative Position
Amir Jamali Hajian – Dr. Esmaeil Abdollahi – Dr. Ahmad Mirzaei
Analyzing the Causes and Factors Affecting the Gender Wage Gap
Fatemeh Nowrouzi
Civil Nationalism through Criminal Legislation in Iran
Dr. Hossein Mirmohammad Sadeghi – Alireza Gharaghani
Transformative Justice: Foundations and Reflections
Hosna Nouraei – Dr. Amir Hassan Niazpour
Criminal Investigation of Serial Murders: Challenges and Solutions
Ali Rezaei Glowardi – Dr. Azadeh Sadeghi
Media Representation of Infanticide by the Father and Demands for the Necessity of Reviewing the Legal Sentence
Mahdi Leila Rahnama
Internal and External Mechanisms of Companies and Organizations in Preventing Economic Crimes
Seyed Rreza Hossinibehbahani – Dr. Sohrab Salahi – Dr. Mansour Atasheneh
Feasibility of the Authority of Will in the Rights Governing the Personal Status
Mohammad Babolhekami – Dr. Farhad Parvin
The Eligibility of Commercial Companies and the Relationship of the Subject of the Company with it in the Laws of Iran, Egypt, and Lebanon
Dr. Fatemeh Rajaei
The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time
Dr. Mahdi Hamze Howeyda – Jamshid Shiri
Civil Liability of Banks for Sayadi Checks
Ahmad Reza Davarpanah – Dr. Mehdi Kazemi Moghadam – Dr. Jamileh Jafari
Effect of Loss Distribution on Deterrence Function of Tort Law
Dr. Negin Gholami – Dr. Mohammad Molodi
Doubt in the Legal Capacity of Smart Contract’s Parties and the Possibility of Applying the Principle of Correctness in the Assumption of Non-Qualification
Mohammad Hasan Taj Langerudi – Dr. Farzin Dehdar
The Procedural Difference between the Main Third-Party Intervention and Derivative in the Preliminary Stage and Reconsideration
Dr. Majid Aziziyani
Protection of Privacy and Personal Information: A Comparative Study between Iranian Law and Canadian Law
Dr. Mohammadhossein Taghipour Darzi Naghibi – Seyedeh Tahere Moosavi Khatir – Mehdi Taleghan Ghafari
Extra-Legal Actions of the Security Council in Violation of Fundamental Human Rights
Seyyed Ghasem Zamani
Professor, Department of Public and International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran.
Javad Safdari Kohneh Shahri (Corresponding Author)
PhD Student in International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
ABSTRACTS
The Security Council has interpreted the concept of international peace and security extensively and extended it to a wide range of issues, including the protection of human rights and the protection of human rights abuses. So that some of its decisions and actions have been beyond the limits of legal authority and competence and incompatible with the objectives of the Charter and human rights obligations and contrary to the standards of international law. The purpose article is to examine the Security Council as an extra-legal body and the shortcomings of its commitment to its obligations and responsibilities in the face of serious human rights violations resulting from Chapter VII and humanitarian interventions. Despite the council’s claim of human rights protection, there has been a clear contradiction in its management behavior and performance, which not only has not reduced human rights violations in practice, but has in some cases exacerbated the council’s inefficiency. The findings show that non-compliance with the limits and powers and veto power of the permanent members of the Council is one of the most important factors in the failure of the Security Council in resolving human rights issues and managing international crises. Therefore, by adopting a mechanism independent of the political interests of the permanent members and using the veto to strengthen and positive cooperation, we can pave the way for fundamental changes in the behavioral patterns and procedures of the council and proper internal monitoring of its actions and commitment to provided human rights obligations.
Keywords: Security Council, Human Rights, United Nations, International Peace and Security, Crisis Management.
The Role of Concerned Countries in the Effectiveness of Unilateral Sanctions (Relying on the Unilateral Sanctions of the United States of America Against Iran)
Ahdieh Zangi Ahrami
PhD Student in International Law, Faculty of Law and Political Science, South Tehran Branch, Islamic Azad University, Tehran, Iran.
Ahad Bagherzadeh (Corresponding Author)
Associate Professor, Department of International Law, Faculty of Law and Political Science, South Tehran Branch, Islamic Azad University, Tehran, Iran.
Hamid Azizi Moradpour
Lecturer and Invited, Department of Public and International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran. Lecturer and Invited, Department of International Law, Faculty of Law and Political Sciences, South Tehran Branch, Islamic Azad University, Tehran, Iran.
ABSTRACTS
Although unilateral sanctions usually evoke the special role of the sanctioner countries as the main cause of human rights adverse effects caused by the imposition of sanctions, but this issue should not lead to ignoring the role and responsibility of the target countries in the extent of the effects and providing the human rights needs of their residents. In other words, unilateral sanctions (primary and secondary) inevitably always contain side effects, the amount of which can always depend on various factors. So far, most of the books and articles written in the field of sanctions have examined sanctions and human rights violations from the point of view of the sanctioning country, and limited research sources have also examined sanctions from the perspective of the target countries and third countries. One of the most important goals of internal sanctions is to review the internal structures and laws and subsequently modify the structures and laws that intensify the sanctions, and in this article, it is referred to as self-sanctions. Third countries can also support their nationals who are engaged in trade with the sanctioned country by imposing blocking regulations while preventing the violation of their sovereignty by the sanctioned countries. In this article, an attempt has been made to explain the role and responsibility of concerned countries in sanctions (sanctioner, target and third party), and examine the structures, laws and regulations of the target country (especially Iran) and its role in the effects of sanctions. At the end, we will provide solutions to modify and change them.
Keywords: Iran, United States of America, Unilateral Sanctions, Human Rights, Self-Sanctions.
The Role of the United Nations Security Council in the Protection of Cultural Heritage
Bagher Beidaghi
PhD Student in Public International Law, Faculty of Humanities and Arts, Zanjan Branch, Islamic Azad University, Zanjan, Iran.
Peyman Bolouri(Corresponding Author)
Assistant Prefossor, Department of Law, Faculty of Humanities and Arts, Zanjan Branch, Islamic Azad University, Zanjan, Iran.
Malek Zolghader
Assistant Professor, Department of International Relations, Faculty of Humanities and Arts, Zanjan Branch, Islamic Azad University, Zanjan, Iran.
ABSTRACTS
Due to the various characteristics of cultural heritage, any attack on it draws the attention of the international community. This can be seen in the reactions of the United Nations (UN) to the destruction, looting, and trafficking of the cultural heritage of countries such as Iraq, Syria and the other countries committed by terrorist groups. What is important here is the United Nations Security Council’s reactions to this issue. It seems that, in terms of securitizing cultural heritage, the procedures taken by the Security Council for the protection of cultural heritage have included requiring internal measures (affecting the domestic law of countries) and referring to the humanitarian aspects of cultural heritage. Paying attention to the Security Council’s performance with regard to cultural heritage can be effective since the Security Council, as the main pillar of the UN, has the primary duty of maintaining international peace and security and its decisions are binding for the UN members as per the UN Charter. To this end, this paper, by adopting a descriptive and analytical approach, tries to examine and explain the procedures of the United Nations Security Council for the protection of cultural heritage. Based on the findings of this paper, we conclude that United Nations Security Council’s resolutions have been effective in protecting cultural heritage.
Keywords: Cultural Heritage, Human Rights, Domestic Law, Terrorism, Security Council’s Resolutions.
Investigating the Concept of “Progressive Development of Law” In the System of International Human Rights Law and Comparing It with the General International Law
Amir Hossein Mohebali
PhD in Public International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University,
ABSTRACTS
International human rights law has features distinguishing it from other disciplines of public international law. These special features have caused some common words to undergo a conceptual transformation and evoke a different meaning from what they have in the field of international law. One of these terms is “progressive development of rights”. The declaratory nature of human rights rules (in all forms of rules, including custom and treaty), has led to the fact that in the subject area of international human rights law, which is all about recognition, progressive development creates the meaning of promotion of status and promotion of human rights. While in international law, progressive development brings to mind the concept of establishment and creation of rights.
Examining keywords such as “progressive development of rights” and identifying and explaining their exact meaning in the subject area will have the benefit that human rights obligators, who are the governments in most cases, understand the nature and scope of their obligations correctly and implement them in a timely manner and in accordance with the protectionist goals of human rights.
By explaining the characteristics of international law and international human rights law, The present study works on the semantic difference of the term “progressive development of rights” in international human rights law and in the field of general international law, and the alternatives to progressive development in international human rights law and what they mean.
Keywords: General International law, International Human Rights Law, Progressive Development, Protection, Promotion.
The Performance of the World Health Organization in Dealing with Covid-19 in the Balance of International Law: Weaknesses and Suggestions for Improving the Organization’s Actions
Aramesh Shahbazi (Corresponding Author)
Associate Professor, Department of Public and International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran.
Bassel Abzo
PhD in International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran; Instructor, Department of International Law, Faculty of Law, Damascus University, Damascus, Syria.
ABSTRACTS
The emergence of epidemics and their rapid spread is the result of the nature of international life, which has seen a significant increase in the movement of people and goods. states have realized this issue for a long time, especially after the Second World War, this task was entrusted to the World Health Organization as the guardian of the health and safety of the people of the world. The World Health Organization has faced many challenges during its lifetime, which spans more than seven decades, but the most difficult of these challenges was the Covid-19 crisis. The organization has already tried to deal with this epidemic, and considering that there are 4 million deaths worldwide, it can be described as a failure. This lack of success is rooted in several reasons, which are either related to the structure of the organization or related to its working mechanism. This article is trying to investigate the possible reasons for the failure of the World Health Organization and in this regard, it tries to examine and discuss the necessary solutions to improve the performance of this organization in order to fight against epidemics.
Keywords: World Health Organization, International Health Regulations, Covid-19, Pandemic, Voluntary Aid.
Studying the Common Chapter on the Competences of the Islamic Council Parliament and the Supreme National Security Council on the Issue of JCPOA
Ali Ghorbanpour
PhD in Public Law, Faculty of Law and Political Sciences, Tabriz Branch, Islamic Azad University, Tabriz, Iran.
ABSTRACTS
The JCPOA is one of the agreements where the competence of the authorities involved in it is questionable. Therefore, with this approach, the aim of the current research is to study the common chapter of the competences of the Islamic Council and the Supreme National Security Council on the issue of JCPOA by using analytical -descriptive method and using library resources. The findings of the research show that the origin of the joint powers of the Islamic Council and the Supreme National Security Council is the two special tasks of legislation and policy-making. Contrary to popular belief, the competencies of the Islamic Council are not only legislative but also a set of legislative bodies and subordinate institutions. The functions of the Islamic Council are exclusively for the three functions of legislation, supervision, and interpretation of ordinary laws. In addition to the Islamic Council, the Supreme National Security Council, which is responsible for the regulation and implementation of the national security strategy in the country, in fact, the entire mechanisms for regulation and follow-up of national security, especially Iran’s peaceful nuclear program, which is one of the most important topics of Iran’s foreign policy in three It is the last decade After the leadership body. The Supreme National Security Council is the highest body whose rulings are in force. That is, the approvals of the Supreme National Security Council are valid for all executive bodies of the country with the approval of the leadership and there is no need to go through.
Keywords: Islamic Council Parliament, Supreme National Security Council, JCPOA, National Security, Constitution.
FATF Recommendations in Adopting Risk-Based Approach (RBA) in Anti-Money Laundering Supervisory-Control Structure and Iran’s Legislative Position
Amir Jamali Hajian
PhD Student in Criminal Law and Criminology, Department of Law, Bushehr Branch, Islamic Azad University, Bushehr, Iran.
Esmaeil Abdollahi (Corresponding Author)
Assistant Professor, Department of Law, Bushehr Branch, Islamic Azad University, Bushehr, Iran.
Ahmad Mirzaei
Assistant Professor, Department of Law, Bushehr Branch, Islamic Azad University, Bushehr, Iran.
ABSTRACTS
“Supervision and Control” as an essential part of any Anti-Money Laundering Management System, is of great importance in preventing and combating the purification of criminal proceeds. Since the Financial Action Task Force, recommended countries and those subject to anti-money laundering laws to adopt a “Risk-Based Approach” and considered it as a fundamental principle in combat money laundering, by adopting such an approach in the national and intra-organizational supervisory and control structure, it is possible to identify the highest risks and to direct resources according to priorities. Considering the importance of the matter, in this research, by studying the documents and recommendations issued by FATF and Iran’s Anti-Money Laundering Law (amended 2018), in a descriptive-analytical method, while identifying and explaining the standards of adopting a risk-based approach in anti-money laundering supervisory and control structure with a view to draw a road map, the legislative position of Iran will be analyzed in this regard. In conclusion, by identifying the components of adopting a standard risk-based approach and studying Iran’s legislative approach, the results show that in Iran’s anti-money laundering supervisory and control structure, with the formation of the necessary institutions, the adoption of a risk-based approach has been considered at both national and intra-organizational levels, and its manifestation can be seen in the prediction of “National Risk Assessment Workgroup”, “National Risk Assessment Document” and “Action Plan”.
Keywords: Money Laundering, Supervision and Control, Risk-Based Approach, FATF, Risk Assessment.
Analyzing the Causes and Factors Affecting the Gender Wage Gap (In Light of the Principle of Equal Pay in International Labor Law)
Fatemeh Nowrouzi
M.A in Public Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran.
ABSTRACTS
The gender wage gap has violated the principle of equality and non-discrimination and the principle of equal pay. In this regard, the International Labor Organization, while recognizing and emphasizing the principle of equal pay for work of equal value in its conventions and recommendations, has conducted research and prepared a report in this field as well. This guide can provide appropriate and necessary policy recommendations to governments. It should be emphasized that the gender wage gap represents a very broad problem, both in societies and in the labor market, that cannot be solved individually. Research has shown that gender pay equity should be pursued through a policy program that promotes an inclusive and transparent labor market alongside the application of the principle of pay equity. Women’s economic empowerment has obvious positive consequences for women’s agency, freedom, and social and political empowerment. Unequal wages during working years have their effects on gender inequality throughout life, and lower income reduces women’s economic independence throughout life, and Its consequences are evident in old age in salaries and income during retirement. The present study, with a descriptive-analytical method, aims to analyze the causes and factors affecting the gender wage gap; Because eliminating the gender pay gap depends on knowing how and to what extent such gaps exist. The results indicate that the factors affecting the gender wage gap are rooted in the human capital model and the discrimination model, which each explain a part of the gap.
Keywords: Gender Pay Gap, Gender Equality, Principle of Equal Pay for Work of Equal Value, Non-Discrimination, Women’s Rights.
Civil Nationalism through Criminal Legislation in Iran (Study of the Process of Activities Leading to the Legislation of Criminal Laws Supporting Ethnic-Religious Identities in Iran)
Hossein Mirmohammad Sadeghi
Professor, Department of Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
Alireza Gharaghani (Corresponding Author)
PhD Student in Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
ABSTRACTS
Civil nationalism is a type of “belief in the nation” in Which, despite the existence of diversity and fragmentation in cultural, ethnic, and religious components, is defined mainly based on the equal right of citizenship and the will to live together. In Iran, since the constitutional revolution until now, there has been an effort to prioritize the idea of civil nationalism over competing types, namely cultural and ethnic nationalism, in which emphasis is placed on language, religion, history, or common heritage and the revival of the great civilization of the past. Although in most of this period, the cultural approach has prevailed, the growth rate of its civil type from the context of criminal legislations increased from the eighties and reached its peak in the late nineties when three bills were presented in the 10th and 11th parliaments. These bills include the bill of “Insulting the legal religions, culture, language and legitimate customs of ethnic groups”/ the bill of “Adding two articles to the Islamic Penal Code/ and the bill of “Repressing of Racial Discrimination, Ethnic and Religious Hatred” which Finally, parts of the content of all three bills were merged and Enacted in the form of “Repeated” Articles 499 and 500 of the Taziraat section of the Islamic Penal Code. In this effort in the nineties, the demand of the people on the one hand, and the response of the elected representatives of the nation in the parliament, especially the representatives of ethnic and religious identities in the minority, played a prominent role. However, these efforts are still incomplete and there are serious gaps, especially in relation to technical burden of proof and the scope of inclusion.
Keywords: Civil Nationalism, Ethnic-Religious Minorities, Insulting Ethnic – Religions Identities, Public Will, Criminal Legislation.
Transformative Justice: Foundations and Reflections
Hosna Nouraei
PhD Student in Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.Amir Hassan Niazpour (Corresponding Author)
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
ABSTRACTS
Transformative justice in the late 1990s, was introduced as a new approach to justice that seeks to transform unjust structures to eradicate structural causes of crime. Because crime is often the result of injustice, domination, and inequality, and as long as the structural causes of crime persist, the crime will remain. Transformative justice pursues this goal mainly by linking restorative justice to social justice movements. Because restorative justice provides desirable opportunities for personal and social changes by facilitating dialogue and social networking. Through this dialogue, members of the community, on the one hand, learn about themselves and seek positive personal changes. On the other hand, they will gain a better understanding of their community and the changes that are needed in it and will unite for structural transformations. The present study by descriptive-analytical methodology, explained the philosophical-social, legal, and criminological foundations of this idea and some practical examples of it.
Keywords: Restorative Justice, Transformation, Dominance Structures, Community Justice, Social Justice.
Criminal Investigation of Serial Murders: Challenges and Solutions
Ali Rezaei Gelvardi (Corresponding Author)
M.A in Criminal Law and Criminology, Faculty of Law and Political Science, Mazandaran University, Babolsar, Iran.
Azadeh Sadeghi
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, Mazandaran University, Babolsar, Iran.
ABSTRACTS
Serial murder is a rare phenomenon in a rare type of crime (murder), but despite this, the process of criminal investigation of serial murder cases in Iran has always faced severe weaknesses and challenges, and in most cases, such as the murder case, In the serials of Mohammad Basijeh, Saeed Hanai and Farid Baghlani, the existence of a survivor of a crime has been the main factor in the discovery and arrest of the criminal. This research is applied in terms of purpose and descriptive-analytical in nature. In this research, first by using library tools (dissertation, article, etc) to collect information and extract data from available sources, then the sources are analyzed and conclusions are drawn. It comes The results of this research showed the role of psychologylegality and the necessity of the presence of a forensic psychologist alongside the crime scene analysis team in identifying the killer’s motive, drawing his criminal profile and providing the appropriate interrogation technique, and using modern methods of criminal investigation such as criminal and geographic profiling, data technique The study and method of analyzing the link of the case is very important in the early arrest of the criminals of such crimes.
Keywords: Criminal Investigations, Serial Murders, Legal Sciences, Crime Detection, Victimology.
Media Representation of Infanticide by the Father and Demands for the Necessity of Reviewing the Legal Sentence
Leila Rahnama
M.A in Criminal Law and Criminology, Faculty of Humanities, Qom Branch, Islamic Azad University, Qom, Iran.
ABSTRACTS
The punishment for the intentional murder of a child by the father in accordance with the Islamic Penal Code of Iran is receiving blood money and ta’zir (Discretionary Punishment). In Islamic jurisprudence, the sentence of prohibition of fathers’ retribution has adherents and opponents. The legislator trends to the adherents and has recognized the mentioned sentence. The legislator has announced that one of the conditions in related to Revenge (Avenge for Blood), is discarded of the paternity between the child and father. The mentioned rule has always been challenged and criticized by criminal lawyers and so far they have not succeeded in changing the will and opinion of the legislator in this regard. Due to the proliferation of mass media, public opinion is strongly influenced by media representations of father-child killing, and such crimes are often reported by the media. People’s awareness of the non-retribution of the father through the media has consequences that create the need to reconsider. It seems that it is possible to reconsider and modify the legal rule prohibiting in relation of the father in case of intentional killing the child and to persuade the legislator to change and modify it with the help of experts in jurisprudence. This research has been done by descriptive-analytical method based on library resources and news databases.
Keywords: Media Representation, Child Murder, Prohibition of Fathers’ Revenge, Public Opinion, Infanticide in Islamic Jurisprudence.
Internal and External Mechanisms of Companies and Organizations in Preventing Economic Crimes
Seyed Rreza Hossinibehbahani
PhD Student in Criminal Law and Criminology, Faculty of Law, Islamic Azad University, Qeshm Branch, Qeshm, Iran.
Sohrab Salahi (Corresponding Author)
Assistant Professor, Department of Law, Faculty of Law, Imam Hossein University, Tehran, Iran.
Mansour Atasheneh
Assistant Professor, Department of Law, Faculty of Economics and Social Sciences, Shahid Chamran University, Ahvaz, Iran.
ABSTRACTS
Prevention of economic crimes in organizations and companies is one of the most challenging issues in criminal policy and basic and macro strategies of many countries. In Iranian law, the discussion of economic crime and its prevention is one of the important issues in this way, adopting regulatory mechanisms such as reviewing, drafting, enacting and enforcing clear laws, comprehensive monitoring of such laws, in Considering severe punishment for delinquent managers requires the employment of lawful, responsible, clean and competent managers, in order to prevent corruption from entering government systems, companies and organizations. Descriptively, we have examined the internal and external organizational mechanisms of companies and organizations in the prevention of economic crimes. In this research, an attempt has been made to examine the various aspects of the issue, laws and regulations, challenges and gaps in this way and different mechanisms. In order to explain the subject as much as possible, how organizations work, the mechanisms used both internally and externally have been studied. Unfortunately, the legislator has passed scattered and weak laws, which have many shortcomings and shortcomings, and not only did not help reduce the incidence of crime, but also made it difficult to overcome this type of crime.
Keywords: Economic Crime, Crime Prevention, Crime Prevention Mechanism, Iran, Crime Prevention Criminal Policy.
Feasibility of the Authority of Will in the Rights Governing the Personal Status
Mohammad Babolhekami (Corresponding Author)
PhD Student in Private Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
Farhad Parvin
Associate Professor, Department of Private Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
ABSTRACTS
In recent years, the countries of the world have expanded this principle in personal and family matters; which has led to greater coordination of their legal system and reduced conflicts. The European Union is a pioneer in this field by approving the Rome 3 Convention and the Brussels Regulation. Iranian law has considered the principle of the sovereignty of the will only in contractual matters and has been silent about personal circumstances An important question raised in this article is why should this principle be used in personal situations? What are the conditions for using this principle? What is the scope of the law of choice? In response, we should state the hypothesis that increasing coordination and reducing conflicts between countries will strengthen legal stability and interests of individuals, which is one of the important results of using the principle of sovereignty of will. Individuals are only able to use the laws related to the subject (residence, citizenship and seat of the court) as the competent law. It is possible to use the law agreed by citizens in personal situations as long as it does not conflict with public order, good morals and human rights, otherwise the court should not implement it. Now, it seems that according to the benefits of this principle in personal situations, it is better that the legal system of Iran also uses it under certain conditions.
Keywords: The Principle of Sovereignty of Will, Personal Status, Legal Stability, Supplementary Rules, Citizens’ Interests.
The Eligibility of Commercial Companies and the Relationship of the Subject of the Company with it in the Laws of Iran, Egypt, and Lebanon
Fatemeh Rajaei
Assistant Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Studies, Hakim Sabzevari University, Sabzevar, Iran.
ABSTRACTS
The specific characteristics of legal entities, including commercial companies, have made them distinct from natural persons and their capacity deffers from natural persons. Determining the scope of a commercial company’s is important because it determine the company capacity and scope of the company rights and duties and the powers of its members (general assemblies, board of directors, etc). There are two views on this issue in the Iranian legal system; some limit the company’s capacity to its scope, but others do not consider the scope of the company to be a limiting factor of the company’s capacity and believe that the company has a general capacity. This paper firstly studies the company’s capacity in Iranian regulations and then, compare it with the Egypt and Lebanon regulations, and finally concludes that in these countries, companies have a full capacity and their capacity did not limit to the scope of the company.
Keywords: Eligibility, Subject of the Company, Actions of Managers, Legal Entity, Commercial Companies.
The Condition of Belonging the Mortgaged Property to the Mortgagee Providing Non-Fulfillment of the Debt on Time
Mahdi Hamze Howeyda (Corresponding Author)
Assistant Professor, Nahavand Higher Education Complex, Bu-Ali Sina University, Hamedan, Iran.
Jamshid Shiri
PhD Student in Private Law, Faculty of Law, Kharazmi University, Tehran, Iran.
ABSTRACTS
The condition that the mortgaged property belongs to the mortgagor in case of non-payment of the debt on its due date is one of the conditions included in the mortgage contract. There is a difference of opinion regarding the status of this condition in Iranian jurisprudence and law. The nullity of this condition is a dominant and overwhelming theory among Imamiyyah jurists, but there is a difference of opinion among jurists in this regard; This legal act is essentially a type of performance guarantee (bond) regarding the mortgage obligation, which is included in the main contract as a condition attached to the contract. But under which types of conditions are included in the contract, it seems that more consideration is required. Considering the nature of the condition of the adjective, it is obvious that the inclusion of this condition is excluded from the subject of the discussion and the issue should be investigated regarding the condition of the result and the condition of the verb; This condition can be proposed in the mortgage contract in the form of a result condition as well as a verb condition, and each of them has its own status and effects, and at the same time, it can be a type of obligation that the parties have foreseen for breach of contract. In the judicial procedure, even without consensus, the tendency to invalidate the condition of the mortgagee’s belonging to the mortgagor is strong. According to the articles of the registration law and the principles of legal interpretation, it seems that the principle is on the validity of such conditions, unless it is proven, the principle of repudiation has not been observed.
Keywords: Corollary Condition, Mortgaged Property, Transaction with the Right of Restitution, Suspended Sale, Temporary Mortgage.
Civil Liability of Banks for Sayadi Checks
Ahmad Reza Davarpanah
M.A in Private Law, Faculty of Humanities, Marvdasht Branch, Islamic Azad University, Marvdasht, Iran.Mehdi Kazemi Moghadam (Corresponding Author)
Assistant Professor, Department of Private Law, Faculty of Humanities, Marvdasht Branch, Islamic Azad University, Marvdasht, Iran.
Jamileh Jafari
Assistant Professor, Department of Law, Faculty of Humanities, Zarghan Branch, Islamic Azad University, Zarghan, Iran.
ABSTRACTS
The new law on issuing checks has been approved by the Islamic Council parliament on November 4, 2018 in 25 articles and 20 comments. This law includes many innovations compared to the previous laws, of which Sayadi checks are the most important. In fact, in order to avoid the problems that may have arisen for check issuers and holders in the past, the legislator has replaced these types of checks with the old ones, and for its implementation, he has defined tasks for the banks in Three the registration of issuance and the payment of checks, white the investigations, we realized that despite the fact that the above-mentioned law has doubled the duties of the banks in relation to the checks, it has not been successful in terms of their civil liability, and it is limited to specific cases in the check issuance law. Therefore, in order to further study the relationship with the civil liability of banks in the new check issuance law and in special laws, the civil liability of banks has been investigated in relation to Sayadi checks. The result of his research showed that banks are responsible for the loss caused by failure to perform work based on the provisions of paragraph c of Article 35 of the monetary and banking law, article 8 of the civil liability law, and Note 5, Article 5 Repeated of the Check Law. They are responsible for registering, issuing and paying Sayadi checks. That the basis of this responsibility is based on the theory of fault and in some cases it seems to be a pure theory, Venice It saemes the type of this responsibility is contractual in all cases.
Keywords: Bank, Fault, Check, Damage, Civil Liability.
Effect of Loss Distribution on Deterrence Function of Tort Law
Negin Gholami (Corresponding Author)
Assistant Professor, Department of Law, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran
Mohammad Molodi
Assistant Professor, Department of Law, Faculty of Literature and Humanities, Bu-Ali Sina University, Hamadan, Iran.
ABSTRACTS
In the tort liability, damages are distributed by modern institutions such as insurances, strict liability of companies or traditional and jurisprudential institutions such as kinsmanship. Although these loss distributive institutions have advantages such as assuring compensation of the injured or reducing the injurer’s burden of compensation, some analyzers believe that the facilities such institutions provide to the two parties can deteriorate the deterrence role of the civil liability and promote imprudence. Therefore although these institutions are in line with the tort liability system in terms of compensating the damage, they have a reverse effect in terms of deterrence and promote imprudence. In contrast, there are reasons that reject critique of the mechanism of these institutions. The reasons include the existence of other deterrent factors along with tort liability such as the sense of misrepresentation of individuals, the ineffectiveness attributable to the tort liability system in the realization of deterrence and the prediction of mechanisms in loss distributive institutions to prevent imprudence. Hence, the distributive institutions generally, unlike the initial perception, if don’t have a positive effect on deterrence, they don’t have at least negative effect on it and did not expedite the spread of it.
Keywords: Loss Distribution, Tort Liability, Deterrence, Insurance, Strict Liability.
Doubt in the Legal Capacity of Smart Contract’s Parties and the Possibility of Applying the Principle of Correctness in the Assumption of Non-Qualification
Mohammad Hasan Taj Langerudi (Corresponding Author)
PhD Student in Private Law, Faculty of Law, Institute for Management and Planning Studies (IMPS), Tehran, Iran.
Farzin Dehdar
Associate Professor, Faculty of Law, Institute for Management and Planning Studies (IMPS), Tehran, Iran.
ABSTRACTS
As one of the relatively new topics of the technology world, the smart contract has different angles and dimensions in the field of conclusion and execution, which must be analyzed from a legal perspective. This contract is implemented on the platform of software such as Ethereum and has features that blockchain technology benefits from. The smart contract is concluded and executed without the parties’ capacities being verified, and this is considered one of its most important legal challenges in the conclusion stage. In the forward research, it is tried to introduce the mentioned feature in detail, and after providing solutions to solve this legal defect and verifying the eligibility of the parties, the criticisms of it will be expressed and it will be explained that the anonymity of the parties as one of the certain features of the smart contract should be recognized. Then this matter is subject to jurisprudential and legal scrutiny, whether it is possible to invoke the principle of correctness despite the lack of competence of the parties in the smart contract, or whether this transaction should be considered invalid.Keywords: Blockchain, Ethereum, Smart Contract, Capacity, Principle of Correctness.
The Procedural Difference between the Main Third-Party Intervention and Derivative in the Preliminary Stage and Reconsideration
Majid Aziziyani
PhD in Private Law, Faculty of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran.
ABSTRACTS
Judicial supervision is considered as integral part of the process. In two legal systems of Iran and France, these two Fights are acceptable in the appeal stage. A comparative study of the two entities in the two legal systems shows that in most rules they are similar and there are slight differences between them. Third-party involvement in the appeal stage is one of the exceptions to the principle of prohibition of interference by persons other than the parties to the case The deadline for a third-party litigation in Iran is until the end of the first hearing, while in France until the end of the investigation. The condition of acceptance of a lawsuit in France is the transformation of the lawsuit. The transformation of litigation occurs when new facts of truth or a are discovered. The jurisdiction of a judge to obtain a third party under certain conditions in French law is another difference with Iran, while in Iran this is not possible. Some of the rules of third party intervention in the appeal stage are not mentioned in the law and must be determined by law. Third-party Claims in French law are admissible upon termination.
Keywords: Third-Party Claims, Third-Party Involvement in Appeal Stage, Competence, Court Supervision, Litigation Parties.
Protection of Privacy and Personal Information: A Comparative Study between Iranian Law and Canadian Law
Mohammadhossein Taghipour Darzi Naghibi (Corresponding Author)
Assistant Professor, Department of Private Law, Faculty of Law and Political Science, Mazandaran University, Babolsar, Iran.
Seyedeh Tahere Moosavi Khatir
PhD Student in Private Law, Faculty of Law and Political Science, Mazandaran University, Babolsar, Iran.
Mehdi Taleghan Ghafari
PhD Student in Private Law, Faculty of Law and Political Science, Mazandaran University, Babolsar, Iran.
ABSTRACTS
The right to protection of privacy and personal information is one of the rights and freedoms that its aim is to protect the rights of individuals and respect to fundamental human rights. Identification the right to privacy and personal information and protecting it in law and determining the legal and criminal sanction, especially considering that this area is full of many problems can be challenging. The purpose of this article is to examine the protection of privacy and personal information and for understanding the laws in this area better; a comparative study has been conducted. The question of this article is what is the legal framework for the protection of privacy and personal information in Iranian and Canadian law? And Has Iranian law developed in line with other countries? In This research has studied the relevant sources and collected information by descriptive-analytical method After examining the concept of privacy, the protection of privacy and personal information in Canadian and Iranian law will be examined in detail, and finally it will be stated that a comprehensive and unified law is required in Iranian law. It is worthy, as progresses that accrue on this issue in other countries law in recent years, a single and comprehensive law should be formulated in Iranian law and legal gaps in this issue should be eliminated.
Keywords: Privacy, Personal Information, Iranian Law, Canadian Law, Comparative Study.
