PRIVATE LAW STUDIES
Year:2010 | Volume:40 | Issue:2|Papers Count:22

The good faith, on one hand, is a familiar word and, on the other hand, is a complicated concept that there is no specified definition for it in the legal field. This ethical institution which has been recommended permanently by the divine friends, nowadays, plays essential role in the positive law. In English law, although some authors accept the good faith in the performance of contracts as a general rule, but this view has been criticized by the others. They accept it only in exceptional cases. In Iranian law, although the basis of some rules in different codes is performance of good faith but its acceptance as a general law is questionable.

The use of Trade Marks in e-Commerce causes challenge between "Territoriality of Trade Mark rights" principle and "Global Nature of Internet". It is our aim to find some solution to prevent sacrificing one for another. Prohibition of all kinds of using a trade mark with the allegation of being some opponent right in a special country leads to preference of Territoriality of Trade Mark rights principle to Global Nature of Internet. So any Prohibition is limited to the place in which the right exists. Determining such a place is a hard job because internet is borderless. At the same time issuing some award from a court in the country of origin to a trade mark should not result in prohibition of using the mark on the net at all because this means negation of Territoriality of such right.

During the occupation of Palestinian territories by Jewish settlers, Palestinian civilians became the main victims of the conflicts and the targets of deportation from their home territory. Collective and individual deportations and transfer by the occupying power of its own nationals into the territory it had occupied have frequently been carried out in the Palestinian territories by Israel as an occupying power. In this paper, these actions have been scrutinized in relation to the Fourth Geneva Convention of 1949, the United Nations Security Council and the General Assembly Resolutions, the Statute of the International Criminal Court and other international law rules and documents.

The opinion of Islamic jurists are different on the subject off inheritance of Diya'(blood money). On the other hand, the matter of inheritance of Diya' has important legal effects from the viewpoint of tort law and general theory of obligations. These are the main questions: Who are the heirs of Diya'? Does homicide by error, like murder, is an impediment to Inheritance of Diya'? In case of murder, are the heirs of propostius allowed the choice between Qisas and Diya' or the only obligatory remedy for murder is Qisas and it will be transferred to Diya' by mutual consent of murderer and victims' heirs?The article purports, While examining different opinions of Islamic(specially Shiite) jurists concerning these questions and some others, provide due solutions to protect the rights of tortfeasors, victims, heirs and creditors of propostius.

The philosophers in the medieval time and their ancestors', ancient roman philosophers, believed that the ultimate prosperity for the human being would be achieved through the whole society's intellectual pursuits orchestrated by them. Later on the 15th and 16th century, there was a gradual change in the philosophical thoughts leading to the belief that the ultimate happiness for the human being is nothing but the humanity itself and nothing beyond its living needs. Therefore the government belongs to every single member of the society who shall provide them. With service This article is analyzing the modem time achievements of the philosophical shift which caused the "right" and "duty" centric beliefs as the grass roots of today's bill of Human Rights.

The world of law has been dominated by waves of codification or recodification and by currents of harmonization and unification. Innumerable institutions, not only in Europe but around the globe including in Iran, try to bring legal systems together, and to suggest uniform laws. Such attempts necessarily rely on comparative law as the first methodological tool. The European experience is an illustrative of the role being played by comparative law at regional level. In line with this argument, comparative law serves international law in three different ways: first, it helps national lawyers to find out common rules as foundations for the unified global legal system. Second, for the sake of international justice, comparative law helps international tribunals dealing with international disputes not to declare a non-liquet. Third, comparative law plays a complementary role for international law through resort to 'general principles of law recognized by civilized nations' in filling possible gaps and making reforms in existing laws.

Scientific improvement has affected and changed all aspects of human life including the circumstance, type and the manner of crimes perpetration. One of the most important crimes that, considerably, its manner of commitment has been complicated and various is "espionage" and its related crimes. One of the approximate new methods that enemies have employed for gathering the information against Islamic Republic is named "elicitation". For increasing the use of this method, legislator concerned about it and in 1375, for increasing the care and attention of governmental official in protection of the classified information, considered their negligence in this area as "elicitation" crime. But the way of writing and arranging the statute cause some difficulties and ambiguities. In this paper, we refer to the history of the subject and define the crime and analyse its relative legal rules.

About the bases of validity of "expert's advise" existing of "tradition of learned" upen reference to "experts" has not been doubted and it has been accepted that this tradition has been confirmed with the legislator of Islam. However, some of jurists have emphasized upen concluding "confidence" frame the experts advise. Others have beloved the experts advise as a kind of witness, so they thought that the conditions of witness were necessary about the experts advise.

Making up a new category of punishments under the title of "Preventive Punishments" has been the subject of a long debate since 1368when, during the first decade of the Islamic Republic of Iran the issue of "discretionary punishment" was at stake. This was because the discretionary nature of such punishments on the hand and absence of the concept of Limitation under Shi'a jurisprudence one other hand has led to a conflict between the perpetual natures of these punishments once introduced as law and the concept of limitation. The invention of this title for punishments of certain crimes, alongside the concept of "discretionary punishments" was seen as an escape route from this above conflict and "jurisprudential" deadlock. In this short paper, we have come to the concussion that making up "Preventive Punishments" alongside the "Discretionary Punishments" does not have a basis under the Islamic jurisprudence and does not find any support from the fatva issued by the Founder of the Islamic Republic, Imam Khomeini, peace be upon him. The concept of preventive punishments not only suffers from the lack of a normative basis and legitimacy, but it also lacks the cohesion and in practice could not be distinguished from the discretionary punishments and has led to may contradictions and confusions. This unjustified initiative to a great deal has undermined the legislative process of the criminal justice system of Iran. Therefore, the abolition of the concept of preventive punishments as a counterpart for discretionary punishments is recommended. In fact the concept of discretionary punishments has the potential to accommodate any social and legal consideration, including the issue of limitation without the need for making up a new category of punishments and we can stay within the framework of law.

Enforcement of civil claims dictums is based on conditions and ceremonials that stated in civil dictums enforcement act. Deadline respite in dictums enforcement is unreasonable and athwart goal and philosophy of procedure. Also it's against the indispensable of dictums. After Islamic revolution, legislator ordains regulations that give extra Deadline to some governmental and public organizations to enforce dictums that determined athwart them. With regard to the title and context of these acts it's necessary to know which organizations are being abject it. Another question is that by legislate acts such as general computations code, these regulations that ordain special circumstance are valid? With the assumption of credit, how executer organizations can delay enforcement of dictums? And what are the symptoms of infringement? This paper discusses these topics.

Based on this fact that the rate of crime and violence in Iran, specially in karaj as the more populated satellite City, is higher than many other Countries; the essay tries to analyse the crime spacially and recognise high crime places and the criminals residence in karaj. In addition, it evaluates the impacts of the Charaters of the crime zones on legal offence. In this survey, the Cohensive analytical methods and Crime opportunities based on random Sampling have been used. the results of the survey show that there is a meaningfull relation between Criminality and the specification' of the place, such as darkness and retie redness. In addition high immigrant population of karaj has a tensetive impact on Commonality. This phenomena Coursed a high Criminality in marginal districts of karaj.

Civil liability in electronic communications is one the most important issues of Information and communications technology (ICT) law. Civil liability may be arisen from different causes such as copyright and trade mark infringement invasion of privacy and defamation. When discussing civil liability, two different civil liability systems may be considered: direct and indirect civil liability. In electronic transactions, the roll and legal situation of electronic communications service providers and intermediaries (such as internet service providers (ISPs), access service providers (ASPs) and host service providers) is very important. Liability of intermediaries and service providers are typical examples of indirect liability. On the other hand, indirect liability is of following types: contributory or vicarious. So, principle discussion in this article is to study about general principles of intermediaries' liability. for this, we have studied legal system of Iran as well as some other countries such as USA, Australia, UK, France, European Union and many international documents.

Registration institution guarantees economic and legal security. Human societies always noted this point and created several registration systems. Land title registration should be simple, reliable and well suited to the society it serves. With regard to social conditions, every society fallows from one of these systems.Iranian registration system has enough capacity to establish legal security, but doesn't overlap with owners, government, and society's interests and there are some problems and challenges that require amending registration laws. Then it must to submit exact solutions that terminate challenges about interpretation and application of registration regulations. In this thesis, among comparative perspective, is tried to determine the sort of Iranian registration system about real properties and submitted some solutions and recommendations.

In this paper the debates about the philosophy of corporate insolvency law by American and English commentators is examined. It is argued that the economic approach, which supports the only creditors' right, and traditional approach, which supports different interests, are two main ideas that have been discussed by American and English scholars. It seems the official reports in D.S more or less represent the dominance of traditional approach and the reports in England nearly represent the economic approach. In conclusion, it is argued that the supporting of creditors' right and the supporting of the concept of capital could benefits public interests as well. And this approach could be in line with the rehabilitation and rescue process if it maximises the company's assets.

According to the reason and philosophy of powers separation, scientists and experts in public law mention it as a guaranty for security and prevention against despotism. Therefore the principle of the powers separation is one of the most vital discussions about natural rights of nations which are due to controlling political power and preventing power centralization. In Islamic republic" of Iran the main patterns of political system is based on separation of powers' principles and aims to prevent power centralization and related corruption. In this essay for more acquaintance with powers separation in west and also present Islamic scientists ideas. On the other hand we will discuss the different types of separation of powers and founded systems.

Any litigation is composed of a series of facts and rules the distinction between them is of great import. One may distinct the factual elements of litigation as "questions of fact" from the legal elements thereof classically called "questions of law". The parties to litigation as well as the judges who adjudicate the litigation always need to keep this distinction in mind to avoid misleading the process of adjudication. "The due process of law" requires that both the litigants and the judge play their own role in the proceeding; while the litigants are to deal with the questions of fact, the judge shall exclusively determine the questions of law. This essay tries to draw a clear and pragmatic border between the questions of fact and questions of law and present a logically well-defined criterion appropriate to apply by the tribunals and judicial officers in this effect.

Ensuring The Security in Civil aviation - as a Primary factor in economical and industrial development - is the major concern of international community. Pursuant to the serious challenges in this sector after terrorist events of 11 September 2001 in the United States, International Civil Aviation Organization (ICAO) as the most important organization relating to the international civil aviation, has designed and developed new measures in this respect ,also, the improvement and reinforcement of the prior Standards and Recommended practices have had an influent role in intensification of measures relating to security aviation.

In order to protect individual and society from deviations and indecent activities, there are appropriate penal laws like hadd and ta'zir in Quran and Traditions to halter administrative violators and social corrupters. In this regard, imprisonment in different forms has been considered as one of correctional punishments in narratives texts of Shiite and Sunnite. This article submits not only a comprehensive report of the considerations regarding imprisonment of governors, spurious physicians, traitors to the public treasure, hustlers, cuckolds, and so on, but also an extensive study on the quality and quantity of this kind of. Punishment according to the Shiite and Sunnite narrations. The deliberating of Shiite and Sunnite's view concerning imprisonment and finally offering a new theory on the basis of Quranic narrations and juridical evidence are the other goals of this study.

Analysis based on consequential argument is end - oriented analysis. The Main purposes of the fourth principle of the constitution of Islamic republic of Iran are achievement of legal order and guarantee the hierarchy of superior norms. Therefore, the constitution must be protected against legislature, but it must be protect against not only other branches and governmental organs. In other hand, the guardian council protects principles of constitution against legislature. This article try to present this argument that consequential analysis is useful about protection of constitution principles against political and other branches of government.

International law, either conventional or customary, appears to be fair and just according to international jurisprudence. Nevertheless, it is impossible to find invariably fair solutions in all international cases merely based on positive laws due to exceeding intricacy of international disputes, variety of circumstances, etc. Consequently, flexibility of equity, consisting of "equity as a restricted concept" and "ex aequo et bono", is absolutely necessary to solve the mentioned problem. Equity plays three different roles: Infra legem, Praeter legem, Contra legem. The first one conforms to the restricted equity whereas the latter ones correspond to "ex aequo et bono". The present article intends to clarify these roles through giving an account of the concepts.