PRIVATE LAW STUDIES
Year:2011 | Volume:41 | Issue:1|Papers Count:22

a tug which, according to towage contract, renders salvage services to tow, is not, principally, entitled to reward, although she has, practically, rescued the tow from danger. Notwithstanding this, section 176 of Iranian Maritime Act says: a tug has no right to remuneration for assistance to or salvage of the vessel she is towing or of the vessel cargo, except where she has rendered exceptional services which cannot be considered as rendered in fulfillment of the contract of towage. if the nature of services rendered by tug, conform with the section, the voluntary character of acts is respected and contrary to opinions propounded, the entitlement of tug to remuneration is based neither on the implied term of towage contract nor on legal compensation due to salvors. Moreover, during salvage operations, the towage contract is not, necessarily, suspended.

The will of international community to implement justice and to put an end to the impunity for the perpetrators of crimes against humanity, war crimes and the genocide lead to the establishment of International Criminal Court (ICC). The ICC is expected to prosecute and punish international criminals in order to prevent committing such crimes in the future. Following the creation of the Court in 2002, the United States which had active participation in the establishment of the ICC and has been involved in military and non-military missions around the world, determined to take measures to prevent prosecution and punishment of its nationals participating in such missions. In this article, a legal and analytical discussion has been made regarding such measures through internal and international instruments.

The theory of efficient breach states that it is socially useful to breach a contract whenever the breach would leave no party worse off, while leaving at least one party better off. In other words, economic analyses of breach are mainly concerned with situations in which breach is Pareto-superior, rather than just overall profit-maximizing. In contrast with moral theories that hold that breach of contract is morally wrong insofar as it requires one party to break a promise, the economic view regards the contractual obligation as an obligation either to perform or to pay damages in an amount equal to the expected benefit of performance. It is generally accepted that a promisor is under both a moral and a legal obligation to perform a bargain promise. However, the theory of efficient breach-which is widely accepted in law and economics, and has obtained a toehold in mainstream legal sources-takes the position that breach is acceptable, and indeed should be encouraged by contract law, where the promisor’s gains from breach exceed the promisee’s losses.

In this article economic loss means those losses occurring independently of physical damage to things or to a person's body or health. There are two main positions about reparability of these losses: In some countries like French, Belgium, Spain, Italy and Luxembourg as a principle rule economic loss is recoverable and there is no difference between economic loss and other losses. But in some other countries like Germany, England, America, Canada, Switzerland, Scandinavian countries and Austria there is a rule of no-recovery in tort for pure economic loss and such losses is recoverable only in exceptional cases. Considering some laws in Iran's legal system and their foundations in Islamic jurisprudence, we can set Iranian law in last group. It seems that considering social and economic observations this is a positive feature of Islamic law and Iran's legal system and not its defect.

One of the important subject is the legal status of great dowry; if it is a designated property, the agreement is valid because there is not any limitation on the dowry and spouses can fix it at any amount they may wish in accordance with Article 1089 of code civil. If is a general nature property and the husband has the power to deliver it, the agreement is valid but if he has not the power, the agreement is void because the deliverability of general nature property is essential condition for it’s validity. In such cases, the wife has right to demand reasonable dowry, if the husband has the power to deliver it or if he has not, she has right to demand the specified dowry to the extent that he has the power to deliver it but not for the remainder. Although some suggestions are presented recently for solving the problem great dowry, but to solve the problem fundamentally, it is necessary to be changed viewpoint of wife to her dowry and the approach of judicial procedures to the great dowry.

The least developed and developing countries constitute two third of the members the World Trade Organizations (WTO). These groups of countries have different views and concerns on international trade issues. As far as development is concerned, they have different needs and their economic system is often weak and fragile and therefore, they need extra protection. The WTO agreements contain special provisions for special and favorable treatment for these countries. The treatment includes longer terms for the implementation of the obligations under the WTO agreements, special measures for facilitation and expansion of the trade opportunities and technical assistance. The policy of special treatment is theoretically a right approach for the process of integration of the developing and least developed countries into this integrated and multilateral trade arrangement which allows more interactions among the members of the WTO. However, the experience of the last decade shows that there are serious challenges for the implementation of this policy. The rules for preferential treatment are not very clear and require more clarification to make them more practical and enforceable.

Although electronic contract consists of offer and acceptance, its specific characteristics and the fact that parties to it state their intention in a virtual world i.e. Cyber-space, and specially given consumer's need of enough protection in this environment, new rules have been included in laws concerning this kind of contract which seek to make sure that consumer has been well informed before accepting the offer and making the contract. In this paper, first are studied the offer and its rules and second come the acceptance and some issues about it in electronic consumer contracts.

This essay studies theory of lex mercatoria which is based on the assumption of existence of a third legal system along with the national and international legal systems regulating international commercial relations. For this purpose, the essay discusses the backgrounds of creation and emergence of the theory, its narrow and broad meaning, elements of which and the extent that it has been recognized at the international and national levels i.e. by national legal systems including Iranian legal system. For the sake of impartiality, the last part has been devoted to criticisms raised regarding the existence and sources of lex mercatoria, the suggested alternative and a final evaluation.

The writer in this article is going to illustrate that human rights and humanitarian law are applicable on detainees of Guantanamo Bay. Of course, we should know that although scope of our Guantanamo Bay discussions is about Guantanamo Bay detainee but our reasons are applicable on similar occasions. The writer does his best to refer to General Comments of Human Rights committee This can increases the power of our reasons and shows the practice of this committee.

Though, today, in the light of the idea of correctional justice and due to presence of the international and regional binding and guiding documents, "victims compensation by the State" has become one of the important tools of criminal policy in most countries in Europe and Northern America, it has no proper place in the legal system of Iran. In this regard what that may be understood from establishment of governmental and non-governmental institutions is that the idea of protecting the insolvent criminal is of more importance than the idea of protecting the victim. But, in spite of theoretical and practical challenges, unused capacities of the Constitution as well as juridical principles concerning this issue are able to change state compensation to a rule (instead of an exception) in Iran.

A utility model is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his authorization, for a limited period of time. In its basic definition, which may vary from one country (where such protection is available) to another, a utility model is similar to a patent. In fact, utility models are sometimes referred to as "petty patents" or "innovation patents." The present paper highlight the different aspect of the utility model and in final examines the potential use of utility models in developing countries.

The United Nations has a multiplex criminal policy to fight against genocide, judicial criminal policy being one of the aspects of this policy. Rationally, justice requires that the guilty of genocidal acts be punished, the means of redress be provided for victims of such crimes and finally, the international peace and security be established. UN judicial criminal policy regarding genocide is relatively constructive and positive, but generally speaking, full effectiveness of UN criminal policy concerning genocide, depends not only on the coordination and solidarity of the other facets of this policy, i.e., preventive, legislative and participative aspects, but also on the effectiveness of each and every one of them.

Like other countries, there are various conditions for election candidates in Islamic Republic of Iran. Since the president enjoys a very significant role in Iran’s political system, having extensive powers, the presidential qualifications have been did down in the country’s constitution. principle (115) provides: ” The President must be elected from among religious and political personalities possessing the following qualifications: Iranian origin, Iranian nationality, administrative capacity and resourcefulness, a good pastrecord, trustworthiness and piety, convinced belief in the fundamental principles of the Islamic Republic of Iran and the official madhhab of the country” the above said qualifications have been exactly re-emphasized in Art (35) of the Presidential election law of Iran. First, we have tried to deal separately with one of those requirements and finally, some deficiencies and their solutions are raised.

A continually absent person is “a person which is almost a long time laps from his absence and there is not any news behalf him” (article 1011 of civil code). The rules and effects of absence of continually absent person which chapter fifth of civil code specified to it, are mostly derived from jurisprudence, and in fact the base of civil code in this part is Emamie jurisprudence. Absence of absent person which is known as discontinuous absence in the jurisprudence has influences on property and marital status, in aspect of remaining marriage, of absence person. What is enquiring in these lines is the nature of absence person spouse divorce and its effects.

Socialization of the Law means the movement from an "individual" to a "social" matter, from “right” to “function”, from “subjectivity” to “objectivity”, from “metaphysic” to “reality” and in sum socialization of law means to admit that law is a property for all. The state is important, not only as a guarantor of the process, but also as an active partner to make it developed. However, today in the age of globalization of law and of legal neo liberalism, the political and social theories and especially the theories concerning new social justice, insist on the fact that the society itself can help achieving the way equality and freedom can interact.

Many peoples think there is neither rulers nor rules in the internet and it seems to be a hodge bodge. Although it is not totally false, but is not completely true and includes some ignorance of facts which affect this space. As the people now a days deal with the internet, it is necessary to obtain some information of facts relevant to it. We will, in this assay, show that there are the both powerful rulers in the internet and views of them that are mixed with the technical points and protocols.

The respect of property has recognized by the grate legal systems. Despite of the recognition of this rule, there are some exceptions. Expropriation, Nationalization, Confiscation and Requisition are exceptions of the respect which cause the disputes in foreign investment. However national and international authorities, have different argumentations in ether violations of the respect to determine the foreign investor damages. The conflict of interest between foreign investor and host state in consideration of the respect of property, encounters protection of foreign investment and protection of national interests. While a dispute came in, by analyzing of the rule and its exceptions we can chose the best settlement way. This research wants to analyze the respect of property, its exceptions and the precedent in foreign investment disputes.

Nowadays the environmental civil liability regime has wake fundaments. This article attempts to analysis the new evolutions in the fundaments of environmental civil liability theories in Islamic jurisprudence and environmental law.so this paper is divided in tow sections and one introduction. Part I study contemporary legal approaches in environmental civil liability and Part II explain and developed the Jurisprudence theories in this context. the principal thesis of this paper emphasis, despite of contemporary legal theories about environmental damage we can find especial legal theories in the Jurisprudence (or Islamic Environmental Law) can developed and protected environment in best way and provides alternative legal theories for modern environmental law.

Despite a long history of "compensation principle" in customary inter national law, this principle regarding environmental damages has attracted, only in recent decades, the attention of the international community, as well as international law experts. Accordingly, this basic question was raised that, what principles and rules govern on the compensation of environmental damages? Can we contain such damages under the general rules of compensation in international law, because of the extent and unique concept of such damages? In response to this question, although state practice and international judicial practice, in present conditions, indicate applying such general rules of compensation in this issue , based on some reasons, applying such general rules, does not seem suitable and practical. therefore, codification and development of a specific environmental compensation system is not avoidable.