PRIVATE LAW STUDIES
Year:2005 | Volume:- | Issue:66|Papers Count:13

1- "Privacy" is one of the worthwhile concepts of civilized legal systems. Right to privacy is regarded as corner-stone of human rights and correlates strongly with human dignity. Privacy aims to maintain and enhance respect for human's physical and mental integrity. There is also significant connection between protection of privacy and human being's autonomy, self - determination and freedom. Privacy restrains human being's from being as instrument for other's ends. It not only facilitates discharging the internal feelings and having intimate relations with desirable persons but constitutes one of the important elements of the civil society and its organizing principles. Realization of freedom of associations, expression and communications depends on protection of privacy.2- As a result of abovementioned functions, respect to privacy is stipulated in international and regional conventions and instruments regarding human rights. There is also many dispositions and requirements in national legislations which have prescribed respect to privacy. 3- Protection of privacy by inhibiting from interfering with private affairs, trespassing, eavesdropping, pcepingtom in one hand and prescribing "presumption of correctness" and "presumption of innocence" in the other hand, is one of the important doctrines in Islamic law which is cited, many a time in verses of the Holy Quran, Tradition (Sonnat) and Practice (Sireh). Of course, the term of "privacy" hasn't been used in that resources and Islam have "reductionary approach" regarding privacy that is, Privacy is protected through protection of other freedoms and rights, such as freedom from arbitrary intrusions and searches, respect for property rights and interests, presumptions of correctness and innocence.The present article, firstly introduces concept of privacy and its foundations and principles in Islamic law and comparative law, then discuses Iranian legal system's stance regarding privacy.This article shows that protection of privacy has historically had deep origins and roots in Islamic law and urged more over them in comparison to other legal systems. Hence without resorting or invoking to human right's conventions, Iranian legislature could impose protection of privacy but regretfully neither in Iran's laws and regulations nor in other Islamic countries privacy suffers from protections which deserves.

In this article, aims and functions of tort law in connection with the plaintiff, tort-feasor and community as a whole will be studied: Pecuniary compensation is the most important aim of tort law in connection with the plaintiff, but it is not the only aim and alongside it, to stop violation of the plaintiff's right and to protect him/her from sustaining a loss in the future are indisputable aims, Tort law as a means for compensation and protection of the plaintiffs rights has functional deficits, so in many countries these deficits have been resolved by use of private insurance or social security and compensation plans. Tort law can have an effective role in punishing the tort-feasor and deterring him/her from causing damage in the future and the victims vengeance is also bought off by compensation. But the following factors are major obstacles to reach this aim: the disproportion between damages and deterrence and the type and degree of fault; the existence of vicarious liability and strict liability; adoption of objective theory of fault and the possibility of liability insurance; imposing tort liability in the case of errors and accidental damages. For this reason, some scholars believe that these aims can be better achieved by other mechanisms like criminal sanctions or creating pecuniary motives and supervisory and disciplinary regulations. In connection with society, tort law can play the role of public law in guaranteeing the rights and liberty of citizenry, so that it can be used to apply pressure upon those who wield political, economic intellectual power. From the standpoint of the adherents of the economic analysis of law, tort law is an instrument to achieve economic efficiency and can do this in different ways: internalizing accidents costs to the activities that cause them (internalize externalities); deterring uneconomical harm by imposing liability on the cheapest risk avoiders (economic deterrence); minimizing the overall social impact of a loss by distributing it throughout society and widely as thinly as possible in different ways, mainly by affecting incentives to obtain private insurance or to self - insure (loss spreading).

One of the characteristic features of international law at the beginning of the 21st century is its significant development in the field of human rights of Women. There are many reasons why this is so, among which the strong relationship between the comprehensive development of a country and the participation by women in its economic cultural, social and political life is notable. To this end since the end of the world war II the establishment of the United Nations Organization whose function is inter alia to maintain international peace and security and to protect human rights including the right to development, the status of women has been the subject of more than twenty international legal documents each dealing with a particular problem of women. The 1979 Convention on Elimination of all forms of Discrimination Against Women (CEDA W), represents some of the efforts made by the international society on the status of women. Also, there have been many other developments in the filed in that there is now less argument as to the universality of the women's human rights. Though they are not complied with globally.Since discrimination takes root from cultures and traditions and since one of the main features of each civilization is certainly its view towards women members of the Committee monitoring the implementation of the CEDA W must be of high moral standing and competence in the field covered by the CEDSA W. Also its composition as a whole must represent different forms of civilization as well as the principal legal systems of the world. As a country with one of the oldest civilizations. Iran's accession to the CEDAW would be a great step for the rights of women.

TRIPS Agreement Prescribes the universal minimum standards of patent protection. Since, accession of TRIPS Agreement is necessary for the WTO membership, which ensures Iran's entry into the multilateral trade regime. Hence, a country like Iran, which wish to join WTO has to implement TRIPS Agreement. However, the implementation of TRIPS Agreement will have severe consequences on Iran's core areas of socio-economic development like health, agriculture, food, R&D etc. This article suggest the ways and means to safeguard Iran's national interest at the time of implementation of TRIPS Agreement by using certain space available within the TRIPS Agreement. In other words, this article examines the scope of interoperation of TRIPS Agreement to safeguard Iran's national interest to achieve its developmental goals.

After the victory of the Islamic Republic of Iran in 1979, and the ratification of the new constitution, a new phase of the political and social history of Iran initiated. This article studies the role of the constitutional law of Islamic republic of Iran in settling racial, tribal and religious conflicts.In this research, after the study of the circumstances of various tribal, racial, and religious groups in Iran, the existing mechanisms in the constitutional law for avoidance and solution of the challenges among the mentioned groups are analyzed. Among the strategies, the author has considered the approval of the principle of democracy and its necessities, such as realization of the peoples participation, respecting religious and cultural beliefs of the various groups, and the guarantee of the fundamental freedoms for the majority of the people of Iran.The new constitution of Iran has provided the necessary ground for the logical participation of the various groups of the people of the country. This participation has manifested in national elections, through which groups of people directly or indirectly choose political and governmental figures of the country, such as the leader, president, members of Parliament, members of Assembly of Experts for Leadership and the members of local councils.

There is no consensus on the validity of relatives and subordinates eye witness. In the past, civil procedure law viewed these relationships as a barrier to a valid eye witness.The new civil procedure law, however, has paid a lip service to this issue refer to jurisprudence sources as their main reference point. The best way to deal with problem is to review these resources, though even in these sources the issue is not explicitly dealt with. There are two main views; the traditional view, which rejects the relatives and subordinates eye witness and the modern view, which accepts it. The legislature has justified their law on the basis of the modern view. There exist other approaches and views on these sources. This article is a detailed review of different approaches and views on the relatives and subordinates eye witness.

There are different Kinds of defense available to the defendants in a civil litigation among which the counterclaim is of high importance. The simultaneous settlement of several but dependent and linked disputes between the parties to the litigation and consequently avoidance of contradictory judgments are the considerable advantages of counter claim. Based upon the above, the important is to bear in mind the concept and nature of the counterclaim as well as the preconditions to raise it. To this end, this essay is trying to elaborate the concept of counterclaim and to pose some new questions on the subject with due regards to the legal atmosphere of Iran.

Constitutional justice is the most important achievement of constitutional law in 20th century. Since this institution had been established, there have been many arguments about its necessity and the logic of compatibility of acts with the Constitution.Doubtless, the justification of this institution accompanies the particular emphasis on the effects on the legitimacy of its functions, so that it is very important. In addition, the relation between judicial review of legislation and democracy, and its role in the reinforcement of the  rule of law is remarkable. In the other word, all of the theatrical bases and functions of judicial review of legislation can be found within the frame of its justification.These justifications are divided into two general sorts: firstly, the justifications that are consisted of the necessity of the constitutional justice for the supremacy of the Constitution. Secondly, the justifications which are concerned with the necessity of constitutional justice for the democracy.The objective of present article is to look closely at all of these justifications. It is therefore essential to make clear exactly which justification is useful.

In order to create the interest and tendency in the international trade by mean of reduce effects of its more risks, the principle of free voluntary plays an important and effective role in the most part of international trade. Following the same concept, the international commercial arbitration being also a usual method specialize a wide place to the sovereignty of voluntary.International commercial terms of (INCOTERMS) are a combination of international terms that is published by Paris international Chamber of Commerce. And, it plays a valuable role considering the interpretation of terms, rights and duties of the contracting parties as well as the international trade affairs.Application of INCOTERMS and also its regulations in the governmental procedures as conditions of the contract have connection with the recognition and choosing them by the applicable law. However, in the international commercial arbitration for the reason voluntary tendency and lack of dependence to the special law (i.e. without necessary to its recognition in some cases), they will be applicable.So, the international commercial terms in the contracts of sale in the case of not referring the parties to it, the arbitrators' practical interpretation will be done directly and personally. And, this would be as an objective method of transnational commercial applicable law playing important and effective roles for facilitating a part of international trade.

According to the law passed in 1929, the offense of unlawful transfer of other peoples property is considered as a special type of the offense of fraud. In this offense as in the offense of fraud, the perpetrator transfers other peoples property to the third person with trickery and deception. While he, at the moment of transference, realizes that the property does not belong to him and is not authorized by the owner as well. But, he refuses to tell the truth. Of course, it should also be observed that according to this law, in the event that the transference, at the moment of transference, is aware of the fact, but remains silent, he would also have found guilty.It is noteworthy that in conformity with the above-mentioned law, under special conditions, the real owner of the property may also be counted as the accomplice.