PRIVATE LAW
Year:2018 | Volume:6 | Issue:21 |Papers Count:7

Article 11 of civil liability code has recognized the civil liability of the state, but this article does not explain clearly the realization of usurpation liability. The present study seeks to answer this question that if the state have had illegal domination on others property whether it can realize the usurpation liability? Some have hesitated about the possibility of usurpation liability to the state and they regarded the analogy of the state possessions with real persons possessions as an irrelevant analogy. In this writing after explaining and examining the basis of the view, in addition, analysis of court judgments we will conclude that there is the possibility of realization of usurpation liability to Illegitimate possessions of the state.

For the people of a society, “provision of the minimums” (Basic needs) is one of their rights, while it is also a duty upon the State. Not only does this legitimate and sensible right root in the divine religions, it also has roots in the thoughts of many justice-seeking philosophers and lawyers. The present article aims to examine this right from Iranian Law point of view by conducting a comparative study. This view, these days, is called Constitutionalization of private law. If this view is accepted, law-makers will change ownership law and it should be said that public law is related to this matter. It is concluded that having the minimum standard of life is a fundamental right for the members of a society and it must be fulfilled by the government as a responsible body. That is to say that the members of the public can legally claim this right, and condemn the government if it refuses to fulfil this duty.

The question of validity of the legal rule is one of the original questions in the legal schools dealt with a variety of responses. This article aims to explain the process of establishing legal rules in the Permissible area. The main issues addressed in this article are: What is the nature of the permissible area, why is there the Permissible area and how to adopt a legal norm? These issues have been evaluated in this article through descriptive and analytical research methodologies. Permissible area is an area in Islamic Sharia Law in which legal rules are established through the rational method and they are based on the concept of "expediency". Although the legal rules have a hypothetical nature, they are not pure hypothetical rules. Regardless of whether the legal rules are based on a hypothetical or real nature, "ultimate cause" could explain the connection between real proposition and legal rules. The advantage and disadvantage of the criterion of the legal rules depends on whether they are appropriate or inappropriate for the expediency". Religious interests, including the expediency of binding ordinances, the goals of religion and ethical issues, are among the issues that should be considered by the legislator in the process of legislating in the Permissible area.

Severe fluctuations in prices can cause a distortion of the balance of considerations, particularly in long-term contracts, such as construction contracts. One way to reasonably reduce the risk of unforeseen costs due to price fluctuations in raw materials and manpower is to design a contract price adjustment system. Since Iranian law is substantially influenced by the state economy, large-scale economic activities are carried out directly by the state. In general contracts, based on Article 23 of the Program and Budget Act, the general terms of contracts are the basis for drafting governmental contracts of which the standard model is FIDIC contracts. In general contracts in Iran, the government, as a regulatory body, has a direct involvement in the implementation of this type of contracts. Hence, the analysis of the nature and basis of moderation in the general terms of contract is subject to controversy. This article strives to examine the nature and basis of the moderation clause in general terms of the contract and to compare it with FIDIC contracts.

Arbitration is fundamentally an agreement to create private justice by non-state tribunal. In relation to the nature of arbitration, there is no consensus and the nature of this institution has been for a long-time subject to challenge and arguments for and against it. In this respect, there are four theories, contractual, jurisdictional, hybrid and independent natures. Each of these theories may have effects and different consequences on arbitration. Since the attitude of national courts towards international commercial arbitration affects arbitration proceedings, it is intended to deal with this question: As far as nature of arbitration is concerned, which of these four theories can be justified? The evaluation of four theories will be considered with respect to the nature and scope of arbitrators’ power, arbitration awards and choice of law. This article shows that arbitration has both contractual and judicial natures, which is a reflection of parties’ agreement and applicability of the law of the place in which the arbitration takes place. In this Theory, the contractual and jurisdictional elements are incorporated in each other.