LEGAL RESEARCH
Year:2023 | Volume:26 | Issue:103|Papers Count:18

In most legal systems today "good faith" is a well-known and effective concept in legal relations. One of the most important aspects of this effect is the effect of good-faith in the transfer of ownership. So if the person in possession; was acted in good-faith and unaware of the other’s rights to the property transferred; subject to some conditions, his good-faith causes the transfer of ownership to him and remains immune from real owner. This approach has been reinforced in German law, meanwhile specifying in legal provisions, by the establishment of principles and rules by jurists. In English law, however, the concept of good-faith has not been as popular as that of German law. However, the vast powers of the courts and the adoption of realistic, justice-based approaches by them, have led to the protection of good-faith possessor and this approach has been extended to some legal provisions. The concept of good-faith is also recognized in domestic law and is specified in some legal provisions. considering the dynamism of “Shi’a jurisprudence” as the basis of rules and legal provisions in domestic law And the lack of any conflict between the essence of good-faith and this basis, It seems that The approaches of the German and English legal systems can be used to strengthen these domestic legal institutions whose actions lead to the protection of the good-faith possessor and change some traditional approaches which the application of them would lead to the detriment of the good-faith possessor.

AbstractOne of the most important issues in the field of exporting gas to the European Union through pipelines is understanding the market and the laws and regulations in the EU as well as the requirements of other countries in the face of these regulations. In this article first The European Union and then the laws and regulations in Iran regarding the issue of gas export have been analyzed. The results of the research show that the EU Third Gas Directive 2009 forms the basis of the legal and contractual issues of the EU gas market which provide various legal guidelines, including ownership separation, third-party access to the gas storage facilities, and Regulatory Bodies. Laws on the Third Gas Directive regarding Third Party Access to the Network, Tariff Regulation, Ownership, and Transparency completely apply to existing and future gas pipelines to EU Borders including Territorial Waters and Exclusive Economic zone between EU and third Countries including Iran. It is suggested that third countries review and amend their laws in the event of any inconsistencies with the three laws and regulations.

AbstractUsing other's writing as an own writing or as a third party has been used for a long time. Nowadays, conditionally legislators call it a crime that should be punished.  On which has to have a special meaning. It means that if those have been registered and published or not before. Also, the content of software that has been circulated on the internet can be one of the plagiarism crime topics. The most important feature of this crime is the use of publication for the emission of other's writing as own writing or as a third person writing so that whether that publication has had a justification or not. Also if that publication, which is inside or outside, has been published inside of country or outside of country. The emission of a letter that is according to another's idea is not plagiarism. Inspiring others' ideas is not plagiarism if it has not been adapted exactly. This article tried to remove the ambiguity of this crime by descriptive-analytic method.

Arbitration constitutes the most common and efficient mechanism for the resolution of international commercial disputes. The spread of arbitration in general and the vital role of party autonomy, in particular, have unveiled various aspects of this method of dispute resolution and thus have caused the emergence of different types of arbitration clauses for which the parties' differing negotiating powers and distinct needs of different economic sectors have played a critical role. One of these novel but controversial types of arbitration agreements is concerned with “optional agreements.” Optional arbitration agreements provide an option for one or both parties to adjudicate their disputes either by arbitration or litigation. The nature, validity, and various aspects of such agreements have not been thoroughly examined in the primary and secondary sources. The same is true in Iranian legal literature, especially when it comes to its distinction from other types of arbitration agreements, especially voluntary arbitration. Thus, this Article attempts to discuss the nature, validity, and various types of optional arbitration agreements to unfold their unknown aspects.

Given the legal vacuum in domestic law and the legislator's silence in explaining the legal aspects of unfair terms and the criteria for their recognition, this study examines the criteria for determining the unfairness of contract terms. . Criterion for Determining Unfair Contract Conditions Roots in Unfair Contract Conditions Characteristics, including Works, Performance Guarantees, Impact of Unfair Contract Conditions and also on the Basis of Unfair Conditions, such as Fairness and Fairness and Goodwill and Their Role in the Contract Contractual freedom and the conflict of principle have to do with unfair theory and implicit condition theories, contrary to good faith, fundamental breach, harmful rule, gross negligence, and so on. To assess whether or not the terms are unfair, other components such as non-negotiation of terms, unequal bargaining power, imbalance in the rights and obligations of the contracting parties to the detriment of the weaker party, the degree of conditional release in accepting and rejecting the terms and not being transparent. One of the criteria for identifying unfair terms is. According to the International Commercial Arbitration Act, Article 456 of the Code of Civil and Revolutionary Courts of Civil Procedure adopted in 2000, the Iranian Maritime Law (in Article 179), the E-Commerce Act of 2003, all unfair terms which prejudice the rights of the other party. , Has no legal effect. Finally, despite the richness of the jurisprudence in this area, the existing rules on the "unfair condition and criteria for its detection" are ineffective.

The development of virtual space and the transactions formed in this space over the past few years have led to the formation of the concept of virtual assets. One of the important issues that should be considered in the acceptance of virtual assets in legal systems is the identification of the nature of such assets. Regarding the legal nature of virtual assets, different approaches have been proposed in legal systems; But three approaches have gained more acceptance; Some legal systems consider virtual assets as money and use them as a means of payment in transactions; Some others have accepted it as exchangeable and investable securities, and others have accepted it as a commodity and consider it subject to the regulations related to the sale of goods. Now the question is raised, which approach regarding the legal nature of virtual assets is acceptable in Iran's legal system? In response, it should be said that although the virtual property has not been given serious attention in Iran's legal system, the analysis of the nature of this property is more consistent with the ruling legal system.

One of the most important aspects of the idea of constitutionalism is the idea that principles and foundations exist beyond ordinary laws, and that, in a hierarchical order, laws contrary to those principles are identified and functioned by specific institutions, Unapproved or invalidated. In these circumstances, the existence of an institution that is able to approve and implement resolutions without legal excuses, or even beyond the law, is a violation of the Constitution. The establishment and multi-year legislative activity of the so-called "Supreme Economic Coordination Council" in the country seems to be an example of this situation. The council was naturally formed based on the exceptional situation prevailing in the country(Islamic Republic of Iran) , but did not take advantage of the mechanism in Article 79 of the Constitution, which provided for such conditions, and as a result, due to the uncontrollability of these enactments, Has violated the rules and regulations.

The subject of this article is to explain the modalities of the government's intervention in the banking system to regulate the banking market. Banks are subject to market failure due to problems such as information asymmetry, destructive and extreme competition, and behavioral risks. Therefore, government's intervention seems necessary to set up a banking system. The main question of this paper is that, in the light of public and private interest theories, how are the government regulatory interventions in the banking sector explained and explained and what are the challenges of this intervention in the legal system of Iran? From this point of view, after reviewing the theoretical foundations governing banking regulation rights, a variety of government tools for regulating the market structure and behavior of actors in the banking sector will be examined, and each of the positions of the Iranian legal system will be discussed. Given the fact that the existence of an independent and expert regulator in the banking sector is one of the most important components of the banking regulatory system, some of its institutional and structural requirements are also examined. Finally, some of the most important challenges of the banking regulatory system are mentioned in Iran.

The legal regulation of political power is considered a formal characteristic of fundamental rights. The principle of separation of powers is one of the fundamental principles that can regulate political power. From this point of view, it is important what attitudes and readings the constitutional law experts had in 1358 regarding the concept of separation of powers. Acknowledging the opinions of constitutional experts on the principle of separation of powers in the Assembly of Constitutional Experts has a close connection with the inclusion and implementation of this principle in the Constitution. Based on this, in the following article, the authors have tried, in the shadow of the theoretical examination of the foundations of the principle of separation of powers in the West and Islamic legal systems, the views and perceptions of the experts of the Constitution in the Assembly of Experts of the Constitution with it. to evaluate the ratio to obtain a broad and deep understanding of the concept of the separation of powers in the Parliament of the final review of the Constitution and related approval principles. This research has concluded with a descriptive-analytical method that there were eleven different interpretations of the concept of separation of powers in the Parliament of the final review of the Constitution. Based on these eleven different opinions, except two opinions, constitutional law experts did not have a new attitude to the content of the concept of separation of powers, and therefore the structural principles of separation of powers were relatively and differently manifested in the constitution. In other words, the principles and benefits of the separation of powers were not rejected by constitutional experts in general, but they were not fully reflected in the Constitution. At the end of the research, a proposal has been submitted to the revision body of the Constitution of Iran to complete and amend the aforementioned principles in line with the ultimate goals of the concept of separation of powers.

Puberty as a jurisprudential-legal issue and given the existence of different laws on it, the mind is involved with this important question whether the age of puberty in the law of contracts and marriage contract is two different categories or not? The existing conflicts between the legal articles related to the age of puberty necessitate the need to conduct an independent research in this regard in order to find a solution to resolve those conflicts, and based on this, in the present research, we approach this issue with the approach of the difference between presumption and presumption and the application of these two concepts. In the determination of the age of puberty, it has been discussed by mentioning jurisprudential and legislative records and finally led to the proof of the unity of the concept of maturity in the law of contracts and marriage contracts with the possibility of combining both criteria of the age of puberty independently with the approach of transforming the concept of maturity from the former assumption to the decree and creating The new assumption is with the hoocoomat of legal capacity.Keywords: maturity, legal fiction, legal presumption, legal capacity.

Industrial projects are complicated in essence. From the feasibility study phase to the closing stage, projects frequently face various risks, and there is always the concern that they may not achieve their intended goals. Risk management is therefore known as one of the main factors for project success, which should be considered and planned for from the very first stages of the project. This paper studies the legal tools of project risk management in EPC, GC, and EPCM construction contracts in industrial projects by deploying approaches to maximize the contractor’s motivation to cooperate with the employer and seeks to find the most suitable legal tool that is able to create cooperation between parties and a logical balance in risk allocation with a focus on the project's internal risks more conveniently. Studies show that risk Management solutions are possible through aligning the contractor and the employer’s interests, optimal and fair risk allocating between the parties, and developing a win-win situation for both parties. Project delivery methods, payment methods, and contract clauses are the legal tools making risk management achievable. EPCM Contractual Model is a novel project delivery method, insisting on cooperation and non-competition between the contractor and the employer. Studying various aspects of the EPCM Model indicates how choosing the proper delivery method, as long as the other legal tools, help risk management be appropriately done.

Negotiation is one of the methods that seek to resolve the dispute peacefully, and legally it has an independent nature from similar methods such as arbitration, mediation and conciliation. The necessity of negotiation is that because its provisions are carried out before entering the judicial authorities, it can be an effective and efficient way to speed up the dispute resolution process and reduce the volume of cases in Iran's courts and preserve the commercial-economic information of the parties to the contract. The novelty of this topic is that the negotiation clause has not been discussed so far in relation to the effect it has on the parties and the duty of Iran’s courts in dealing with it. This research was compiled with descriptive-analytical method and using library sources and verdicts of domestic and foreign courts. The results showed that if we consider the negotiation as a clause of a passive act or a clause of the result of a partial deprivation of rights, then the guarantee of its violation will be the issuance of a non-hearing order by the court. Regarding the duty of the parties during the negotiation, it is concluded that the mere recognition of such a clause is not enough for its precise implementation, but the need for continuous cooperation and good faith on the part of the contract parties in the process of renegotiation is also required.

Today, freight forwarding plays a key role in the development and stability of international transport of goods and freight forwarders are no longer just agents of cargo owners to manage transport operations, but rather provide a wide range of services to customers, including transportation of goods, as a combined transport operator. In Iran, the Supreme Council for Transport Coordination approved a bylaw entitled "Establishment and Operation of International Transport Companies" in 2017, in which paragraph 3 of Article 21 sets 90 days as a time bar for filing a lawsuit against a forwarder. Determination of such a short period for filing a lawsuit shall not only encounter cargo owners with serious difficulties in claiming damages in the event of loss of or damage to the goods but also raises serious questions that is such a rule in line with the rules accepted in international legal documents, including FIATA Model Rules for Freight Forwarding Services? is Supreme Council for Transport Coordination legally allowed to impose such a time bar? Is this rule valid despite Article 393 of the Commercial Code? Examination of various international legal documents governing freight forwarding activity indicates the existence of 9 months for filing a lawsuit against the freight forwarder. Also, imposing a time bar requires the involvement of the Parliament, and the Supreme Council for Transport Coordination is not competent to take such an action. Finally, the provision of paragraph 3 of article 21 of the bylaw conflicts with the provision stated in article 393 of the Commercial Code.Today, freight forwarding plays a key role in the development and stability of international transport of goods and freight forwarders are no longer just agents of cargo owners to manage transport operations, but rather provide a wide range of services to customers, including transportation of goods, as a combined transport operator. In Iran, the Supreme Council for Transport Coordination approved a bylaw entitled "Establishment and Operation of International Transport Companies" in 2017, in which paragraph 3 of Article 21 sets 90 days as a time bar for filing a lawsuit against a forwarder. Determination of such a short period for filing a lawsuit shall not only encounter cargo owners with serious difficulties in claiming damages in the event of loss of or damage to the goods but also raises serious questions that is such a rule in line with the rules accepted in international legal documents, including FIATA Model Rules for Freight Forwarding Services? is Supreme Council for Transport Coordination legally allowed to impose such a time bar? Is this rule valid despite Article 393 of the Commercial Code? Examination of various international legal documents governing freight forwarding activity indicates the existence of 9 months for filing a lawsuit against the freight forwarder. Also, imposing a time bar requires the involvement of the Parliament, and the Supreme Council for Transport Coordination is not competent to take such an action. Finally, the provision of paragraph 3 of article 21 of the bylaw conflicts with the provision stated in article 393 of the Commercial Code.

In the course of fulfilling the contractual obligations and the obligee refusal to accept performance properly offered to him, as the obligee has fulfilled his obligation (to deliver the obligation subject-matter whether goods or money), a few questions arise that each response will have a different effect; Such as: “if the obligor provides the conditions for obligee s acceptance of the goods or money; does the obligee discharge as soon as enabling the other party to make delivery” or “should he deliver subject-matter to the competent court ? Therefore, the present study seeks to investigate the effects of obligee default to determine the scope of legal obligations owed after refusal.Accordingly, this article examines the binding effect of default in “Imamiyah jurisprudence, United Nations Convention on Contracts for the International Sale of Goods and England law, including transfer of Risk, binding to performance, and avoid of the contract. In doing all the acts which could reasonably be expected of obligor in order to enable the other party to make delivery the subject of obligation but he refuses to take it, due to losing validation of his consent in making delivery by others, the obligee will be discharge, but since the release of the property is like a “waste”, he can deliver it to the court or sequester it in the custody of a person authorized to hold it. Deposit or sequestration discharges the obligee from that moment and damages must be borne by the obligor.

As the U.S. sanctions against Iran have been expanded, many legal service providers, even in European countries, refused to provide legal services to Iranian nationals or disputes that are somehow related to Iran. In particular, this refusal by arbitration organizations has been more noticed. The main question of this research is whether the U.S. secondary sanctions can be invoked for the refusal to provide legal services by arbitration organizations and, accordingly, the financial services of financial institutions which are active in arbitration processes.According to the three executive orders by the president of the U.S.A. against Iran, On the one hand, the provision of legal and financial services by arbitration organizations and financial institutions active in arbitration processes exposes them to the risk of sanctions and penalties for violations of the sanctions; On the other hand, A general license has been stipulated in § 560.525 (a) and (d) of the “Iranian Transactions And Sanctions Regulations” which includes the provision of legal services. But even this is not certain. This exception is also limited and restricted according to § 560.525 (d)(1) ofIn conclusion, although, these three executive orders and the general license exception have not explicitly prohibited the provision of legal and related financial services to Iranian nationals or disputes that are somehow related to Iran; practically, they turn it into a cost-benefit-based evaluation that is done by arbitration organizations and financial institutions, even if the refusal to provide services leads to the possibility of claiming for damages against them.

Anti-suit injunction is a traditional common law instrument that aims to restrain one of the disputing parties from instituting or continuing proceedings in a foreign court. Although an anti‐suit injunction is directed against the plaintiff, not against the foreign court, civil law countries hold a skeptical view towards anti-suit injunctions as such injunctions intervene in another state’s sovereignty and breach the international comity. This study aims to examine the possibility of issuing anti-suit injunction in the EU, Chinese, and Iranian law. The study contends that under the EU law, the courts of EU member states are prohibited from issuing anti-suit injunctions against a plaintiff in the courts of another EU member state. On the other hand, the EU law does not prevent the courts of EU member states from issuing anti-suit injunctions against a plaintiff in the courts of a third country when they have the power to do so under their national laws. In China, the Chinese courts do not have the power to grant anti-suit injunctions. However, recently, some Chinese courts have issued anti-suit injunctions against plaintiffs in foreign fora. In Iran, the Iranian courts can also issue an anti-suit injunction against a plaintiff in a foreign forum under some circumstances.

Progress and development in any country is possible in the context of establishing a sense of security in the people of that society. The extent and quality of crime is one of the most important factors in reducing the sense of security and its adverse social consequences. They are mostly rare, but it is one of the most effective crimes that causes a feeling of insecurity in public opinion and has a very wide and long-lasting destructive effect on society. In recent years, our country has also witnessed serial killings from time to time, which has negatively affected the peace of society and disrupted public security. Given the statistics of the occurrence of such crimes and the growing trend of these homicides in the country, it is necessary to find the exact roots of the various reasons for committing such crimes. Unfortunately, for various reasons, including hurting emotions and public pressure to quickly punish the killer, this important issue has been neglected, so that all relevant agencies have tried to punish the serial killer, part of the pain and suffering of families. Relieve the victims and the community. Accordingly, it is necessary that various efforts be made by scientists in related sciences to investigate this phenomenon in order to analyze the unknown aspects of the causes of such crimes from a social perspective.

The laws of Iran, in many cases, including the family courts, the dispute resolution council and forcible entry’s quarrel, with unclearly pointing to the non-observance litigation formalities without defining the scopes of their non-observance, have brought about the disparity of judicial proceedings. In this regard, lawyers definition of the "litigation formalities" is also almost and there is considerable controversy in explaining its implications. Discrepancies in cases, such as petition, communication, court costs and due dates were so high, that Some of which have been considered as a principles of the proceedings and some others place it as part of litigation formalities. So in distinguishing between the litigation formalities it must be properly segmented; the first is the "formal ceremony", which consists of two parts; But in separating the formalities of the judiciary, it must be properly segmented; the first is "fundamental formalities" which consist of two parts; The first part, including the communication and the hearing session, is "the formalities of the introduction of the implementation of the principles", which can not be dismissed even with the stipulation of the legislator. The other part, including petitions and court costs, has been "Basic formalities of litigation", which can be leaved out by the legislator's case in certain proceedings. The second type is formalization with a weaker degree of "simple formalities", which includes many examples, including how it is communicated, the time of the hearing, the due dates and the respites.