Journal of Comparative Law
Year:2018 | Volume:14 | Issue:1 (109)|Papers Count:8

The economic approach to the tort law is one of the most successful examples of economic analysis of law. In this approach, unlike traditional approaches, the final goal is not to compensate the victim, but such as other areas in the economic analysis of law, economic efficiency (wealth maximization) is considered as the main justification for the rules. Economic analysts believe that by requiring individuals to internalize the external costs of activities, requiring taking efficient precautions, reducing the administrative costs and loss distribution among the members of the society, tort law can reduce the sum of the costs of accidents and thereby lead to economic efficiency. In this research, the strict liability as one of the important principles of tort law has been evaluated with the economic approach and efficiency criterion. Our survey indicates that the strict liability has economic justification and in the events that have unilateral nature, the doer is stronger and richer and has more information and control over the risk, can lead to economic efficiency.

Various property offenses include intervening in people’s financial rights and interests; so it is always necessary to determine whether the people have such rights and interests in connection with those properties or not. The response will be found in the area of the role of established concepts of civil law, such as rules of property, contract or sub-contract law. So, on the whole, in relation to this matter that whether civil law issues are able to have any role in explanation of property offences, three main opinions (theories) have been provided; According to the first, in determining the financial crimes like theft (larceny or robbery), judges are inevitable to use such established concepts as they are well known in civil law. The second opinion believes that judges use the well-known concepts of civil law in criminal law and property offenses, by creating new definition and interpretation of them. And according to third opinion, judges and jury, not on the basis of established concepts of civil law as they are defined by its own rules and not pursuant to their new definition and interpretation of these concepts, but on the basis of an “independent and common sense” have answered this question and determined the limits and range of property offences.

Despite the great success of WTO dispute settlement, it includes several weaknesses and shortcomings which required to be amended. Among various proposals, monetary or financial compensation has been one of the main concerns of the members of this organization. Although financial remedies have been ruled out under Article 22. 1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), but because of its voluntary and non mandatory nature, it has not been able to lead offending members to greater adherence to the rules and regulations. This paper attempts to outline the most important predictive basis for the sanction, the critique is explained and its design is analyzed.

Insanity, in both of Iranian criminal system and most states in the US, is defined as a mental disorder which causes to lack of volition or lack of capacity to appreciate wrongfulness of conduct, whether the nature of the conduct or criminal description of it as a crime. An insanity defense is acceptable, only when the offender did not have any volition or diagnostic capacity as a result of mental disorder. Mental disorders which often excludes criminal responsibility includes mania disorder, schizophrenia, paranoia and mental retreated, according to new Iranian criminal law or American law. Diminished responsibility, considerably, is applicable for mentally ill offenders, who have criminal responsibility, in the American states versus the Iranian criminal system.

According to population forecasts, Iran will face a large stratum of the elderly population over the next three decades. Therefore, the readiness to deal with the problems caused by this issue requires careful consideration. In this regard, new concerns are emerging as "Elder Law" in which different aspects of the life of elderly people are monitored and studied from a legal perspective. Due to the growing number of working elderly people, the issue of “Elder Labor Law” is one of the most important parts of “Elder Law”. In this article, the latest developments and ideas regarding labor law and retirement for a society, facing an aging population, is evaluated and finally, some implementing solutions to applying them are presented. Some of the most important issues and suggestions in this article are the flexibility of working hours and conditions, to promote and support old-age jobs, to diversify the elderly income sources, to pay special attention to age discrimination and to replace age of relative disability instead of retirement age. Also, this article presents a comparative study of the situation of aging labor rights in Iranian legal system and proposes solutions to promote it.

A “signing statement” is a written pronouncement issued by the President of the United States upon the signing of a bill into law. The signing statement has a particular importance in the US constitutional order because the Supreme Court and Federal Courts have useditasa source to issue judicial verdicts. Signing statements are grouped into three categories: Rhetorical, Interpretive and Constitutional statements. The signing statement can be used as a subsidiary and helpful tool for other powers and relative bodies for a valid understanding of ordinary law and protect the Constitution. There are debates about whether a signing statement is lawful and in compliance with the Constitution; however, the Presidents have used it as rhetorical, interpretive and constitutional tools, due to the lack of clear reference in the Constitution about the impossibility of applying it.

Sometimes, the parties of a contract for any reason do not want or cannot agree about some terms of the contract such as the quantity or quality of the object, the price, the method of the payment, duration of contract at the time of conclusion of the contract. Therefore, they conclude the contract and postpone the determination of these terms or only rely on setting up a criterion to determine it. There are disagreements over the validity of this type of contract that is refferedto as “open contract”. According to the traditional doctrine, one of the basic principles of validity of a contract is the need to resolving of ambiguity of contract and if a deal has vague and open provisions, it would be void for reasons such as lack of sufficient agreement, absence of intention, the impossibility of completing the contract, the chance of gain or loss in a contract and conflicting with reasonable men practices and public policy. But the analysis of these arguments shows that none of them are perfect and sound reasons for invalidity of this kind of contract and there are logical answers to them. Moreover, common interest, the necessity of maintenance of legal relations and their stability, the needs and requirements of commerce and economic efficiency require that this kind of contract must not be void when some of its elements and conditions are open whereas the ambiguity of the contract is not such as to lead to a dispute.

Habitual residence as an alternative to domicile and nationality has become a prevailing connecting factor in conflict of law system. The purpose of this paper is to examine the potential benefits and risks about to replacement of domicile concept with habitual residence. The concept of habitual residence through international conventions which is the product of Hague Conference on Private International Law is imported in the United States Law. One of the reasons for accepting this new concept in Common Law and in particular in the United States law is avoidance of inflexible and arbitrary rules which exist in the concept of residence. While domicile refers to intention for living in a place for future, habitual residence refers to the objective and current situation and intention element in the latter is weaker than the former. Habitual residence is based on an objective and actual relationship between a person and a State. However, due to the lack of a universal definition of habitual residence, there is always a concern that domestic courts, by distorting and false interpretation of this expression, apply the traditional meaning of domicile with an appearance of a new phrase.