Legal Research
Year:2018 | Volume:21 | Issue:83|Papers Count:13

Unenforceability, as a sanction relating to legal acts, seems to be different from other remedies thereof in several manners. According to us, unenforceability may be characterized as formal and mixed sanctions applicable in the case ad probationem requirements of a legal act are breached. The very roots of unenforceability can be traced back in some outstanding institutions (i. e. legal security of transactions, efficiency of legal provisions the necessity to protect third parties of good faith and thé orie de l'apparrence. Therefore, it does not emanate primarily in civil law (sensu stricto) but in commercial law. Unenforceability has experimented either ignorance or misunderstanding by Iranian scholars during decades. Thus, it is necessary to reconsider this significant entity, recognize components thereof and address its independent nature in comparison with competing and/or concurrent ones. This study shows that it is a must to distinguish unenforceability of contract from other remedies including inter alia, Moraa, voidance and voidable contracts.

Protection of fundamental values and public interests justify provide some exceptional rules for jurisdiction. Among this, Necessitates jurisdiction widely accepted because of reliance on justice conception and compliance with fair trial right in domestic laws of many states as well as international instruments. Where application of normal rules of jurisdiction amount to unfavorable results or unable for meet of justice, should be thrown down and the court which is principally lack of jurisdiction, could adjudicate the case. This feature differentiate Necessitates jurisdiction from some similar concepts such as exorbitant jurisdiction and forum non convenience. Necessitates jurisdiction rules exercise with consideration of other state procedures and impossibility of litigation in foreign state is one of main requirement of this jurisdiction. Although conflict between necessity jurisdiction and comity approach as one of current foundation of private international law, which is require good relationship among states, cause hesitate in acceptance of this exceptional jurisdiction in some countries.

Legal pluralism, in broad terms, refers to the coexistence of two or more legal systems under the one and same state. In narrower terms, legal pluralism implies plural state-made laws and the reflection of social and cultural plurality in a legal system of a state. The concept, in its broad sense, embodies this outlook that law is not limited to the institution of the state, and that the state is only one of the authorities that make legal rules in the society. Accordingly, the concept of legal pluralism gives rise to diverse and important discussions on the scope and meaning of the concept of law. In addition to the conceptual controversies with which legal pluralism is encountered, the significant methodological criticism is that legal pluralist theories lack a clear and precise criterion for distinguishing law from other social phenomena. Considering all normative orders as legal will lead to certain conceptual confusions, which undermines main claims of legal pluralism and make them unjustified.

The rules and regulations related to the Contract Laws are developing progressively. It is so in many countries and communities. The “ Principles of European Contract Law” , the “ Principles, Definitions and Model Rules of European Private Law” and the “ Draft Common Frame of Reference” are good examples in this respect. In Germany the reform of contract law, which had started in 1970, finally adapted after 30 years in 2001. In France the reform codified in particular a number of principles that have emerged in th e case law. After a decade of discussion, French Contract Law has finally been reformed by the way of an ordinance published on the 11th of February 2016 and came in to force on October 2016. The objectives of reform are notably the simplification for economic welfare, omitting the code clauses which are less effective, modernization and ultimately attractiveness of French Contract Law as wholly emerged in the case law by courts. Main aspects of reform are related to the extension of good faith to cover the negotiation and the conclusion of the contract, duty to inform, transparency, giving effect to unilateral promises to enter into a specified contract, revocation of promise, promise and option contract. The civil code of Iran is now 80 years old and many of its articles need to be amended. Iranian contract law is very similar to its French equivalent.

In compare with Iranian Civil Procedure Act of 2000, Iranian Family Protection Act of 2013, has differnet rules on jusrisdiction and formalities for proceedings in family cases. Family Protection Act also has rules about managmnt of court times, conciliation in civil case, recognition and enforcement of family awards. These innovations need to be discused. This article basing on the principles and fundamental rules governing civil procedure is discusing the role of these principles and rules in family proceedings and courts of Iran. This study will show the strengths of the Family Protection Act which can be used in subsequent amendments to the Civil Procedure Act. Family Protection Act also has several drawbacks that must be considered in subsequent amendments or in case law.

Representation as a political and legal institution is established in the following of theoretical evolutions of the modernism and the theory of popular and national sovereignty and it is considered as a fundamental institution in the representative democracy. The fundamental basis of the representation theory is justified according to human dignity, equality and free and independent will of the individual in individual and social self-determination. Such an approach to representation is derived of the efforts of political and legal thinkers of classical and modern that today has been shown in modern democracies with the functioning of the welfare state and the guarantee of fundamental human rights. This article try to discuss as to how to interact between the representation theory and applying the public will and in this regard and with the descriptive analysis approach, a fundamental question arises: What is represented? Who is represented? How is an individual decision justified for else? and assuming that in the representation theory, the rule of the people, the collective will of the public and public interest are represented and the delegate is responsible before the public will and demands of the people.

Competition authorities call various remedies with different efficiency in hindering antitrust activities in Intellectual Property domain in order to protect technological environment from anticompetitive practices and save innovation from the illegal ambition of undertakings. Having regarded different types of competitive sanctions which are applicable in IP sphere, this research is going to draw their framework in Iranian law, regarding the Law on Implementation of General Policies of Principle (44) and clarify the relationship between general and particular IP regulations and challenge the approaches of Iranian law from the point of view of standards and established rules in IP and competition laws sphere. This paper makes clear that in absence of efficient policy regarding IPs and a lack of understanding of the competitive remedies aspects and mere borrowing the notions of foreign law, without trying to adapt them in the context of domestic law, adopted policies and solutions suffer from deep shortcomings. This situation finally leads to unreasonable results which require a substantial change in attitudes to the role of competition on sanctions in the field of intellectual property and reconsidering of the current arrangements and rules.

Inconsistent judgments in Individual lawsuit have bad effects on the validity of the judicial systems where there are actions with the same or common questions of law or fact and finding the methods for aggregation of the claims is one of the concern of different legal systems. There are different methods of aggregations of the claims accordance with the basis and principle of each legal system. Acceptance of Model case is one of these methods that is predicted in the German legal system. In such cases, an action is brought by one or more person and the final verdict is applied as basis to all registered individual cases. In the legal system of Iran, although model case are not accepted as a general rule, however we can see similar example of these actions in some statutes such as Law of the Organization and procedure of Administrative Justice Court. In this article with analyzing model case in German law and justifying the necessity of acceptance of it in Iran law, we want to answer this question whether model case can accept in Iran law?

The creation of the modern state in modern times is an important event and many new concepts and institutions rooted in this new phenomenon. Several theories have been involved in the creation of the modern state, one of which is the theory of reason of state. Reason of state theory arose in the sixteenth century Italy and from there to the rest of Europe was drawn. Creator of this theory believed that sometimes the interests of the state and of course the public that the prince acts contrary to popular belief and Keep the power and state higher from any interest. Of course, the theorists of this concept, there are differences in explanation this theory. This article was referring to the role of theory in the development of the modern state Historical and theoretical foundations and interpretation and criticism of the concept of that it has been examined. Reason of state theory with appearance of other forms of state, although seemingly vanished but survive in a different fashion that has been tried as an introduction to this theory to be addressed the most important issues.

The step-in right in project finance model is one of the most important right of the lenders, the basic question of this article is about this right and applying it. Despite the importance of the issue and the need to pay attention to it in research and legislation, it is not as explained as needed. In this article by studying the books, real contract’ s and articles in analytical method concluded the step in right is not comparable to any type of the traditional institutions in civil law such as transferring the commitmenis one of the most important right of the lenders, the basic question of this article is about this right and applying it. Despite the importance of the issue and the need to pay attention to it in research and legislation, it is not as explained t, Guaranty. After debating on project finance and direct agreement comparing study has been applied.

Friend of the court is a person that, provide the court, with his information and legal analysis about question of fact and law. Provide an advisory submission by a friend of the court has its roots in ancient Rome but, with the development in using this institution by common law countries, now it is not a neutral person and may has a general and indirect interest in legal proceedings. There is no institution like the friend of the court in Iranian law but, with regarding advisory submissions of legal administration of justice, we can consider this office as a friend of the court in its traditional and Roman sense. Moreover, according to article 199 of civil procedure, the judge can request any person to provide an advisory submission on question of fact and law. In addition NGOs intervene in the proceedings provided in article 48 electronic commerce code adopted 1382 and article 66 of criminal procedure code adopted 1392 is as same as new friend of the court in common law.

One of the biggest challenging issues that concern the religious scholars, philosophers and moralists is about the intentional terminating of the pregnancy. In a way that fetus won't have the ability to continue living outside of uterus. In the first glance we can see three kinds of approaches to this problem: permitting the abortion, lack of permission, conditional permitting the abortion. But by studying the comments we can conclude that followers of each approach don’ t use the same foundations and documentations. For this it's necessary to know the foundations and the history behind each approach and also doing a comparative study on them. In this study, the reasons of different approaches of Islamic scholars and philosophers with each other, including Shia and Sunni and also with western scholars will become cleared.