Legal Research
Year:2011 | Volume:- | Issue:52|Papers Count:10

When the free movement of the people and the goods or industrial products are to be effected and the states are determined to support and to implement such situation and to positively affect cross-border impact, they have to create and maintain an area of freedom, security and justice. One of the preliminary and basic issue is adoption of judicial measures relating to civil matters, a subject of which is non-contractual obligations, the concept which varies from one state to another, but certainly deals with risks inherent in a modern high-technology society.In this connection and in cases where a foreign element exist in non-contractual obligationsit is necessary in order to improve the predictability of the outcome of litigation, certainty, and free movement of judgments, the law applicable and/or the choice of law rules are enacted as the same national law as other choice of laws rules of the country.In Conflict of Laws, the European Parliament and the Council of Europe Adopted the "Rome II" Regulation (Reg. (EC) No.864/2007), which is the European Union Regulation on the law applicable to non-contractual obligations. It became applicable in the Member States excepting Denmark from 11 January 2009 (Art.32). From this date, the Rome II Regulation creates a harmonised set of rules within the European Union to govern choice of law in civil and commercial matters (subject to certain exclusions) concerning non-contractual obligations. The requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice. This Regulation provides for the connecting factors which are the most appropriate to achieve these objectives.The general rule for tort/delict is stated in this Regulation as the lex loci damni/ delicti commissi in Article 4 (1). There are two exceptions (or one exception (Art.4 (2)) and one' escape clause' (Art.4 (2)) to this general rule. The specific categories of tort/delict, are stated in Arts.5 (product liability), 6 (competition), 7 (environmental damage), 8 (IP infringements), 9 (industrial action). Provision has been made for special rules where damage is caused by an act other than a tort/delict, such as unjust enrichment (Art.10), negotiorum gestio (Art.11), and culpa in contrahendo (Art.12).Additionally, to respect the principle of party autonomy and to enhance legal certainty, in certain circumstances and subject to certain conditions, the parties are given the freedom of choice of the law applicable to a non-contractual obligation (Art.13).In order to safeguard the public interest of the forum the courts of the Member States are given the possibility, in exceptional circumstances, to apply exceptions based on overriding mandatory provisions (Art.16) and public policy (Art.26).This was considered and analyzed in this paper in order that its different aspects and features are clarified. This can help the law students to increase their legal knowledge and uderstanding of the subject, and it can also guide the lawyers and law-makers and ease their work to crystalise their own necessitis in the sense of what is the law applicable to non-contractual disputes (cases) in the courts of European Countries (almost 27 countries), and what are the critical points which should be regarded if a law is to be enacted.

Le vendeur et I'acheteur ont I'intention d'echanger Ie prix et la chose en concluant Ie contrat de vente. Malqre cela, dans la vente a credit de corps certain, aussitot Ie contrat conclu, I'acheteur devient proprietaire de la chose tandis que Ie vendeur n'a toujours pas recu Ie prix. Cette ineqalite economique entre les deux parties du contrat exposera certainement Ie vendeura des risques. Pour eviter cela et soutenir Ie vendeur, Ie code civil a prevu des mesures protectrices. Mais celles- ci n'etablissent pas d'equilibre logique et souhaitable dans Ie rapport contractuel des parties.C'est la raison pour laquelle les deux cotes doivent creer l'equllibre souhaitea la fois economique et juridique en prenant des measures contractuelles adequates. Dans cet article, I'auteur essaie d'examiner et de clarifier ces mesures.

The retrial is one of the superlative ways for complaining about courts' judgment which is accepted and operated exceptionally and in specific aspects due to its restrictions and being exclusive. Rehearing is a superlative way and for that reason it can be carried out and taken effect only when a final judgment was issued by a court and with resorting to exceptional and exclusive cases after admitting it to objectionable criminal and civil judgments. Meanwhile, third parties may not enter to this stage. Such particularities resulted in prominent situation for retrial comparing with other methods such that no parties involving in the case, comparing with routine way of asking for appeal, could not easily try their fortune for reversing the Judgment resorting lawful approach and provide with other opportunity. Ignoring the provisions and limitations present for this legal approach, legislator, in 1980, developed appealing to this way by discretion of judiciary in an accelerated and abrupt action such that one can take to revision any final judgment (whether Order or Judgment) issued by judiciary courts and so violate it. Although dispersing the retrial and developing its realm to reverse the orders violated legally may fairly be proper for justice, but more and more applying it may reduce the importance of this violation procedure as well as its respect and may turn it to a routine method. The main objective of this paper is analyzing the regulation for revising Article 18 of revision in regulation for forming public and revolution courts enacted on 14 Jan 2007, where there has been established discretion of chief of judiciary in obvious discrepancy of award with shariah as one of the causations for retrial In criminal and civil affairs. For this reason, we are deciding to discuss conditions and barriers for discretion of mentioned legal authority and elements of this newly established article as well as its effects.

The wage as the main factore for providing labour to an employer, deserves to be supported. One of the means for such support is accepting the minimum wage system in labour law. A system which has accepted and been in use for more than half a century by both Iran and the USA. Despite having accepting the common principles and goals of this system, both countries have differences such as in cases approving the authorities, criteria, workers involved, the scope of their involvement in various areas and industries and the adjusted period. Through a comparative study of the minimum wage system in Iran and the USA, while becoming more familiar with other methods of implementing this system, the problems of this issue in Iran will be considered further. It seems that, at present, this system in Iran requires some amendments in the methods for selecting labour representatives in the Supreme Labour Council, determining the different minimum wage having regard to the industries in different parts of the country moving towards more dynamic labour trade unions and collective agreements in this respect.

In recent decades, a number of efforts have been done at the national and international level to control and regulate the emission of greenhouse gases. Compliance with limits imposed by regulations on emitting gases requires adaptation in existing facilities, making new investments and incurring other costs which are unbearable to many companies especially old ones. As the total reduction of emissions are intended for the sake of environment, certain mechanisms should be designed to allow pollutants to buy the credit of other companies instead of reducing their own emissions. The sale and purchase of credit obtained as a result of reduction in emissions is called "emission trading". In this paper, we first provide a brief history and concept of emissions trading. Then, emission trading at the international level will be discussed based on Kyoto Protocol and regional emission trading with reference to the European Union emission trading program. Finally the legal framework of emission trading and its basic elements will be discussed.

This essay explains the developments of crime prevention and it's significance when compared with other policies of crime control, such as reaction to crime, particularly when it is repressive or penal. It follows that prevention is much more fruitful than punishment. It is stressed that looking into the western experience of crime prevention to learn lessons from them has to be approached with serious attention to local context and abilities. Then, three approaches which shape crime prevention strategies in recent decades are analyzed. It is concluded that prevention is always preferable to reaction to crime for different reasons. To plan an effective crime policy, it is vital to fully understand the nature of crime and the process of its commission as well as its effects on individual and social life of the people. It is also crucial not to merely rely on offender - centered i.e repressive and deterrent strategies of crime control based on police and prison, but crime policy should make the most advantage of victim - based and community prevention programmes.

Among human rights the right to life is the most vital one. This right may not be subject to any derogation even at the public emergency times. However, taking of life through the death penalty and the police operation seems as an indispensable reality in the human societies; whereas the first one is gradually eliminating and the later is subject to very strict rules of law. According to the customary rules of international law, taking of life through police operation may not preclude the criminal responsibility of police officer unless such killing has been totally done in the exceptional circumstances and is regarded necessary and proportional for the purpose of operation. Moreover, in the case of use of the firearms, States are obliged to accomplish an immediate, comprehensive, and independent inquiry.

The right to education is not considered and discussed as a fundamental human right. International documents classify this right in the category of cultural rights, and as a result, most of international jurists, citing these international instruments, believe as such, but they ignore its legal value and importance in the hierarchy of international norms.The right to education, as the cornerstone of humane understanding, and a way towards the realization of human most vital civil and political rights, such as freedom of thought, expression and belief, should be normally considered as a high valued right in the hierarchy of human rights norms, and referring to these international regulations and standards, we can observe an imperative character for the right to education, at least for elementary level.Futhermore, education cannot and should not be free of human rights requirements. Each and every human being shall have first a truthful environment, then thinking about human being and its necessities for a decent life. In other words, the right to education is of no sense in the absence of a right to minimal thinking skills and rational tolerance teaching. Educating people without paying attention to the last feature can lead a society to grave consequences. This necessity is enshrined in some international human rights instruments in a subtle manner.This article is to Elaborate the Complicated aspects of this fundamental right.

L'OMC n'est pas un organisme a vocation environnementale. Son principal objectif consistea promouvoir Ie commerce international et d'ouvrir les marches. Bien qu'il n'existe pas d'accord portant specifiquement sur I'environnement, en vertu des reqles de I'O.M.C, les Membres peuvent prendre des mesures liees au commerce visanta proteqer I'environnement sous reserve que plusieurs conditions soient remplies permettant d'eviter I'utilisation abusive de ces mesures a des fins protectionnistes.Le mecanisme de reqlernent des dittererids de I'O.M.C. est un systerne essentiellement inter-etatique. Toutefois, cette nature intergouvernementale du systems do it de plus en plus etre relativisee. A cet eqard, I'amicus curiae demeure I'une des questions les plus discutes au sein de I'O.M.C. Malqre I'admission de cette institution par I'Organe d'appel de I'O.M.C., cette figure est loin d'etre acceptee par tous les membres de I'O.M.C.Cette etude expose la question d' interaction entre les O.N.G. environnementales et I'O.M.C. Elle se concentre, dans un premier temps, sur Ie fondement juridique du GATT 47 et de I'OMC a I'egard de leur relation avec les O.N.G. et dans Ie second, elle envisage de traiter la jurisprudence de I' O.R.D concernant la presence des O.N.G. en tant qu'amicus curiae.