Legal Research
Year:2011 | Volume:- | Issue:55|Papers Count:17

Nowadays disruptions in the type of interactions and the level of independence have led to a transformation in the law of contracts.The most significant of these manifestations is represented in the increasing number of limitations placed on the freedom of contracts.In fact, in the modern society, owing to significant differences in the individual's bargaining power and disruption in the balance of contract, on the one hand, and specialization of affairs, on the other, absolute deference to this principle would probably defeat its own purpose; not only will it not increase public welfare, but also it will worsen the hardships and difficulties facing consumers.In modern law, limitations are imposed on the freedom of contract not only to prevent the making of contracts harmful to society, but sometimes it also requires individuals to conclude a contract or to accept the terms of the contract or to choose the other party to the point of impinging on the freedom of individuals.Therefore, compulsory contracts are the result of limitations on the concept of the freedom of contract and its territory is a function of the economic and social necessities of each country.

The procedure of protest and appeal is basically a way to ascertain the validity and accuracy of the awards issued by courts. Substantive proceedings either of the first instance or the appeal stage of trials to some extent affirms the accuracy of the judgments and gives effectiveness to them. There is a further exceptional way of revision called retrial which can be applied against final judgments following the request of the losing party. Exceptional and exclusive causations are required to apply for retrial. These causations in both civil and criminal cases are of such importance that, if they are proved, the final judgment will lose its effectiveness and will be reversed.In this article, we introduce and analyse the principles governing retrial in both Iranian and comparative law.

The importance of judicial review and its significance for ensuring the legality of administration is a well-known issue. Its application depends on an essential element, such as the notion of an administrative act by a public body. In some areas, because of the lack of this notion or on the basis of a private contract, political acts or an act related to security, judicial review can not be applied. Other areas, such as the judicial, legislative, political or internal affairs of the administration can be added.Over recent years, judicial bodies in England and France have tried to restrict those limited areas and thus moved to extend the judicial review mechanism.In this paper, these positive developments will be examined. The final conclusion is important not only for recognizing the role of judicial review for protecting individual rights, but also for ensuring the principle of administrative responsibility. Recent developments have shown a tendency in the judicial to secure ideal values and concepts.

According to Article 4 of the Constitution of the Islamic Republic of Iran all legislation must be compatible with the norms of Sharia'h, Such a constitutional demand, beside the shortage of domestic scholarly interpretive works, can lead to the fallacy of equalizing Shariah and the law. One consequence of such a fallacy would be to eliminate the analogical method from legal reasoning and replace it with reference to Islamic sources instead (Article 167 of the Constitution). It is, however, feasible to interpret the law by applying an analogical method and, hence, preserve the rule of law.The main finding of this article is to show that, even if the analogical method is not acceptable in fiqh, that should not be the case in the law. Accordingly, Article 167 of the Constitution should only be applied where all other interpretive techniques including the analogical method have failed to address fully a legal case. Such an approach would enhance the rule of law in the system and reduce personal subjective interpretation by judges based on their fiqhi tastes. The hermeneutical result of this research is to affirm the independence of legal reasoning from that of fiqhi interperation.

Unlike piracy and the slave trade that provided the first examples of international crimes and international jurisprudence in combination with prosecuting and punishing those who committed them, there are some other international crimes committed in maritime zones that have recently attracted the attention of the world community.Amongst different kinds of crimes, according to their degree of importance as mentioned above and how the world deals with them by entering into the international treaties, two items of important crimes such as narcotic and people smuggling by sea have been the subject of much attention. The spread of treaties to cope with the crimes mentioned above in territories beyond states jurisdictions have mainly focused on these discussions.This paper has also discussed the four Geneva Conventions (1958), Law of the Sea Convention (1982), the Geneva Convention (1988) and its Protocol on navigation security accompanied by other international and regional and reciprocal documents.

Competition law, sometimes in coexistence with technology licensing agreements, faces some restrictive practices which, unlike valid and illegal restrictions, are not of a clear competitive situation. Such restrictive practices are suspectedof having anti-competitive consequences, on the one hand, and involve some desirable consequences for commercial markets, on the other. Such a dual nature makes it hard to offer a competitive analysis. Taking into account the experiences of different legal systems, especially American and EU law and that of some Asian countries, this research will first to clarify the notion of suspect restrictions, identify their instances, and then distinguish them from hardcore restrictions and finally, to analyze the legal criteria upon which such restrictions are measured. By showing the deficiencies and ambiguities of the law in force and criticizing the legislative approaches of Iranian law makers, this article will also provide some suggestions for legislative bodies, the Competition Council and judicial courts.

Ensuit des deux guerres mondiales, le sujet important des victimes et reparation de leur dedommaqements n'etait pas le premier souci de la communaute internationale pendant longtemps. A cette epoque, la question principale n'etait qu'application de la justice penale internationale centre des criminels internationaux.Apres la guerre froide et le conflit de Balkan, a travers de l'etabilssement des Tribunaux penaux internationaux de l'ex-Yougoslavie et Rwanda, malgre le silence des deux TPl a propos des droits de victimes, la loi organique de 1996 et les juridictions de Gacaca a Rwanda ont mit symboliquement l'accent sur le droit des victimes.En passant de cette phase, par l’intermediaire de l'emergence de statut de Rome, fondateur de la Cour penale internationale, le droit de la reparation en faveur des victimes a mit un pas en avant. Le droit a participer dans le proces penal, le droit d'etre maintenu et finalement le droit d'une reparation c'etaient reconnu par le nouvel arsenal penal. Depuis cette nouvelle approche, la victime peut demander une reparation mais elle n'est pas le parti principal de l'action penal sauf qu'elle peut deposer sa requete. Aujourd'hui, la reparation, au fur et a mesure est devenue une institution pouvant considerer en tant qu'une peine hybride ayant ces propres fonctions.

A general rule in most countries is to support people equally according to law and to their right and duties.In spite of this fact, in many juridical systems we see many discrimination which affect minorities. Based on racial, tribal, sexual, national and so many other reasons.In this essay, we try to explain and express the juridical purport of affirmative action as a means of confronting discrimination and to compare different opinion about it.

The first paragraph of Principle 85 of Iranian Constitution has prescribed experimental legislation with certain conditions; a form of legislation which has roots in the sixty-year approach of nationalparliaments and Senates. Studying the figurative and essential approach taken by Iranian legislation under this principle shows that, because of the inappropriate selection of the frame for delegation of power to parliamentary commissions, experimental legislation has been deviated from its purpose since the very beginning. ln addition to the clash with the characteristics of transparency and majority of parliament and the people's right to self-determination in legislating, because of the constitutional and ordinary law-maker's point of view and the lack of an element of evaluation, it has found one of the main particulars of experimental-functional rules which are distinct from experiments in legislation. So that, we can claimn that, thirty years after anticipating this subject in Principle 85 of the Constitution and despite the voluminous list of approved "experimental" laws, the Iranian juridical system lacks real experimental laws.

In the event of the death, or resignation or dismissal of the Leader, the Council of Experts shall take steps within the shortest possible time for the appointment of the new Leader. Up until the appointment of the new Leader, a council consisting of the President, the Head of the Judiciary, and a faqih from the Guardian Council, upon the decision of the Expediency Council shall temporarily take over all the duties of the Leader. This council shall take action in respect of items 1, 3, 5, and 10, and sections "d", "h" and "v" of item 6 of Article 110, upon the decision of three-fourths of the members of the Expediency Council. Whenever the Leader becomes temporarily incapable of performing the duties of leadership owing to illness or any other incident then, during this period, the Council mentioned in this Article shall assume its duties.

The notion of property rights, although a natural law concept, is enumerated as a key principle in the solidarity of both economic and political systems. it is, in turn, one of the first grounds of indisciplinary studies as well. This paper has as its objective to investigate the role and place of property rights in the establishment and promotion of economic systems. Analysis of the evoloutions of property rights, the role of property rights in the improvement of economic systems and reinforcing its other related sub systems, are among the objectives of this paper. Meanwhile, it explains some dimensions of intellectual property rights as an illustrative case in this regard.