مجله حقوقی دادگستری
پیاپی 73 (بهار 1390)

In connection with foundation of civil liability in the Iranian and French law, the theory of fault as the rule and theory of risk as the exception has been pointed. Nowadays, the civil liability is not subjected to a uniform rule and the basis of the civil liability in the various domains, specially in transportation, has been changed. The said domain is one of the most important areas for the commencement of the developments in the fundamentals of the liability, so that some jurists say that there is a “Special Regime of Civil Liability” in transport law. In other hand, there is dispute whether the liability of the carrier is a contractual liability or a natural liability. In terms of taking one of these decisions, the foundation of liability is differed. In this article, the comparative method of this subject has been studied.

The decree of state exemption from the payment of court costs in Iranian statute law has been accompanied with the abundant up and down. Although such an exemption had been specified in the civil procedural code, 1939, it has not been indicated in the civil procedural code of the public and revolutionary courts in civil affairs, 2000. In spite of passing the judicial precedent by General Board of the Supreme Court and prescription of the duty of the government in payment of court costs, the existence of some special laws indicating the exemption of some institutions and organizations from payment of these costs and insertion of uncertain words in the Budget Act, 2011 specifying the exemption of “Lawsuits on Preservation of Public Treasury’ from the payment of the said costs, has been increased to these ambiguities, the subject which is required the adoption of the strict position by legislator.

Relationship between morality and law is a priori. Ethics also applies in to adjudication. Non-determination raise legal question to moral one so there is no difference between substantial and formal rules in regard of incertitude. Judge should find the most moralist interpretation in case of without notice recorded voice’s credibility; A decision that can preserve its justifiability and his judgment’s equitability. In our opinion, it is the force of morality that requires moral decision; a force in nature of moral element that direct judicial review to it.

One of the complex issues in prove claims of evidences to Islamic law and statute law is in principle conflict or appearance and this complexity, Has various causes that one of those is differences in Examples of principle conflict with appearance or appearance with conflict. If appearance of the evidence known and appointed census being from lawgiver, there is no doubt in priority of appearance with principle, such as Unit News, confession and testified and like these. But there is some disagreement between jurists and lawyers in principle priority or appearance, if the appearance is understood through indications, customs and habit, dominance and prevalence and the like. Most jurists in conflict of principle and appearance, believe that the appearance is prior to the principle. Notwithstanding, the examples can be found that principle is prior to appearance. The cause is that many jurists merely rely on the appearance attested by the legislator. In this paper, the priority of the principle with the appearance is resulted, while studying the examples of the principle and appearance conflict.

Competition law is conceived as one of the most important factors in the success of free market economic systems. The idea is that if free competition exists among activists at production and distribution of goods and services, economic efficiency and ultimately total welfare will increase. While this new branch of law has long provoked fascinating interdisciplinary discussions among economists and lawyers, the legal system of Iran has recently taken the first step in this field. So it is required that from now that the underlying premises and principles of this area of law are properly discussed and examined to pave the way for deeper future researches. Certainly one of the most important and basic questions about any new regulations which it is of a determinant role in interpreting their provisions, is goals which those regulations seek to achieve. Lawyers and legal systems have no consensus on objectives of competition law. Generally, multiple goals for the said regulations are conceivable that sometimes run at odds with each in execution stage. The following article, relying on Iran legal system is to explain the objectives of competition law. It shows that the “Soul” of competition law is the preservation of competition to promote efficiencies for consumers.

Letter of credit(LC')due to its special characteristics, is one of the most prevalent methods for payment in international transactions. By establishing the Uniform Customs and Practice for Documentary Credits (since) 1933, in order to unification of the rules governing letters of credit, International Chamber of Commerce) ICC) has tried to clarify this method of payment. ICC has standardized issuing of the documents related to letter of credit, so as to declining problems which are come across with engaged parties due to this method of payment. However, despite these efforts, still numerous ambiguities surround this method of payment, especially banks are challenging with several problems in connection with the documents presented by the beneficiaries. This shows that prevailing rules on the principle of strict compliance of documents are not clear enough. In order to enhance the letters of credit’s efficiency, this paper will try to review the contrast interpretations regarding the concept of the principle and provide solutions for the above problems. This study includes all engaged parties in)LC)’s operations and specially will examine Doctrine of Strict Compliance in Commercial Invoices.

Vast majority of lawyers believes that commission agreement has the legal nature of an agency. Notwithstanding, in view of the obvious differences between the said agreement and the agency contract, it is incorrect to describe commission in the light of agency contract. Therefore, the legal nature of the said agreement must be determined properly with respect to the essential attributes and elements of the said agreement. Contract of hire of persons, that has been fruitful in analysis and practice, may properly describe the nature of the said agreement, and make it compatible with the Iranian legal system.