رویه قضایی

Juridical developments in different legal systems and international instruments have moved towards modification of manifestly excessive or insignificant amounts of liquidated damages, and by forming a global movement, have been able to persuade legislators to co-operate with them. In Iranian law, although according to the exact wording of article 230 of the Iranian Civil Code judges are prohibited from increasing or decreasing the amount of liquidated damages, in recent years judicial precedent has opposed this oppressive law and has ordered its modification based on various grounds. In this article, in order to establish judicial precedent and standardize judgments, along with comparative studies in French, English and transnational law, two bases for modification have been proposed, first the “no harm rule” and second the narration “As long as the liquidated damages do not cover the total rent”. The more important question concerns the manner and amount of reduction of excessive liquidated damages or adding to an insufficient amount, and in this regard also, by examining judicial precedent and a comparative study of French and English law and international instruments, it is suggested that in order to modify an excessive amount, the amount of liquidated damages should not be equivalent to the amount of actual damages, since the dual function and nature of liquidated damage requires that its amount should be greater than the damage inflicted so that the judge may be able to reduce the agreed amount in an appropriate  and reasonable manner. in case of determined insignificant damage if breach of obligation is due to intentional or gross negligence, the obligor must compensate all the actual damages; Otherwise, the judge, based on reasonable custom, can rule to a proportionate amount beyond the determined amount, up to the limit of actual damages.

The question of whether arbitral awards can be recognised and enforced in different jurisdictions is one of the key concepts in international commercial arbitration. Public order is one of the criteria to not recognize and enforce foreign arbitration awards listed in Article 5.2.b of the 1958 Convention. Examining the standard of public order in the European Union in identifying international commercial arbitration awards constitutes the main topics of this article. One of these cases is doubt in the recognition and implementation of commercial arbitration awards and its compliance or non-compliance with EU laws. The review of existing restrictive legal procedures in this regard has formed the shape of the public order of the European Union in the recognition, implementation or non-implementation of commercial arbitration awards. Failure to pay attention to the considerations of the public order of the countries related to the arbitration can have adverse consequences, such as the failure to recognize and implement it in the implementing country.
This article examines the public order in the judicial procedures governing the European Union by the European Court of Justice with a descriptive and analytical method, in analysing how public order is considered at the level of the European Union.

Structure of the European Court of Justice:

The European Court of Justice is the judicial pillar of the European Union. Since its establishment in 1952, it has always played a significant role in the development of EU law. This institution is composed of three judicial pillars, which are: the European Court of Justice, the Court of First Instance and judicial boards. The European Court of Justice is the highest judicial authority of the European Union, which is headquartered in Luxembourg. The Court has the final word on matters related to the rights of the Union in order to guarantee its uniform implementation in all Member States.

EU Law and interaction with commercial arbitration:

The European Union and international arbitration awards have a challenging relationship with one another. The reason for this situation is mostly the interpretations that the European Court of Justice has ruled in its role of supervising the implementation of EU laws. In other words, the jurisprudence of the European Court of Justice plays a significant role in this regard. This article, in agreeing with other commentators argues that the European Court of Justice has become increasingly willing to rule against arbitral awards under the public order criterion. The most important reason for this issue is perhaps the wide range of EU laws, which over time have added new legal branches such as the law of protection of commercial agencies, the law of consumer protection and the law of competition, etc. within its framework. 

The judicial procedure of the European Court of Justice and the standard of public order:

The procedure of the European Court of Justice and subsequent decisions by the courts of European countries have expanded the scope of public order, which has become a gateway to the non-recognition and annulment of international commercial arbitration awards. Currently, there are many complex issues and challenges in EU law, such as combating trade discrimination, creating an economic and monetary union, creating a free trade area, security and justice, which may use the criterion of public order to avoid identifying and implementing the commercial arbitration award, based on any of them, is not far from reach. As a result of the rapid expansion of EU law, it has become increasingly difficult to predict the possibility of non-recognition and enforcement of a commercial arbitration award as a result of misinterpretation or misuse of EU law. In trying to establish the jurisprudence which is relevant on this matter, authors have made use of several high-profile cases. The first is the Eco Swiss case. In this case, although the European Court of Justice acknowledged that Member States have procedural independence in examining cases in accordance with EU law and domestic law, it recommended the restrictive application of the "principle of equality" and the "principle of effectiveness", and ruled that they are to be taken as mandatory. Second, is the Ingmar case. Here, similar to the previous case, European Court of Justice considered the application of the EU Directives to be mandatory, and stated that the Directives are a mandatory common language that the harmonized internal market of the European Union requires. The third, is the Mestaza case. In this case, European Court of Justice stated that in cases where the national laws require the court not to recognize the judgment based on the violation of national public order, the violation of EU laws should also be treated in the same way, and the basis of this decision is the general order within the European Union. 

The practice of applying EU public order regarding the recognition and enforcement of international commercial arbitration awards at the EU level raises the concern that if one of the trading parties is from the EU, they cannot rely on arbitration agreements. This is interpreted by the international business community as protectionism, where the free choices of the parties are ignored, and the entire arbitration process ins jeaopardized. Although the European Court of Justice declares that Member States have procedural independence in reviewing cases in accordance with EU laws and domestic laws, it has highlighted and mandated two promoting and limiting principles; namely the principle of equality and the principle of effectiveness.
The European Court of Justice does not propose any direct definition of public policy for the non-recognition of commercial arbitral awards. The Court pointed out the mandatory nature of the norms resulting from EU laws, which have the nature and importance of certain public interests. This exception needs to be properly defined in order to determine how far the general order of the European Union is extended. The lack of direct communication of the European Court of Justice with the courts and arbitration centers, regarding the acquisition of advisory opinions, along with the promotion of the expanded public order of the European Union, the work of the arbitration courts and arbitrators in issuing commercial arbitration awards based on this criterion faces the risk of non-recognition and implementation. If they do not, it makes it more difficult.

The issue of Disobedience or Nushuz (disobedience of sex by woman) and its brunches is raised both in jurisprudence, which originates from the word of revelation, and in the science of law, it has been considered by jurists and accordingly it is brought up in family courts by submitting a petition to compel the wife to obey or to declare and confirm the wife's Disobedience. By examining the issued opinions, it can be considered a lot of diversity and difference in jurist's opinions and views. The aim of this research is to investigate the causes of diversity and multiplicity of judicial procedure in the subject of Obedience or Tamkin and Disobedience.  This research which is written in the document-library method and done by descriptive and analytical type of research, uses obedience opinions and publications issued by family courts which are collected in the national system of judicial opinions and advisory opinions of the General Legal Department of judiciary. Lawsuits related to wife's submissiveness and disobedience depend to a large extent on the inference of the judge, and this issue has led to the creation of numerous procedures. Therefore, in order to reach a unity of procedure, it is necessary to analyze the judicial procedure in this regard and examine the degree of conformity or non-conformity of the opinions issued with jurisprudential foundations as well as the subjected rights. After investigating through the opinions issued and examining jurisprudential and legal sources on the issue of obedience and non-compliance, the result is that some issues and challenges related to this issue have jurisprudential roots and are related to differences of opinion among jurists, and some are related to the legal dimension and the legislative aspect of the issue, and finally, some issues are rooted in the implementation phase of laws and their application in this field. Some of the ambiguities in this matter can also be classified according to the stages of the proceedings, i.e., the stage of filing a lawsuit, proceedings, issuing the verdict and executing the verdict. This article is only focused on the judicial proceedings stage of Obedience and Disobedience cases.

This article was compiled with the aim of examining the possibility of filing a lawsuit for loss of opportunity in Iran's legal system and judicial procedure with a review of American law. In this article, the legal concept of loss of opportunity and its relationship with similar concepts such as loss of benefit and lack of benefit have been analyzed. Our goal in this research is to compare the legal system of Iran and America regarding the lost opportunity.

The research method in this article is descriptive, analytical and library method.

Ethical Considerations:

 From the beginning to the end of the article, the principles of honesty and trustworthiness have been observed.

The findings indicate that the existence of disagreements between jurists and jurists on the one hand, and the discussion about previous and current laws in accordance with the American law, on the other hand, creates serious challenges in this field; Because the legal system derived from jurisprudence in Iran, whose effects and signs are evident in the legislative process, on the one hand, they believe in compensation for the loss of opportunity, and on the other hand, some people do not consider these losses to be compensable.

Finally, the interpretation of civil laws, the opinions of jurists and the judicial procedure lead us to the conclusion that the damages caused by the loss of opportunity can be compensated without a doubt if they are real and definite.

One of the involved issues in precedent for Deficiency of the rules is dispossession lawsuit aboat Joint property. This lawsuit is subject to Special rules as such recognition and Solving Its ambiguities realizes Justly trial. So we started writing this article and The consequence was that in Judicial process; Judges do not have certain criterion for cognizance the ownership of the claimant and recognition the defendant in this lawsuit; Also, at the time of death or disability or change of one of the claimants or multiple defendants, they are confused; And in the stage of enforcement of judgments, these ambiguities were more be revealed So that How to deliver and manage the joint property and determine the standing property have serious ambiguity. In order to resolve these ambiguities; We hang on Article 43 of the Civil judgments enforcement Act and General Assembly of the Supreme Court vote No. 672 and Its defects were solved with Acceptance of two principles “The result of the dispossession lawsuit aboat Joint property transmits to all owners” and “Resolving disputes between partners depends on permission”.

In the discussion of land acquisition, there are always many challenges for land owners to file lawsuits and demand ownership rights in the judicial procedure. The purpose of this article is to examine the acquisition of real estate and land by government institutions from a jurisprudential point of view and its challenges in judicial procedure.

This article is descriptive and analytical. Materials and data are also qualitative and data collection was used in collecting materials and data.

Ethical considerations: 

In this article, the originality of the texts, honesty and trustworthiness are respected.

In jurisprudence, the acquisition of real estate and land by government institutions in line with public interests is accepted in the form of rules such as harm. This approach is also approved in the subject law, but due to the multiplicity of laws, the effect or lack of effect of the implementation of the plan in determining the price of land, the basis of the pricing of occupied land.

It is necessary to review and add some articles in the form of a single article in order to eliminate the aforementioned gaps, the necessity of establishing a quasi-judicial authority with a combination of representatives of land owners, government representatives and judges. Justice should be considered.

In Iranian law, the civil liability of municipalities, like other legal entities, is examined under the title of liability arising from the actions of others. The municipality is responsible for fulfilling its legal duties at the city level, and delegating these operations to contracting companies does not relieve the municipality of its responsibility towards citizens. Compensation for damages in civil liability is based on various theories, and the most important element of civil liability is the existence of harm resulting from a harmful act, such that a causal relationship exists between the two. Despite municipalities outsourcing their services to contractors and fulfilling their inherent duties through them, they are often liable for damages caused to third parties in service assignment contracts. The findings of this research regarding Iranian judicial practice also support the existence of inherent liability of municipalities for damages inflicted on third parties; however, there are also rulings indicating the non-liability of municipalities or joint liability for damages by both the municipality and the contractor. Nonetheless, the prevailing view considers municipalities responsible for compensating all damages incurred by citizens in the performance of their legal duties and obligations.

In the case of fraud, when contractual relations are involved, it is necessary to be ignored the solutions of civil law and rely on the objective aspects and rules of criminal law, by referring to the fundamental principle of "independence of criminal law", to establish the criminal elements. According to this, in the present research, in a descriptive-analytical way, with an emphasis on Iran's judicial procedure and the English legal system, it has been attempted to study the effect of legal and contractual relations on the commission of fraud. Accordingly, in the English penal system, "civil fraud" can be prosecuted by the prosecution under one of the forms of fraud. In Iran's jurisprudence, the "principle of independence of criminal law" has not been developed much, and often, encountering contractual relationships is the reason for issuing a verdict for staying the proceeding or an acquittal. However, apart from the titles, tools and solutions of civil law, the process and manner of concluding the contract must be examined to ascertain the criminal intent and the actus reus.

One of the most common grounds of claims for annulment of regulations in the Administrative Court of Justice is their retroactivity. These lawsuits are based on the claim that a specific situation regarding a specific issue has prevailed in the past and the provision being objected to has made a change in it. Examining the decisions rendered by the General Board and the Specialized Boards of the Administrative Court of Justice shows that judgment regarding the retroactive claim of regulations is sometimes accompanied by challenges. The specific question that is addressed in this article is, in what circum+stances can we say that a regulation has become retroactive. The answer to this question, as the main goal of this article, which is written in a descriptive-analytical method, requires knowing the situations that can that serve as the basis of this claim.To understand these situations, it is necessary to pay attention to the time-frames in when the events in question occur and the change in the situation that governs them. There are three time-frames for events: past, current (composed of past and future) and future. The change of the situation governing events can also refer to the change of the situation in the past, current or future. Based on these categories, eight situations can be imagined. Each of these situations includes two set of circumstances: existence of a suitable opportunity to adapt to the new situation or its lack. Among the decisions rendered by the General Board and the specialized boards of the Administrative Court of Justice, more or less examples of these situations can be found, some of which are mentioned in this article.

Arbitral awards are presented and reviewed in various categories. A well-known classification consists of domestic arbitral awards and foreign ones. Within these two categories, the procedural rules, the method of trial, applicable laws, the writing of judgment, subsequent processes, and enforcement proceedings are different from each other. The recognition and enforcement of foreign arbitral awards have been accepted more or less based on principles and objectives similar to those governing foreign court judgments. This measure demonstrates the flexibility of our national legal system regarding the principle of national jurisdiction and the authority of domestic judicial decisions, and possesses both legal and political benefits. From a legal perspective, it reflects the will of our legal system to promote and strengthen justice and from a political one, it contributes to legal relations and judicial cooperation on a global scale. Therefore, the Iranian government provided this possibility in 2001 by acceding to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Also, by gathering conditions and backgrounds from the provisions of Chapter 9 of the Civil Enforcement Law (Articles 169 onwards), a special courtesy can be considered in order to accept the request, review and make a decision on the recognition and enforcement of foreign arbitration awards, including the establishment of a special branch of the Tehran General Civil Courts. In this article, by selecting a judgment issued by a specialized branch, we examine the way the Iranian judiciary deals with the aforementioned issue and the important points and elements regarding this matter.

Arbitration, as one of the most significant alternative dispute resolution mechanisms, has always been a subject of interest in various legal systems. One of the key challenges in this area is the feasibility of legal persons playing an arbitration role. In some countries, including Germany and Belgium, arbitration conducted by a legal person is accepted, while in the French and English legal systems only natural persons are recognized as authorized to arbitrate. This issue is also a matter of dispute in Iranian law, and different opinions have been presented regarding the permissibility or non-permissibility of arbitration conducted by legal persons. This article examines the concept of arbitration of legal entities and its difference from institutional arbitration, analyzing the pros and cons of this issue. It also examines the legal foundations, benefits, and challenges of accepting arbitration conducted by legal persons, and concludes by offering suggestions for improving the arbitration system. The results of this study show that although arbitration of legal entities can help increase efficiency and specialization in resolving disputes, challenges related to the independence, impartiality, and personality of the arbitrator are still considered major obstacles to its acceptance.

The margin of appreciation is one of the most controversial means in international law for making a balance between complying with international order and exercising the sovereignty of states. Whereas the promotion of world order requires that states avoid, as far as possible, discretionary and arbitrary measures, their increasing tendency toward the application of international requirements needs to vouchsafe certain degrees of appreciation. However, there is some ambiguity in its conditions and its scope. Using a descriptive-analytical approach, this research has considered the attitude of certain international and regional dispute settlement bodies, including the International Court of Justice, WTO dispute settlement body, International Criminal Court, European Court of Human Rights, and European Court of Justice about various dimensions of this matter. The research concluded that despite the of variety viewpoints among dispute settlement bodies and international tribunals, there is approximately a similar approach to them as a whole. But it isn’t concluded that the margin of appreciation is the same in all international law fields.

Gender reassignment is one of the new and challenging topics in Islamic jurisprudence and law, which requires careful examination from different angles due to its impact on religious rulings and civil laws. This study, titled Effects and rulings of male gender reassignment in Islamic jurisprudence and law, examines the consequences of this phenomenon on worship, religious rulings, civil status, family rights, inheritance and wills, and analyzes the related jurisprudential and legal perspectives. In the area of  religious rulings, male gender reassignment causes changes in his religious duties such as prayer, fasting, Hajj and other religious rituals. From the perspective of family law, gender reassignment leads to the dissolution of marriage, changes in financial rights including dowry and alimony, and creates challenges in the custody of children. Also, in the field of civil law, the correction of identity documents and the legal status of an individual after gender reassignment are important issues for which various legal procedures have been presented. In the discussion of inheritance and wills, gender reassignment may affect the amount of an individual's share of the inheritance and the way a will is prepared, and there are different views about it. In this study, all articles published in Persian until winter 1403 on the effects and rulings of male gender reassignment in jurisprudence and substantive law were reviewed. These articles were obtained by searching databases, the Ciolika scientific database, sid.ir, Google scholar, the Medical Law Quarterly, family law publications, national conferences of scientific studies and research in the humanities, using keywords such as gender reassignment, Islamic jurisprudence, family law, judicial procedure, jurisprudential consensus, legal challenges, and the Normags scientific database. It was also extracted from the above-mentioned articles and websites from reputable scientific journals.Ethical considerations: This article was written taking into account ethical considerations such as honesty, trustworthiness in text analysis, and citation. Finally, this study has provided solutions to reduce the challenges associated with gender reassignment by providing suggestions such as formulating clear laws, creating jurisprudential consensus, and increasing public awareness. The results of this study show that formulating integrated jurisprudential and legal regulations can facilitate the legal status of transgender individuals and help prevent legal and social discrimination

The conflict of criminal jurisdiction in cyber crimes is a very fundamental challenge; Because the lack of clear demarcation in this space and ultimately the impossibility of implementing "territorial jurisdiction" as a basic factor in determining jurisdiction, leads to the application of other jurisdictional principles in this field, And when this case is proven in connection with multiple jurisdictions and two or more different courts consider themselves competent in dealing with a crime, we will face a "conflict of criminal jurisdiction" in the cyberspace; which leads to a conflict of jurisdiction in the courts of a country or in the international area.In response to these conflicts, the judicial system of the United States of America has put its approach to the use of traditional legal rules in this field and in line with the use of the criteria of " Minimum Contact Principle", " Purposeful Direction " and " Principle of Foreseeability" to solve this conflict; which has faced major challenges in the operational phase. With the help of the descriptive-analytical method, the present article examines the challenge of the conflict of cyber laws and its solution in the judicial procedure of the United States of America; that the findings of the research show the ineffectiveness of traditional rules in this field; In this regard, the need to change the attitude and apply the special rules of the cyber space and achieve the approach of " Res Extra Commercium " in this space seems inevitable.

Sexual crimes have been among the crimes against chastity and morals, which have been criminalized by the legislator of the Islamic Penal Code, and according to that, appropriate punishments have been considered for the occurrence of this crime. Sexual crimes are one of the challenges in today's societies that must be examined from different aspects in order to obtain comprehensive and complete results. Victims of sexual crimes are part of vulnerable groups due to their special characteristics, and since committing sexual crimes plays a very important role in the family and society, these victims will endure severe consequences that make them need support in order not to become secondary victims. makes a special Prevention methods by judicial authorities, including bailiffs, are comprehensive and comprehensive. Therefore, in this article, let's examine the characteristics of legislation and the role of judicial procedure in reforming criminal prevention methods in sexual crimes and evaluate the issues related to it.

Custom, alongside treaties and general principles of law, is one of the important sources of international law. One of the reasons for the significance of custom is that it is unwritten and always dynamic. This advantage has led to an increase in reliance on custom. International law requires states to recognize and implement the customary international rules within their legal systems. For a national judge to refer to custom, it is necessary to clarify the position of this source within the domestic legal structure. Given that custom cannot be proposed and enacted in legislative bodies, the role of courts becomes even more crucial. In this context, examining the pracrice of countries with a common law legal system will provide useful insights. The main question of this article is what position judges in England assign to international custom and in what contexts do they they utilize it? This research shows that international custom has a significant role in the English judicial system.

Given the extensive scope of damage compensation rights and the intricate regulations governing them, parties involved in actual or potential causes of loss constantly seek ways to ascertain the extent of their liability, hoping to avoid substantial and unpredictable compensation claims. This is only possible via the intersection of civil liability and contract law, which can manifest itself in various forms. However, there may be some complications. Despite their similarities, such agreements may result in different outcomes, and disregarding these differences can lead to adverse consequences. In this regard, a Contract of Conciliation offers useful applications and can serve as a reliable solution for compensating losses. However, compensation conciliation requires adherence to the principles governing such contracts. Although legislators sometimes deliberately restrict individuals' autonomy in matters concerning compensation conciliation, in instances where the law remains silent, judicial proceedings are required to address the related issues, shortcomings, and ambiguities. Compensation conciliation holds legal justification as long as it does not abuse the position of the injured party. Therefore, the authors used a descriptive-analytical method to state the problem and substantiate this argument. Moreover, no specifications were considered when investigating the general rules governing compensation conciliation except in cases of public order and mandatory laws.

The legal requirement for draft, and the delivery of the cheque into the Sayyad system, is prescribed in Cheque Issuance Act; article 21, note 1. Regarding to cheques that not submitted in Sayyad system are not govern under Cheque Issuance Act .The situation of this non submitted cheques in compliance with holder rights related issuance and delivery is needed to review and it seems with there is legal gap resulted casue dispute in the judicial procedure. The major requirements of the cheques has been determined in Tejart Act, and the changes in the Cheque Issuance Act has caused legal disputes in this requirements; in this matter the aim of the legislator and legal phrases has a single significance as to the abrogation or not implied abrogation Commercial Act.implied abrogation is an exception because contrary to express abrogation; in this situation conflict in a single issue is attributed to the legislator,The purpose of the legislator was to supervised the cheques in circulation and increase their credits, for example the use of stolen and lost cheques were limited. On the other hand, the terms of the above regulation have only excluded the unregistered cheques from the scope of the Cheque Issuance Act, and in the sense of negating the possibility of the flow of the provisions of the Commercial Act on this cheque. In the present research, emphasizing on the judicial procedure and existing disputes, the examples related to the present discussion are analyzed analytically

The Islamic Penal Code of 1392, with its late entry into comply, has accepted extreme or excessive legitimate defense and developed legitimate defense. From the point of view of the new legislator, the Imperfect legitimate defender on the other hand, and is not the same as someone who in an aggressive and oppressive manner, he commits another murder, and on the other hand, in intentional murder, he deserves to be decriminalized from the punishment of retribution without absolute decriminalization. Despite this, it is recommended to consider Note 2 of Article 156 and Note 2 of Article 302, the need for a logical interpretation in determining the rule. The acceptance of legitimate defense requires an extreme, even though in this decision, both the conditions of defense and the degree of defense have been taken into account. The current research, using the analytical-descriptive method and collecting the required information in the library method, and relying on the cases of intentional homicide in the criminal justice system, Iran tries to evaluate the impact and impression of the judicial procedure of legal duality with the approaches of punishment based on defense conditions. and show the levels of defense, and at the end, while emphasizing the need for consistent criminal policy in order to protect the rights of walid the conclusion is reached that Note 2 of Article 302 is only about crimes and is based on non-observance of the levels of defense despite the necessity and truth of the principle of defense And the position of Note 2 of Article 156 also applies to other crimes in the absence of one of the conditions of legitimate defense .The effect of extreme legitimate defense in crimes is the deliberate impunity of revenge, and in other crimes, it is simply the imposition of the burden of the lack of defense conditions on the defender from the attacker.