جستجوی مقالات مرتبط با کلیدواژه "نظم عمومی" در نشریات گروه "فقه و حقوق"

Punitive damages are awarded to punish wrongdoers and discourage them from repeating harmful conduct. While such damages are widely accepted in some legal systems, several other countries do not have a favorable approach to it. In such situations, if the court orders punitive damages in an international case, enforcing it in other countries will be difficult. Therefore, this research aims to answer whether foreign punitive damages will apply in these countries by examining Iran's laws and Italian and French jurisprudence. This article shows that in Iranian law, according to the principle of full compensation, the civil liability system has a primary compensatory function, but with the existence of institutions that also follow the function of punishment and deterrence, it must be accepted that the enforcement of punitive damages is not against the concept of Iranian public policy. Initially, Italian and French courts had a negative approach towards the enforcement of punitive damages Because they believed that the punitive damages awards cause unjust enrichment for the victim and the interference of private individuals in the duties and rights of public authorities, which violates the compensatory function of the civil liability system. However, this attitude changed over time, and the courts of these countries accepted the enforcement of punitive damages.

Arbitration is considered one of the most important and widely used methods for resolving international commercial disputes. Despite the enactment of the International Commercial Arbitration Act in Iran, numerous obstacles still hinder the enforcement of foreign arbitral awards. These obstacles may arise from legal gaps and ambiguities, inconsistent judicial practices, broad interpretation of the concept of public order, as well as political and economic constraints. This study examines the legal foundations and regulatory framework governing foreign arbitration in Iran, identifies and analyzes the key challenges and obstacles. Additionally, through a comparative study of leading legal systems and international standards, solutions and reform proposals are presented to address the existing deficiencies. These solutions include amending domestic laws, establishing specialized courts for international arbitration disputes, providing a more precise definition of public order, and enhancing international cooperation through accession to or more rigorous implementation of global conventions. Ultimately, the study concludes that overcoming legal and practical barriers in Iran will facilitate foreign trade and investment and significantly strengthen global confidence in the Iranian legal system.

A trademark is a sign that distinguishes the origin of the goods and services of a commercial enterprise from the similar goods and services of another enterprise. The consumer considers the trademark as a guide to trust the quality of the particular product and service. A trademark benefits from all or some legal protection when it is registered in the Industrial Property Office. Trademark registration is subject to all legal requirements. One of the conditions that the Law of Patents, Industrial Designs and Trademarks of the Islamic Republic of Iran deems necessary to register a trademark of the applicant is that the trademark does not conflict with public order and morals (in the general sense of the word). Public order and good manners are among the terms that have not been defined clearly. These concepts are a bit more complicated when it comes to trademarks; Because, on the one hand, the trademark and its contents by themselves can be against public order and good morals, and on the other hand, the trademark itself may not be against public order, but the goods and services that the trademark refers to are among the prohibited goods.

The issue of recognition and enforcement of foreign court judgments in Turkish law is regulated between articles 50 and 60 of the Private International Law and Procedure Law (MÖHUK) which was implemented on 12.12.2007 No. 5718. According to these regulations, one of the necessary conditions to realize the recognition or enforcement of a judgment of a foreign court in Turkey is that "these judgments should not be clearly contrary to the public order of Turkey." and the scope of this concept will be mentioned, then brief information about the criteria that are taken into consideration in the recognition and enforcement of foreign court judgments in Turkish private international law will be presented. In the following, we will focus on the "public order" intervention and provide detailed comparative information that is the subject of our study.At this stage, the reduced impact theory that explains public order intervention and the purpose of this intervention will be described. In the framework of the prohibition of appeals, the boundaries of public order intervention and the limits of the judge's powers will be examined in the field of basic and ritual criteria. During these reviews, in addition to the Turkish doctrine, the views of the German doctrine will also be discussed and the theoretical knowledge will be tried to be concretely presented in the light of the decisions of the Turkish Supreme Court.

It is not hidden the position of thesis and research in the expansion of science and knowledge and the improvement of the boundaries of knowledge to anyone, but assigning its compilation in exchange for paying compensation to individuals and institutions, weakens and undermines the goals of scientific research and disrupts the order of the academic community. Therefore, it is necessary to examine the jurisprudential and legal ruling of thesis writing agreement for others by relying on public order and good morals, so that an effective step can be taken to prevent this problem by resorting to Sharīʿah and the law. The results obtained in this regard by a descriptive-analytical method indicate that reciprocal contract (commutative contract) of writing a thesis for others in Jaʿfarī jurisprudence and Iranian law is against public order and good morals and it is an illegitimate contract in this regard, in Jaʿfarī jurisprudence, and this private contract in Iranian law is not formed at the time of execution.

A group of rights are imposed on people based on their gender, therefore, gender recognition is a requirement for belonging of this part of rights to people. In most of the cases, it is possible to identify the gender easily and without the requirement of specialized precision, but in some cases, gender and sexual ambiguities make the identification difficult. One of these cases is transsexual status, who consider themselves to have a different gender from their physical structure.The possibility of gender reassignment surgery prompted a group of jurists to consider the changed body structure as the basis for identifying a new gender. Following the custom, they considered the apparent gender to be the criterion of recognition and because of changing of gender due to the surgery, they considered the surgery to be the origin of the new gender recognition; An approach that is currently accepted in the legal system of our country. On the other hand, the results of scientific studies rejecting the effectiveness of the previous criteria, indicated the key role of gender identity in identifying the gender of transsexuals.In contrast to these two views, the effectiveness of gender identity in the identification of transsexual and also the greater compatibility of this criteria with jurisprudential-legal foundations, all testify to the superiority of this criteria. The conclusion is that it is appropriate for the legislator to adopt a new approach for the identification of transsexuals while trying to enter the concept of gender identity into legal concepts.

The purpose of this article is to examine the exceptions to the enforcement of foreign arbitration awards in the Iranian legal system. This article is descriptive-analytical in nature. The materials and data are qualitative, collected through note-taking methods. The findings indicate that the most significant exceptions to the enforcement of foreign arbitration awards in the Iranian legal system include the conflict of the award with public order, the invalidation of the arbitration award if it contradicts substantive law, the legal validity of the arbitration agreement prior to the approval of the Council of Ministers or the ratification by the Parliament, and the discrepancy between arbitration awards and Article 139 of the Constitution. Article 139 of the Constitution thoroughly identifies the enforcement of arbitration awards concerning state property, and Article 457 of the Civil Procedure Code subjects arbitration over public and state-owned property to the approval of the Council of Ministers and the Islamic Consultative Assembly, thereby imposing certain restrictions on these properties. The conclusion is that the protection of state sovereignty concerning the arbitration of public and state-owned property is evident in judicial practice. The predominant judicial approach is that the restrictions outlined in Article 139 apply to state-owned properties, municipalities, and their affiliated companies. This research aims to examine the exceptions to the principle of equality in the enforcement of foreign arbitration awards in the Iranian legal system and to define its boundaries.

Public order and good morals are two general concepts that have important effects in various legal fields, including contracts, etc. The purpose of this research is to examine and explain the concepts, types, examples, functions and effects of public order and good economic ethics in Iran's legal system and Imami jurisprudence.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Ethical Considerations: 

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

The findings of the present research show that the general economic order and good economic ethics are considered the source of principles and rules in Iran's legal system and Imami jurisprudence. In fact, the function of these two concepts is not merely a negative function in the direction of "negation"; Rather, these two concepts can also have a positive function

The general economic order of the source, due to its textuality, is compatible with the law - the same government tool - but it is different from it. Because on the one hand, the provisions of all legal articles are not considered part of the general economic order. The good economic ethics of the source is not textual, and this point makes its positive function more effective; A source that is beyond the text, the place of emergence and discovery of legal rules and principles, compensates for the textual gap and results in the flexibility of the legal system and its exit from rigidity.

In the past two decades, Europe has had numerous conflicts resulting from the clash between freedom of expression and religious insults. The European legal system considers freedom of expression as one of the fundamentals of a democratic society and a basic condition for individual progress and self-actualization. The central approach of the European Court of Human Rights is that freedom of expression includes not only non-insulting statements but also offensive, shocking, or provocative statements. However, this court seeks to resolve the conflict between freedom of expression and blasphemy and create a balance among different interests. On the one hand, under “protecting others’ rights,” the court spoke of banning severely insulting statements that cause significant distress to religious followers. On the other hand, from a societal perspective, the court considered the risk of a public outcry from religious societies due to religious insults. Recently, however, the court gave significant weight to the political, scientific, and artistic aspects of expression when balancing freedom of expression against religious sensitivities, thereby expanding freedom of expression’s scope. Nonetheless, the threat to public order remains a key factor in the court's decisions to restrict statements containing religious insults. This study used a qualitative method based on content analysis with a descriptive-analytical approach and employing library and internet sources.

Introduction :

The inherent complexity in interpreting legal texts is often exacerbated by conflicts that arise between absolute and conditional affirmative rulings. An absolute ruling, devoid of qualifications or constraints, carries a distinct interpretation compared to a conditional ruling that is subject to specific prerequisites or conditions. This dichotomy becomes especially pronounced in Islamic jurisprudence, where absolute and conditional terms possess particular meanings informed by Moqaddamat al-Hikmah (conditions altering the absolute meaning to a general one). The linguistic and jurisprudential understanding of absolute and conditional rulings necessitate careful interpretation to avoid contradictions and ambiguities in legal practice. Within principles of Islamic jurisprudence [Usul al-Fiqh], scholars have rigorously debated the scope of Moqaddamat al-Hikmah, particularly when both absolute and conditional rulings appear to affirm each other in legal texts. This issue presents a significant challenge in imperative rulings, where adherence to the conditional can be viewed as recommended (but not obligatory) [mustahabb], thereby reconciling it with the absolute. In contrast, postural rulings, which pertain to the positive affirmation of both conditions, are less straightforward and reveal the need for a nuanced framework.The application of these jurisprudential principles to statutory laws remains underexplored. The legislative language used in statutory laws often reflects both absolute and conditional directives, posing a challenge for interpretation, especially when positive affirmation is required. Thus, investigating the applicability of principles derived from Islamic jurisprudence to statutory laws becomes essential in addressing these conflicts. 

 Research Question :

The primary research question guiding this inquiry is whether the conflict resolution mechanisms developed in principles of Islamic jurisprudence for reconciling absolute and conditional affirmative rulings can be applied to statutory laws. Specifically, this research seeks to explore the challenges of extending these principles from the realm of Islamic jurisprudence to statutory law interpretation, particularly in cases where both absolute and conditional rulings are positively affirmed. 

Research Hypothesis  :

The hypothesis posits that the doctrinal principles established in principles of Islamic jurisprudence for resolving conflicts between absolute and conditional affirmative rulings can be effectively extended to statutory laws. By adapting these principles, it is anticipated that statutory law interpretation can be unified and standardized in a way that aligns with Islamic judicial practices, providing a coherent framework for legal practitioners. This unification is hypothesized to outweigh the challenges of reconciling these principles with the unique structure of statutory laws. 

Methodology & Framework, if Applicable :

This research adopts a doctrinal approach, focusing on a critical examination of both classical and contemporary sources within Islamic jurisprudence and statutory law. The doctrinal method involves analyzing legal texts, judicial interpretations, and scholarly commentary to understand the principles governing absolute and conditional rulings. Key elements of the methodology include:     Literature Review: An extensive review of classical and modern principles of Islamic jurisprudence texts to identify the principles and definitions of absolute and conditional rulings. Special attention is given to works addressing Moqaddamat al-Hikmah and its interpretation across different Islamic jurisprudential schools.Comparative Analysis: A comparison of principles found in Islamic jurisprudence with those in statutory law to identify similarities and differences. This analysis involves reviewing existing statutory laws to detect instances of conflict between absolute and conditional affirmative rulings. Synthesis:Synthesis of findings from the literature review and case studies to develop a framework for extending Islamic jurisprudential principles to statutory law. This framework aims to reconcile affirmative absolute and conditional rulings within a unified judicial practice.  By combining these methodological elements, this research strives to produce a comprehensive analysis of the applicability of Islamic jurisprudential principles to statutory law, offering practical recommendations for legal practitioners. 

Results & Discussion :

The research findings reveal significant nuances in resolving conflicts between absolute and conditional affirmative rulings within Islamic jurisprudence and statutory law. These distinctions primarily emerge in imperative and postural rulings, and an analysis of the results helps in understanding the mechanisms that principles of Islamic jurisprudence offer. Imperative Rulings: In imperative rulings, Islamic jurists have differing opinions regarding the reconciliation of absolute and conditional rulings. Some jurists argue that conditional rulings should be interpreted as Mustahabb (recommended) rather than obligatory, allowing them to coexist harmoniously with absolute rulings. This approach effectively retains the integrity of the absolute ruling while offering additional guidance through the conditional provision. Other scholars advocate directly reconciling absolute and conditional rulings by allowing the conditions to modify the absolute nature, ensuring consistency in legal interpretation. In statutory law, however, the approach requires further refinement. The interpretation of conditional rulings as merely recommended is not feasible due to the mandatory nature of statutory regulations. Thus, in imperative statutory rulings, the primary solution lies in finding a way to reconcile absolute and conditional rulings. The results suggest that adopting a hierarchical interpretation, where the conditional complements the absolute without altering its foundational framework, provides a practical approach.Postural Rulings: Most scholars agree on reconciling the absolute with the conditional in postural rulings, provided that the unity and consistency of obligation and ruling are maintained. In postural statutory rulings, the essential requirement for determining and reconciling the conflict between absolute and conditional provisions is establishing the unity of cause and criterion. However, establishing unity is more complex in postural contexts due to the layered nature of statutory regulations.
 In both imperative and postural statutory laws, unity of cause and criterion can sometimes be inferred directly from the legislative texts themselves. In other cases, it can be deduced from external evidence pointing to a legislative intent to connect the conditional to the absolute. A systematic approach to inferring unity of criteria and cause is required to effectively harmonize conflicting statutory provisions.Broader Context and Application: The broader analysis reveals the importance of systematizing the unity of cause and criterion when reconciling absolute and conditional rulings. By adhering to principles that align absolute and conditional provisions, judicial practices can remain consistent and coherent. However, solutions like repealing statutory provisions instead of reconciling them or maintaining adherence to both absolute and conditional provisions without verifying unity create ambiguity and inconsistencies in legal interpretation. Moreover, the study uncovers challenges in reconciling principles from Islamic jurisprudence with statutory legal frameworks due to differences in language, intent, and legal culture. The discussion underscores the need for a hybrid methodology that respects the foundations of Islamic jurisprudence while acknowledging the structural requirements of statutory law. 

Conclusion :

The reconciliation of absolute and conditional affirmative rulings in Islamic jurisprudence and statutory laws requires a nuanced understanding of both legal frameworks. In Islamic jurisprudence, jurists have articulated different approaches depending on whether the ruling is imperative or postural. In imperative rulings, opinions vary between interpreting the conditional as recommended or reconciling the absolute directly with the conditional. In postural rulings, consensus exists among scholars regarding reconciliation, given that the unity of cause and criterion is established.In statutory laws, the approach to resolving conflicts between absolute and conditional rulings differs fundamentally. Conditional rulings cannot be interpreted as merely recommended due to the obligatory nature of statutory regulations. Thus, the only viable solution in imperative statutory rulings is to reconcile the absolute with the conditional, finding a harmonious interpretation that does not detract from the clarity or intent of either provision.For postural and imperative statutory laws, establishing unity of cause and criterion is essential yet challenging. Scholars infer unity from textual and external evidence, while statutory interpretations rely on legislative intent and the broader context of the law. Adhering to these principles ensures consistent application and interpretation. A systematic framework that reconciles absolute and conditional rulings can better coordinate statutory provisions, avoiding repeal or strict adherence without unity verification. Ultimately, the study demonstrates the feasibility of applying principles from Islamic jurisprudence to statutory law, emphasizing the importance of a unified judicial practice. However, this must be balanced with the challenges inherent in adapting traditional jurisprudential principles to contemporary statutory frameworks. The proposed framework seeks to achieve this balance, offering legal practitioners a coherent methodology for resolving conflicts between absolute and conditional affirmative rulings.

Nowadays, individuals can gain fame through the media based on their abilities, luck or due to their attribution to other people. The formation of fame for individuals has two inevitable effects and risks: On the one hand, people in society are interested in knowing the details of a famous person's life, and therefore the famous person is exposed to the risk of violation to privacy right. On the other hand, because of prevalence of different types of the media, modern fame has gained commercial value, so that the suppliers use the identity characteristics of a famous person to promote their goods and services to increase their supply. To deal with these two dangers, the legal system uses two solutions: first, by using the general and pre-existing right to privacy, which is rooted in personality rights and human rights, it tries to prevent the violation of the privacy of these people. Second, by inventing a new right as the right of publicity, which is both rooted in property rights and personality rights, it organizes the commercial use of the identity characteristics of celebrities. Financial effects of this right (assignability, waivibility, descendibility, etc) must be adjusted in interaction with personality rights and public order.

Clothes designing is highly considered as one of the most crucial components of the clotheproduction, marketing and sales process which might be relevant to the shape or its patterns. If these designs meet the conditions stipulated in the laws, they will enjoy literary and artistic property rights. While in American law, the conditions of protecting legally refer to originality and fixation in a tangible medium. Simultaneously, in America, granting copyright to clothes designs, even assuming that the conditions of protection being fulfilled, encounters the important obstacle as its applicability. In Iran 's law, according to the Law on the Protection of Authors' and Composers' Artists' Rights, clothes design might be protected if they are original and expressed. Referring the Law on Regulating Fashion and Clothes, taking into account the necessity of adhering to the original values of the society and maintaining veil and Public Chastity, has foreseen the condition of adapting Iranian-Islamic symbols for the copyrightability of clothes designs. The results of this article, has been vividly depicted with a descriptive-analytical method, the Iranian legislator has preferred maintaining public order and good morals over protecting the rights of creators of clothes designs, considered a worthy action.

The relationship between public law and criminalization is one of the important issues that has not been given much attention and investigation. The most important issue in this regard is public interests on the one hand and individual freedoms on the other hand, as a result of which the element of expediency and public order prevails, these freedoms may be limited. This has made it necessary to examine the impact of public law on criminalization with an emphasis on public welfare and order. The current article is descriptive and analytical and has investigated the mentioned subject by using the library method. The results indicate that from a jurisprudential point of view, the components of public law such as expediency and public order, public security, human dignity and non-harm to the society are important bases of criminalization. From the point of view of the subject law, non-harm and necessity and social benefit, along with public order and security, are the most important bases of criminalization. What is important is that there should be a balance between public rights and individual freedoms and the scope of public order and expediency should not be defined so widely that individual rights and freedoms are limited and ignored. Although the legislator does not have the ability to deal with decision-making institutions regarding the rights, it is correct to reduce this influence as much as possible in the field of criminal law and to use criminalization only in the case of threats to individual or community rights. This should also be done with clear and explicit rules.

Peaceful settlement of disputes is one of the great achievements of human civilization and we are the heirs of this precious and valuable heritage. The New York Convention with the main and fundamental issue of recognition and enforcement of agreements and foreign arbitration awards is the result of the aforementioned legacy, which has remained popular for 60 years and its fundamental mission is to standardize the laws and procedures of recognition and Sees the implementation of arbitration decisions and agreements. According to paragraphs a and b of paragraph 2 of article 5 of this convention, respectively, arbitrability and public order are among the obstacles to the recognition and implementation of issued decisions, which the courts can refer to. These predicted criteria, whose mission is to support and protect the basic principles and standards of the rights and values of each country, and which are considered to be among the judicial supervision of the country that recognizes and enforces the decision, are closely related to each other, and it is assumed that each Multiple arbitrability and the impossibility of referring some specific cases to arbitration have been formed based on the general order of the countries, although they have common roots, they are distinct from each other and they are different from each other. The effort of this article will be to focus on explaining this importance and specifying the limits and boundaries of these criteria and obstacles to identifying and implementing foreign arbitration awards.

The purpose of this article is to examine the place of order and public interest in criminalization in Iranian jurisprudence and criminal law and European law. The present article is descriptive and analytical and has investigated the mentioned subject by using the library method. The results indicate that from the point of view of jurisprudence, expediency and public order, public security is one of the important foundations of criminalization. From the point of view of the subject law, social necessity and benefit, along with public order and security, is one of the most important bases of criminalization. In European law, the principle of harm, the prohibition of disturbing others, the principle of protecting the rights of the general public is the main basis of criminalization, which itself is the basis of order and public interest. The important and subtle difference between Iranian jurisprudence and criminal law and European law is that in Iranian jurisprudence and criminal law, the emphasis is on public order and expediency, but in the European Union, the emphasis is on public benefit. Public interest is one of the words that is ambiguous to a great extent and is very open to interpretation, but public interest generally includes benefit and public good. The vagueness and breadth of the concept of public interest sometimes causes maximum criminalization.

General Principles of Law recognized in civilized nations, as one of the main sources of international law, has played an important and effective role in international arbitration tribunals compared to other parts of international law. So far, no article has been done that independently examines the function of this source of international law.

This research was done using descriptive analytical method.

Applicable law, Protection of legal order, the basis for law making, interpreting the rules of international law, and a rule in international law are the functions of this main source of international law.

In the French legal system, in order to control the fairness of the terms and judicial supervision of consumer contracts, two general categories of criteria have been identified and introduced to control them. The first one is  the Commercial Code, which governs all "commercial contracts" and forms part of a broader law on unfair competition law; it has historically been rooted in countering abuses’ by large retailers of their suppliers of goods. Second, in civil law, which seems to be influenced by the criteria for controlling the terms of consumer contracts in European law and governs the terms of contrats d’adhésion. That is, cases in which the "will" of one of the parties to the contract is not taken into account. In Iranian law, there is no objective criterion for recognizing the unfairness of conditions, and as a result, it has become difficult to control them. The law on e-commerce and the law on the implementation of the general policies of principle 44 of the Constitution are not helpful in this regard either, and the need to pay attention to this important issue is fully felt.

Doping is the most unprofessional and unethical behavior in professional sport. In addition to the ethical and technical aspects, this phenomenon also has important legal aspects. In recent years, following the increase in cases of doping, the tendency to criminalize it has clearly formed among some criminal policymakers, and some countries have explicitly criminalized doping and punishing it, but despite some other countries have not taken action in this regard. A clear example of the first countries is England, Germany and France, and an obvious example of the second category countries is Iran. The claim of this article is that by using the experience of criminal law systems in England, Germany and France, it is possible to take steps towards the criminalization of doping in Iran's criminal law and in this way, between the approach of Iran's criminal law system and the view of the system. The mentioned legal issues created more alignment. The main hypothesis of the current research is that the criminalization of doping in Iran's criminal law has a significant effect in reducing it. In order to further investigate these categories, in this research, while studying the concept of doping and the basics of its criminalization in the criminal law of England, Germany and France, the challenges facing the process of its criminalization in the criminal law of Iran have been examined. The current type of research is fundamental, its approach is descriptive-analytical, its method is library study, and the tool for collecting information is survey.