نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 3 (تابستان 1398)

Proofing occurrence of damage is necessary to obligee or damaged person for compensation. The claimable damage has certain qualifications too. One of these qualifications is certainty of entry of the damage. For this reason, possibility of Claiming the damade arising from the loss of propective benefit faces with donbtful. Although determination the amount of damage in loss of chance is one of another disagreement subjects. In this paper, these two issues are studied in Afghanistan& Iran law. According to the results of this paper, the damage arising from the loss of prospective benefit is claimable because of causation relationship between act of faulty man and the result damage. Also determination of the amount of losses in loss of chance is possibility by two methods. These two methods are the cost method and the indication method. Information of this paper is gathered by referring to library sources and studied by analytical-descriptive method.

In Iranian adjective law, expertise is provided to study the technical aspect of the subject and in substantive law, determining the responsible cause among various causes is considered as a point of law; also, the criterion of citation and the effect of the behavior of each of the causes has been accepted in the Islamic Penal Code 6031. However, what prevails in the civil and criminal precedent in liability cases is the referral of determining the cause of responsibility and determining the extent of it to experts that followed by the issuance of the expert opinion, the courts and forums will issue a verdict based on it. Considering the method of the Iranian legislator in determining the responsibility between various causes and the nature of expertise and the position of the legislator in this regard, this procedure can be criticized and it is in conflict with being point of law of responsible cause. Common law precedent has also considered it as a point of law. Failure to pay attention to this important issue will lead to violations of the substantive law of liability, such as delegating the judiciary to an expert.

In the legal systems of the world, interpretation of law is one of the accepted methods. Thus, in the proceedings and the exercise of the right, the judge needs to interpret the provisions to which she/he intends to refer and in this regard, different schools of interpretation have emerged which jurists and judges provide specific interpretations of statute by referring to its principles; But sometimes the judge is confronted, not with the ambiguity of the law but with its silence; Because the legislature does not have the power to predict all events ahead, due to its inherently human nature, Therefore, it cannot include all things in the law. Thus, sometimes the new claim is asserted which a verdict has not been determined by a judge in legal texts, On the other hand, the judge is required to issue an appropriate verdict and cannot refuse the proceedings under the pretext of the absence of law rule; This is where we come across a phenomenon called the silence of the law. It is provided different ways to solve this problem in different legal systems. In the Code of Civil Procedure 3919 which was inspired by French law, in imitation of French law, the legislature required the judge to refer to the spirit of the law and the inalienable customs; Of course, this text itself had created several ambiguities. That practice changed after the establishment of the Islamic Republic of Iran and the passing of the constitution and a new method was established to analyze the legal silence, the most important of which was manifested in Article 322 of the Constitution And the judge was required to refer to jurisprudence and valid juristic opinions instead of referring to the spirit of the law and Subsequently, in the Code of Civil Procedure 6000 article 1, in addition to jurisprudence and valid juristic opinions, a category called "legal principles" was also specified and Thus, based on this basis established in the Islamic Republic of Iran, the judge is required to search the judgment in jurisprudence, valid juristic opinions and legal principles that are not contrary to jurisprudence, when faced with a case whose verdict is not in the law and it can't solve the problem through legal interpretation, Here, the role of the rules of jurisprudence, which has an important place in Islamic law, is revealed because it can be considered as one of the legal principles that are not also contrary to with Islamic jurisprudence; Thus, the importance of defining and interpreting of this legal principle becomes more and more clear.

For the first time in 1968, The Compulsory Civil Liability Insurance Law for Vehicle holders was approved in Iran. This act was amended in 2008, following developments in other countries regarding greater protection for victims of traffic accidents. The last change was made in this act in 2016, after eight years of implementation of the act 2008 and the revelation of the weaknesses and strengths it. And compulsory insurance act of damage caused to third parties due to accidents caused by vehicles was approved by the Islamic Parliament of Iran in seven sections and sixty-six articles. There are significant changes in the recent act. From abbreviating the name of the act to increasing the number of articles from 30 to 66 articles and significant changes in increasing financial resources, the obligations of the insurer and the insurer and the structural obligations of the fund, all reflect the innovation and developments of the new act. In fact, the legislature has tried to achieve its lofty goal by increasing the range of compensable damages and accelerating the process of damaging the victims of such accidents. But it has not yet reached the ideal point in terms of material, physical and spiritual damage. And in the course of the implementation of this act, it should be possible to identify its main drawbacks and in order to achieve justice in compensating for real damages caused by traffic accidents, reduce the amount of damage through compulsory insurance of persons, objects and vehicles or at least, Provided better redress for irreversible effects or damaging victim.

In modern law, some jurist believe in the unity of law and legal rule, while others believe that law is one of the means of expressing the rule. According to the second approach, which is also accepted by Professor Jafari Langroudi, for the interpretation of law, referred to the sources of law in custom, legal instincts, a human conscience, doctrine, etc. In modern law, some consider innate rationality to be the main source of law and others consider spontaneous rationality. Professor Jafari Langroudi considered law as the intersection of custom and doctrine and believed is necessary to refer to legal instincts, custom, and Islamic sources in the framework of rational reasoning with regard to the understanding of the companions, etc. to interpret it; in this way, accurate, efficient, and valid notions and affirmations of the law can be deduced. It is a kind of theoretical research on interpretive logic in modern law and the works of Professor Jafari Langroudi, which consists of three parts: concepts, assents, reasoning. In explaining interpretive logic, in addition to originality and method, Prof. Jafari's works have indigenous and sound principles that have no precedent in the works of other jurists that will be examined These principles and methods compared with similar works in this research.

From the past, there were contracts that in the initial review, was not more than one contract, but when we look at it in terms of analysis, we see a contract with various obligations such as: hotel contract. When a contract of this kind is brought before a judge; He is faced with several questions such as: if part of the contract is void or excused for any reason, what effect does this invalidity or excuse have on the main contract? Does each of the components of this contract depend on the legal nature of the same section, such as the contract of sale and lease and its specific provisions? What is the guarantee of the promisee if the obligor refuses to fulfill some of the obligations? Inevitably, the nature of the complex contract must be clarified to answer these questions. Given that complex contract has constituted a significant volume of legal cases in the courts, it is necessary to provide a juristic and legal explanation of the nature and provisions of complex contract. The question is, what is the nature and effects of a complex contract? A complex contract exists as a special and independent nature in Iranian law. There are two types of composition in a contract: a) Voluntary composition: According to a famous saying in Iranian jurisprudence, each contract has its own ruling, ie it is legally dissolved into several contracts. B) Involuntary combination: In this case, due to respect for the intention of the parties and the impossibility of customary dissolution of the complex contract, the obligations arising from the contract cannot be dissolved, therefore, we apply the ruling of the same part to the whole contract if the main purpose of the parties is a part of the contract. For example, the purpose of the hotel contract is to rent a room; the rest of the obligations are customary attachments; In other words, a contract sometimes contains several obligations, but only one of those obligations has a main aspect and the rest have a secondary aspect, in which case determining the nature and effects of the contract, it depends on the main obligation. But there are some complex contracts in which all the obligations arising from them are in the same direction, so that the main purpose of the parties is two or more obligations, such as the obligations arising from the subscription agreement and the purchase of a plane ticket. In this group of composite contracts, we do not apply the specific provisions of any specific contracts, but only apply the common will of the parties and the general rules of contracts in cases of silence of the parties.

istishab is one of the useful documents in deriving jurisprudential rulings and legal arguments. istishab is briefly defined as legal presumption of continuity of the status quo in doubtful case. The conditions, elements, and types of istishab have been studied with the great efforts and scrutiny of Islamic scholars. The conditions, elements, and types of istishab have been studied with the close look of Islamic scholars. These researches have caused the use of istishab to expand tremendously in the field of jurisprudence, rules of it and law. But the "essence and nature" of istishab remains an important and fundamental question. In this research, while examining the literary and terminological meaning of istishab and trying to apply this meaning, to the evolution of practical principles - in general - and istishab. Although the word istishab is not mentioned in the tradition, but its content is included. Perhaps the first conceptual argument for acceptance is for Hisham ibn al-Hakam, who lived before Imam al-Shafi'i. In historical examining of the rules of jurisprudence, we come across terms such as "istishab of the present", "istishab of the state of reason" in the jurisprudence of the predecessors, which is clearly different from the current "istishab" in the rules of jurisprudence. First, the brief difference between the presumption and the practical principle is explained and the the opinions of Islamic jurisprudents are mentioned in order to determine the statistic and the practical principle of istishab. Some later jurists have proposed a theory called the "discounted and establishing principle" such as Mirza Naeini to be a new solution to the dual answer of "being a persumption" and being a "practical principle" of istishab. Regardless of this solution, accurate analysis of the problem solution requires the study of indicators and criteria for solving the problem, For example, the validity of istishab or the analysis of its elements has a clear effect on solving the problem of "being a presumption" and being a "practical principle" of istishab. In the end, while exploring the principles of istishab in the opinions of prof.Jafari Langroudi, as a summary, it is expressed three intellectual, jurisprudential and integrated source of istishab.

adaption of a contract when its performance leads to an excessive hardship, including an economic hardship, is widely accepted by the world’s major legal systems as well as international practices; yet, the adaption of contracts by arbitrators remains a controversial issue. Arbitrators have the authority to resolve the outstanding disputes between the parties based on the terms of the contract and the rule of law. The competence of arbitrators for revision of the parties’ agreement and adaption of its terms, in particular when the contract is silent regarding this scenario, could be inferred from the existing circumstances including terms of the contract and mandatory rules of the governing law. This paper claims that the adaption of a contract in a changed circumstance is nothing more than an interpretation of the parties’ intent to maintain the contract’s economic equilibrium. The adaption results in the restatement of the contractual term in the realm of keeping up economic balance of the contact. The theory of oneness of arbitration, as well as the principles of pacta sant servanda, competence in competence, and the similarity between jurisdiction of courts and arbitral tribunals have been employed to prove the legality of adaption of contracts by arbitrators, even when the contract and the governing law are silent on this isse

he principle of judicial jurisdiction of the place of Defendant is a universal principle. In the face of criticism, this rule has been legally flexible and reduced its totality in order to facilitate trial and providence of adjudication costs and to properly manage the flow of trial over time. “Connection between actions” is one of the exceptions to the generality of this principle. In fact, the development of local jurisdiction is one of the effects of connection between actions. In this study, the scope of development of local jurisdiction resulting from the connection between actions in the civil procedure of Iran and France has been investigated.

The civil liability system in Iran Civil Code is affected by Imami Jurisprudence. Although the French Civil Code has affected the Iran Civil Code, the Iran law has been rarely affected by French law in the codification of the articles relevant to compulsory guarantee. Except for a few Articles under the title of generalities (Article 103-102), this section of the Civil Code is codified based on Imami Jurisprudence. Hence, the structure of the civil liability system in Iran Civil Code is consistent with Imami Jurisprudence. In Islamic Jurisprudence, the civil liability system is a pluralist system; meaning that references of civil liability are various; although the causes of the guarantee are studied. In Iran civil code, following the Imami jurisprudence, the references of the compulsory guarantee are presented in 5 items. The references can be classified under two titles: guarantee for loss (usurpation and pseudo-usurpation) deliberate destruction (stewardship and cause) and vindication is a kind of loss of interest. Other titles sporadically mentioned in Islamic jurisprudence, or can be inferred from some articles of civil code (enforceable guarantee for the corrupted contract, pride, etc.) can't be independent references of guarantee. Moreover, in Islamic jurisprudence, instead of reliance on harm or making loss, the guarantee and civil liability are based on a waste of property. Due to the difference between the two terms, this can restrict the domination of civil liability and a general rule for loss compensation can't be inferred. Accordingly, to make civil liability, the offender shall be wasted or shall have a hand in the property of a third party. Doubt and disagreement in the capability of loss compensation or the difference of personal interest are caused by the attitude. However, the idea that is noted by the author of the Civil Code can be criticized. The present study has attempted to analyze Imami Jurisprudence and amend the attitude. The gap of the civil code in this field could be cleared through this, and it could be amended.

Article 3 of the Civil Procedure Law approval of 9 April 2000 has charged the judges of courts to deal with the lawsuits due to the laws and issue an order or solve the disputes.
The essential introduction of dealing with the lawsuits to issue an order or solve the disputes can infer the meaning that qualified order of solving disputes is the consequence of natural dealing.
Moreover, due to the definitions of the judges and due to verdicts of dispute solution as a customary truth, without the issuance of the natural vote, no one can counter dispute solution or issuance of qualified order.
The regulation to differentiate the qualified order from dispute solution is the documental reason for the verdict. If the document of the vote is the reason for proofing the claim, the order is the qualified order. Besides, out of the limit of the mentioned evidence and documenting the regulations such as the lottery rule, the issued order will be the dispute solution order.
The reason for the priority of the term "issuance of qualified order" on the "dispute solution" in the content of the article is that with the existence of the evidence to prove the claims and the possibility of issuing qualified order, there would be no chance for the dispute solution. Also, the reason for the priority of the cause of proofing claim on the regulations of dispute solution is the discovery of that from the right, such a discovery, from which the dispute solution rule is deprived.
Regarding that, the law has considered no separation and difference between proof evidence and solution regulations, the nature of the order should be recognized with hesitation in types of the orders due to the causes and documentary regulations.

article 1 of Civil Procedure Law of Public and Revolutionary The legislator has introduced the Civil Code as a collection of “principles and regulations” in the top of theCourts on Civil Affairs approved in 2000. Paragraph 3 of article 371 of the said law has also mentioned that violation of principles of procedure and customary laws could be the cause of violation of the appeal verdict requested in the Supreme Court. Articles 18 and 19 New Dispute Resolution Council Act approved in 2015, and the relevant notes have discriminated against the most critical examples of the procedure principles, regulations, and formalities. The customary laws, principles, and procedure formalities are three crucial keywords and the requirements of systematic dealing of the lawsuits of entities (whether civil or criminal lawsuits). Hence, everyone shall observe them in all phases of the procedure. The underlying axis of the present study is discussing the determination of the concept and sanctions of enforcement of the procedure principles. After that, analysis of the role of procedure principles in the process of codification of statutes is presented in the second step. Besides, because of the impact of observance of the concepts in the credit of votes of the courts, the sanction for violation of these concepts in the process of civil procedure is discussd.

to the issue of denial of formalities in proof evidence and The article “open knowledge in the circulation of proof evidence” codified by Jafari Langarudi is relevantdetermination of the nature of the evidence, reminded as knowledge of reliability by him. He believes that knowledge in evidence circulation is light, around which the lost people seek that in the dark desert of unknowns and revolve around it like the Kaaba. Evidence, testimony, and documents tend to say the reality that the critical issue for the judge to make a decision is the reliability of evidence. This study is less published, although it has been significantly effective in evolutions of the regulations and their changes

agreement has considerable effects on the issue of arbitration. In Acceptance or lack of acceptance of the principle of independence of arbitration condition from the original Iran Law and the judicial procedure documented from article 461 of the Law on the Establishment of Public and Revolutionary Courts in Civil Affairs, the dominant belief is in lack of acceptance of independence of the arbitration condition from the original agreement. Whereby taking the procedure, the unreliability of the original contract can be expanded to the arbitration contract. Accordingly, in case of disputes on the credit of the original contract, the arbitrator is not qualified to deal with the dispute. Despite the procedure, the proponents of independence of the arbitration condition believe that although the provisions inserted in the original contract follow that, the regulation is not true for the arbitration condition. Some commercial and trade requirements make recognition of the principle of independence of arbitration conditions from the original agreement. Article 16 of the International Commercial Arbitration Law has accepted the said principe

In Islam, tolerance (or negligence) has foundations, based on which, and due to referring to the “Men Balegh” news (Fegh), jurists have proved the rule of tolerance and have presented that under the title of sharia of “tolerance”. The rule is also analyzed in the science of law under the title of legal tolerance. It is also reminded of the flexibility and observance of public interest in legislation and forgiving in applying some regulations. In the present study, the concept of tolerance is analyzed first, and its bases in Islam and its position in domestic law are analyzed. It was done, particularly by referring to the thinking system provided by Professor Jafari Langarudi

The legal encyclopedia written by Jafari Langarudi is a detailed and applied reference in the context of procedural law. The most important subjects have been discussed based on the alphabet in this comprehensive work. As one of the significant procedural issues, the preface of objections has received considerable attention. The introduction includes various interesting and notable points. Some of the most substantial effects of objection (or plea) such as the trial process of the plea, the judgment validity, and verdicts issued by the court, in this case, have been explained in this discussion relying on the old rules of civil procedure. Not only the abovementioned theories are absent in our current procedural law, but also there are some theories against it. It seems that the old rules are more matched with the nature of the plea of procedural law so that such rules respect the rights of case parties more effectively.

The extant paper is organized into an introduction and two sections. As the title shows, the purpose of this study is to make a brief introduction to the academic character of Professor. Jafari Langarudi. To this end, the personality of the professor is introduced briefly then his academic works are described to initiate the discussion. Followed by this short introduction, some of the fundamental theories and unique opinions of the professor are introduced as science generation examples based on his works and thoughts. The next section makes up the underlying core of this paper. However, the second part has been added to complete the discussion and introduce Professor Jafari Langarudi worthily. The second section argues a legal problem that has been a complicated case in judicial procedure and a legal issue. The author made an effort to solve the issue employing the ideas of Professor. A short report of the case is presented in the second section.

According to Article 135 of the Civil Procedural Code, if any of the parties deem it necessary to involve a third party then he/she can express the reasons until the end of the first hearing session. The party can apply for third-party arrest within three days of the session submitting a petition to the court either at the initial or appeal stage. The legislator has used the “deem to necessary” for third party involvement case while the examples have not been specified. Moreover, third party involvement is only under the authority of parties, not the judge. However, judges in other countries such as France have some authority in relevant cases. The judicial procedure is distracted in case of third party involvement. This paper aims to name cases in which parties can involve a third party in the proceeding. The French Law is studied herein as Tari claims such as third-party involvement claims are adopted from French Law.

All religions and human wisdom emphasize nature protection and environmental health. As fundamental human rights, human beings should benefit from a healthy and safe environment. Hence, there is a law branch called “Environmental Law.” Criminal law is responsible for enacting rules and regulations about environmental degradation prevention and punishment of polluters. Civil liability also considers sanctions on environmental damages. In addition to the wise practice, many jurisprudential texts such as verses of the Quran and narratives criticize environmental degradation, loss, and pollution. Accordingly, Imamiyeh (or Shia) jurists have granted compensations for environmental destructors based on some jurisprudential rules. Distinguishing the injuries caused by environmental damages- nature or human- this paper examined the essence of this liability in terms of being under dominant of the public or private law. Choosing the strict liability as to the foundation of civil liability of environmental damages, principles of this liability, compensation ways, and competent court for filing the lawsuit of civil liability for environmental damages were determined.