فصلنامه مطالعات حقوق خصوصی
سال پنجاه و یکم شماره 2 (تابستان 1400)

The judicial reasoning –based precedent is a profound issue rooted in the philosophical thoughts of the judge. The philosophical orientations or lingual characteristics of the judge always determine the method used by him relate the general concepts of the law specific case . Each philosophical theory has a different view on it. Based on Hegel 's dialectic approach and the language function of Wittgenstein and Gadamer's Hermeneutics with respect to law, the judicial reasoning process deserves to have its internal moral rules particularly under the non- realistic schools of the morality. The present article, using descriptive – analytical methodology, aims at studying the morality of the process under the said theories. According to Hegel, the law is becoming due to the dialectic nature of the judge's determinism. This fact is an essential element for the social newness. This social newness is a context for the formation of the moral norms. As the language function argues, in the judicial argument the language is not the mirror of the concepts only; but, it creates them. This approach may change the criminal titles or civil law terminology , possibly leading to the change in the social norms Under the philosophical hermeneutics , there is a circle between the philosophical orientation of the judge and the legal text. In each reading, new concepts emerge which are true and applicable .This theory plays a significant role in the judicial reasoning process and the enforcement based on it for the formation of the mora values .

Hedonic Damages are so important between spiritual damages. In this kind of loss we should pay attention to the quality of life and the amount of claiment,s pleasure before hurt. The assessment of hedonic damages depends on the amount of happiness and his or her interest in life,not the amount of money or a high job. The best method of assessing is using of guide tables with concerning personal charasteristics. It seems that using a maximum amount in this kind of loss is efficient to avoid astronomical digits.

Applicant, beneficiary, issuing bank and advising bank (in most cases) are the four parties that have the mutual rights and obligations in the letter of credit. In many cases, the letter of credit is also confirmed by another bank (the confirming bank). International letters of credit always have a foreign element and in spite of the existence of "Uniform Customs and Practice for Documentary Credits (UCP)", in many cases it is necessary to determine applicable law to these relationships. Accordingly, in this paper applicable law to relationships in international letters of credit will be studied in four categories by a descriptive-analytical method 1-Relationship between issuing bank and applicant, 2- Issuing bank and advising bank relationship with beneficiary, 3- Relationship between issuing bank and advising bank, 4- Relationship between confirming bank and other parties of the letter of credit. The results show that in each of the aforementioned relationships, the applicable law is the law of issuing bank or advising bank's country or the country where the center of gravity of the contract is situated.

The two categories of insolvency and bankruptcy are legal privileges, each of which is presented to the trader or non-trader so that if they are unable to pay their debts, they will be released from the pressure imposed by the creditors. merchants and legal entities cannot legally file for insolvency and have to file for bankruptcy.These two institutions have differences and similarities. One of the effects of the insolvency petition is that if it is submitted to the court within 30 days of the notification of the writ of execution, the convicted person will not be imprisoned until it will be rejected. considering the silence of the legislator, the question arises whether the filing of a bankruptcy petition, like the insolvency, will release the merchant claiming bankruptcy or not? Assuming a positive answer to this question, does filing for bankruptcy have such an effect only within 30 days of notification? This article examines the filing of a bankruptcy petition is a declaration of cease by the merchant and according to commercial law, the ceased merchant is not entitled to pay the debt according to the principle of equal rights of creditors and prohibition of preference of one of the creditors over the other. Otherwise it would be a bankruptcy by fault. As a result, it is certain that the primary effect of filing a bankruptcy petition before execution or within 30 days should be prohibition of applying the guarantee of imprisonment contained in the Law on Execution of Financial Sentences.

There is no doubt that in the field of personal status, including family law, legislator's will is the basis of the validity of legal norms in the Iranian legislative system. However, territory of family has never been secured against government intervention due to social and economic developments. The main question in this research is the analysis of this intervention and its credit effects. Thisintervention can be expressive and thus the law can be regarded as the only instrument for stating this regulation which hasderived from the will of legislator, but, sometimes the law is an instrument for creating a legal ruleand in this case that the relationship between the will of the legislator and the will of the government is of considerable importance and causes some challenges and questions. For example, what effect does the rule of necessity of registering permanent marriage have on marriage? Is the effect of this rule merely positive or should it be considered affirmative? Thisstudy attempts to analyze the four roles of state in the legislative system, namely select of a subject and,recognizingsecondary titles, choice of legal rules,supervision and ensuringand finally establishmentof rules apply to behavior between spouses, how their rules of family are conformed with the social facts and offering some solutions to overcome some of existing legal challenges in this field.

With the advent of data encryption technology, today new electronic money instruments have emerged that allow the exchange of large sums of money in the form of electronic messaging data. One of these tools is the digital cryptocurrencies. cryptocurrencies are divided into two types. The first species, such as Ethereum, is produced by the sovereignty of the countries, and the second is mined by miners from decentralized territories. Due to the difference in the nature of these currencies with the official currency of the countries in exchanging monetary markets, the possibility of considering the currency's title to these instruments is facing challenges. In the United States, there is the current issue of virtual currency exchange auditing, which has solved the problem of foreseeing the allocation of licenses to applicants. But in Iran, because it does not provide a definite definition of currency, these instruments can not be considered as part of the circle of inclusion of the currency, nor can it be used by using principles such as the principle of the sovereignty of will and the perception of such instruments as commodities in exchanges, the possibility of using Provided their maximum capacity in monetary markets. , legal validation, legal requirements and the prediction of competent authorities are among the requirements of the Iranian legal system for the use of these currencies.

Limitation of shareholders liability to the extent of their shares in a limited liability company, could expose creditors to the risk of default of their claims. Therefore, Legal Capital as a traditional solution has been devised long ago to protect creditors rights against limitation of company shareholders liability. According to Legal Capital rules, the procedures as to provision of minimum capital by shareholders and its maintenance during the business activity of the incorporation can sufficiently secure creditors rights. Nevertheless, this issue has been questioned nowadays and in some legal systems a modern approach to Legal Capital has been established. By means of covenants and insolvency law, this recent approach attempts to introduce alternative solutions which are believed to have obviated the shortcomings of Legal Capital and enhance the protection of creditors rights. In conjunction with the study of traditional and modern approaches to Legal Capital, this essay puts forward a recommendation on amendment of current Iranian Law and recognize an intermediate approach to be the most proper solution for protection of creditors rights in Iranian Law.

The doctrine of the fresh start which is one of the modern concepts of bankruptcy law and is influenced by the school of the economic interpretation of the law, Seeks to relieve the Merchant from debts owed to provide an opportunity for him/her to rejoin society as a productive economic member. In fact, the theory of the fresh start for the productive and creative merchant, by discharging of a debtors debts that he/she has been unable to pay, protect his/her property and future income from creditors. Although the Iranian legislature has not taken a position on this theory, the UNCITRAL Legislative Guide on Insolvency Law addresses it separately. In this research, this theory is explained and studied with a comparative approach.

Considering the importance of capital in firms, also due to the far-reaching implications of firms and enterprises in the economy of any country, and the broad role of the capital market in corporate financing, accurate understanding of corporate financing, its triple steps and the risks involved in that process is really essential. Triple and connected steps in corporate financing are investment decisions, financial policy decisions and dividend policy decisions which are connected to each other, and are connected with capital and product market strategy. Two significant instruments of corporate financing are debt and equity, and two main strategies in corporate financing are aggressive and supportive strategy. Considering the interaction between financial and legal decisions, and the importance of the lawyer's role at firms, the present study addresses the legal aspects of corporate financing, and seeks to answer this question: if we need special patterns for corporate financing? This research has been developed in two parts, in a library-analytical manner, which first deals with concepts and foundations, and the second part describes the strategies and steps in corporate financing with the legal view .

Civil Act discussing the mortgage brings regulations on characteristics of subject of mortgage, mortgagor’s rights and mortgagee’s rights. But only exceptionally has regulations on the debt mortgaged for. Depending on determining whether mortgaged stock is mortgaged for present or for future debts of directors, this question would be answerable that if somebody re-seized the mortgaged stock and after it director damaged the company, which one would prevail, re-seizing person or mortgagee of that stock? Despite what at first glance under the influence of Civil Act seems, Commerce Act and its Amending By-Law in addition to taking mortgage for existing debt, approve taking mortgage for existing pledge and for non-existing debt which its cause has been formed. So, the company takes mortgaged stocks from directors not for existing debts i.e. for putting its asset under the directors’ custody but for future and possible damages which may occur from their managerial conduct (i.e. non-existing debt which its cause has been formed). So, until the damage has not been sustained and the mortgage is not established, the re-seizure would prevail the mortgage. As a result some allowed kind of re-mortgage forms.

In Iranian law, civil liability is often defined as the duty of the importer of damage compensation and its preventive function is on the sidelines, while foresighting and preventing more economic, ethical and human damages. Is more. Moreover, civil liability does not only involve the assignee of the loss-maker, but also the loss-maker must strive to prevent and intensify the loss. Therefore, the rules of preventive liability require that in some cases the liability for damages resulting from the abandonment of pre-emptive action be inflicted upon itself. Accordingly, the question to be addressed in this article is what are the rules and institutions and mechanisms and safeguards in Iran's law on preventing harm, preventing it from continuing, and preventing it from continuing. What are the shortcomings of this field? " attachment of relief ", " provisional injunction ", " attachment of frivolous claim ", " attachment of Foreigners Claim", " attachment of execution in judgment by default ", " attachment of execution or Stopping Enforcement requesting for re-trial, third person objection, last resorte " And "stoppage of official document" and triple claims of Possessor Action, Action for Disturbance of Possession, Action for Right of Exploitation, the existence of various obligations for municipalities and government agencies to prevent harm caused by human agents, the vice-president of insurance systems, and social security. Ziandideh to refer to the importer of damages and to use the guarantees of law enforcement and criminal liability in the inefficiency of civil liability rules,

Although the sanctity and void of gambling and robbery are considered to be Islamic Sharia laws, however, the legislator in Article 655, by virtue of jurisprudential sources, has excluded such cases as horse riding, shooting and fencing. How such an exception came into the legacy of jurisprudence and its relation to the demands of the modern age and whether it is possible to use emerging examples of Imamiyyah jurisprudence to include emerging examples in the bidding and to consider them as allegorical rather than modern. No, the present paper has led a comprehensive study of jurisprudential documentation in a descriptive-analytic research. The results of the study show that by converting the subject and changing the case, the said cases are not capable of providing the lawful purposes of prescribing such a judgment; therefore, it is necessary to replace new cases with the essence of judgment and in the light of time and place according to the requirements of time and place.