نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 21 (پاییز و زمستان 1399)

Abstract calculation method of damages as one of the damages assessment methods which is based on payment of money has been identified alongside the concrete methods in Convention of Contracts for the International Sale of Goods. The concrete method as specified in Article 75 of the Convention is where the injured party requests the difference between the contract price and the price in the substitute transaction from the breaching party. According to the abstract method as predicted in Article 76 of the Convention, after a breach of contract by the obligor, the difference between the contract price and the market price of the goods is demanded from the breaching party. In order to implement the principle of full compensation, the question arises as to which of the two methods takes precedence over the other in how to calculate the damage? If the application of the abstract method is opposed to the duty to mitigation, is the court obliged to observe the duty to mitigation of damage in determining the amount of damages? This research intends to study the abstract method in the convention and law of Iran with a descriptive and analytical method. In short, the implementation of the abstract method is the result of applying the principle of full compensation. Abstract method is usually used when the injured party is unable to enter into a substitute transaction based on the concrete method. The implementation of the abstract method is in accordance with the duty to mitigation of damage. Although this method is not specified in Iranian law, there is no impediment for the courts to apply this method of compensation because the abstract method has gained legal acceptance in legal doctrines and generally is consistent with common sense principles.

The relationship between law and economics is an old-fashioned one. During the second half of the twentieth century and with the emergence of a new idea in the philosophy of law under the theory of economic analysis of law, this relationship took another form. Economic analysis of law means the analysis of legal concepts and institutions based on the cost-benefit formula, i.e. applying theories of economics, especially efficiency, as the basis of legal rules in order to evaluate these rules and, if necessary, correct them.  This also means the evaluation of concepts, institutions, and legal institutions based on economic ideas, and especially microeconomics. Economic analysis examines the rights of legal issues with economic instruments, explaining that first legal concepts and institutions are translated into economic language and then concluded within the framework of economic logic. The present article intends to examine the two post-criminal trial institutions -  namely, the mitigation of a part of the convict's sentence (penalty) for refunding the appeal and revoking his right and exemption from paying part of the fine for paying it at the legal opportunity -  from an economic point of view. The purpose of measuring the effectiveness of these institutions relates to the functioning of the criminal justice system and to encouraging individuals and convicts to use this system. The present research uses a descriptive-analytical method based on documenting discourse and economic analysis of law.

The Civil Code considers the transaction of another person’s property to be unauthorized and ineffective except as guardianship or administration or representation, even if the owner of the property is satisfied voluntarily. In this regard, the authors of the Civil Code have followed the view of the majority of Imamiyeh jurists who believe that the inner satisfaction of the owner during the contract is not enough to influence it. Sheikh Ansari is one of the few jurists who believes that the inner satisfaction of the owner during the contract is enough to influence it, and such a contract is out of the realm of unauthorized transactions. This means that from their point of view, it’s enough to have the inner satisfaction of the owner during the contract to influence it, and it is not necessary to announce the consent by external indication (permission). Sheikh Ansari's theory was severely criticized by the jurists after him. In this article, the author, while explaining them, has responded to them in order to confirm the mentioned theory. In a summary of the presented contents, it’s concluded that contrary to the opinion of the majority of jurists who believe enforcement or authorization has a written nature which cannot be realized except through the expression of inner consent, enforcement has a declarative aspect, and is the only conventional means of discovering one's inner consent. Therefore, in a transaction that a person makes in relation to another's property, if in any way the existence of the owner's consent during the contract is found out, it must be said that it is authentic contract and its effects must be recognized.

The criminal liability of a trading company has its ups and downs from the time it is recognized as a legal entity until its death and final dissolution, which must be considered; The findings of this study show that criminal liability for participation is about to be established and will not be established in the Companies Registration Office before its registration. Also, the criminal liability of companies during their economic life will vary depending on whether they are involved in the process of merger, dissolution and transformation. Multilateral mergers and general disintegrations, depending on the case, are among the reasons for the termination of criminal liability. However, the transformation of one company into another, despite the transformation in the body, does not affect criminal liability. The revival of the company is also one of the causes of the decline of criminal responsibility. Criminal liability of legal persons is the intersection of the foundations of civil law, administrative law, criminal law and corporate law. In fact, the concept of criminal liability of a legal person is at the crossroads of legal sciences, and neglecting any of them can have harmful effects and mislead the judiciary through justice.

The National Assembly was the first legislative and at the same time the founding power in 1285, when the Constitutional Revolution took place, which was established in the history of this land. With the occurrence and crystallization of the Islamic Revolution in 1979, the legislature was retained by its constitutional and supervisory powers by constitutional experts, and after some time was renamed the Islamic Consultative Assembly by the National Assembly and then the Constitutional Review Council in 1989. Based on these principles, it is very important for the authors to know the views of the experts of the 1979 Constitution on the legislature, its legislative and supervisory functions, as well as members of parliament. The main question of the authors is what are the perceptions and perceptions of the experts of the 1979 constitution of the legislature of the country, which was an institution inferior to its legislative institution? Attempts have been made to rely on the descriptive-analytical method after explaining the theoretical foundations of the legislature to examine and evaluate the various views of constitutional experts on ten issues and perceptions in the plant. The result of the present study is that the constitutional legislators, despite accepting the legislature and approving its structural and functional principles along with the restriction of parliamentary legislation by the Guardian Council of the Constitution, did not have the same understanding of the concept and functions of the legislature. This was evident in the final review of the constitution.

Shiā jurisprudence is secured upon the text of Quran, prophetic tradition and the ideas of the jurists. In fact, Shiâ theology insists on the principle of divine justice. According to this principle, God would not do what is considered to be ugly and oppressive by reason. This basis is the very foundation of the Shiā, but it is lesser recognized in jurisprudential judgements. Justice, Shi'a and Mu'tazilites regard God as righteous. Justice and oppression are defined on the basis of rational wisdom; so God does not do anything that wisdom considers ugly and will never command contrary to  wisdom. This principle of belief in jurisprudence has a wide impact: Any sentence or jurisprudential theory whose result goes against Islamic jurisprudence does not have credibility. This rule is influential in the principles of jurisprudence, jurisprudential rules and jurisprudence and in many jurisprudential issues such as war, marriage and divorce laws, copyright laws, gavel and financial inflation. The implementation of this rule supports just the jurisprudence that denies every tyrannical judgment in any situation.

The arbitration agreement is regarded as a method for the settlement of dispute in domestic and international context, according to which the parties leave the dispute to be resolved by private judge. For various reasons, this agreement, like other contracts, might be incomplete or ambiguous. Each authority dealing with the arbitration agreement, including the parties, counsels, arbitrators and courts, may represent different interpretations. The scope of arbitration agreement is one of the most common ambiguities in practice. This interpretation is even essential for qualification and identifying the real nature of the agreement. The main questions that motivate this research are which criteria could be used to construe the arbitration agreement and what is the competent authority as well as governing law for such an interpretation. Is it feasible to employ general rules governing the interpretation of contracts to the arbitration agreements? Unlike Iranian case law that addresses some of the criteria in this respect, our commentators are silent on the issue. Since these ambiguities arise in both domestic and international arbitrations, the present comparative study attempts to answer the questions under rules and doctrines of both jurisdictions.

The international case law and doctrine clearly show that the Agent of State before the ICJ in specific case, beyond the defending of positions and views of the respective State, has authority to accept an obligation on behalf of such State during the ICJ’s proceedings.  Therefore, the Agent must be placed in the ranks of the competent persons and authorities to declare the commitment on the behalf of the States. The Agent like any competent authority to declare an obligation may commit Ultra Virus acts or accepting any obligation contrary to internal law of appointing State. There is no case law or even a specific doctrine on the legal effects of such an obligation but on the one hand, given the important role that the Agent plays in the legal management of a State before the Court and on the other hand, given the authority to make a commitment to the relevant State, it is necessary to determine the legal implications of the statements beyond the authority of the Agent. This article reviews the jurisprudence and the doctrine which confirm the competence of Agent to accept a new commitment, and seeks to answer the question of how and under what mechanism States can invoke for invalidating the statements of their Agents before the Court. This article concludes that in some cases, declaring the invalidity of agent’s statements is urgent, and in other cases a specific time can be set.

Nowadays, a lot of international organizations and regional institutions have considerable contributions in the human rights mechanisms of the United Nations for the development of human rights. In recent years, the Islamic Cooperation Organization, as a regional entity, has gone through changes in concern with human rights, which can be described in terms of attempts for broadening human rights in the Islamic countries. In addition to focusing on the issues important for Islamic Cooperation Organization, the current paper analyzes its approach for human rights in three separate stages including ignoring human rights, encountering international human rights, and paying attention to human rights. Furthermore, the most recent human rights developments in the organization have been investigated. After the early years of ignoring the human rights, it seems that the Islamic Cooperation Organization has paid attention to human rights through Cairo Declaration and Covenant on the Rights of Child in Islam which did not comply thoroughly with the international human rights; finally it has resulted in promising proofs of caring for international human rights through founding Permanent Independent Commission of Human Rights, utilizing some creativities for supporting human rights, the ten-year program of organization, and revising the statute of the organization.

Today, one of the problems in resolving disputes regarding consumers and suppliers is complaints and requests made by persons other than the main consumer, and the objection of the other party to the complaint (supplier) is that plaintiff has no position in the lawsuit and therefore has no responsibility against him. In Turkish Protection Law, customer protection is mainly based on consumer protection Law, and the same should be done in Iranian Law. The purpose of the consumer protection Act is to protect of consumers who are primarily dealing with the seller or supplier. The purpose of this paper, is to examine the possibility of the subsequent consumer, i.e. a consumer who procures a good or service not from the original supplier but from a buyer who has already purchased from the original seller during the consumption process. Analytical and descriptive studies in Iranian and Turkish law have been conducted. A review of Turkish jurisprudence shows that consumer protection Act is the main source of consumer protection in this country, and that Turkish law provides better solutions for the protection of the subsequent consumer. In the Iranian legal system, civil law does not provide adequate protection for the subsequent consumer, and this issue should be provided in the consumer protection Law. Until new protection laws are passed, it is necessary to examine the capacity of existing laws to protect the subsequent consumer.