مجله تحقیقات حقوقی
پیاپی 94 (تابستان 1400)

The present study explores the impact of partial payment of the debt on the release of the pledged assets regarding the legal and economic issues, with an emphasis on the new decree stipulated in Article 19 (a) of the Law on the elimination of barriers to competitive production and promotion of the financial system of the country. The results of the research in our law and Imamiyah jurisprudence show that Article 783 of the Civil Code, following the jurisprudents of the Imamiyah, has accepted the "rule of security agreement insolubility", according to which no part of the bail is released through partial payment of debt. By contrast, Article 19 (a) of the law on the elimination of barriers to competitive production and promotion of the financial system of the country, provided that the manufacturing unit has gotten some debt instruments from the a bank or a financial and credit institution, whether public or private, is subject to the theory of "rule of security agreement solubility" making an exception to the rule of the civil code. In terms of economic analysis, it is also clear that Article 19 (a) of the law on the elimination of barriers to competitive production, in comparison with Article 873 of the Civil Code, can lead to an increase in wealth and realize the efficiency.

The promotion of the renewable energy calls for substantial direct investment as a sine quo non; in order to reduce the cost of investment, the government should also support the producers and investors. One of the most common and effective methods that the governments apply to support the clean energy is providing local content requirement subsidy. Despite the environmental necessities and the implementation of the industrial policies due to this type of subsidy, Agreement on Subsides and Countervailing Measures has prohibited this type of support without any quality assessment and analysis of its impacts on the environment whatsoever, drawing its fair share of criticisms from the environmentalists. In this regard, several researchers and scholars, have recommended the regulations proffered by the General Agreement Tariffs and Trade (GATT) and the approach adopted by the dispute settlement body as a viable solution. The present study, analyzing the regulations provided by GATT and dispute settlement bodies consequences, concludes that due to the unclarity, generality, flexibility and failing to meet the positive and negative requirements, the aforementioned sources are deficient in removing the legal prohibition. Ergo, the best solution is revising the regulations of the Agreement on Subsides and Countervailing Measures.

Economic analysis of law generally observes the law, as what it must be, from a prescriptive and normative viewpoint. That is to say, it defines the musts for the society and guides the legal rules in order to achieve them. One of the law branches, which distinctively has an appropriate ground for economic analysis, is the substance of contract. In Contract Law, the instrumental approach – based on normative analysis – considers the contract as an instrument for realization of economic efficiency. On the opposite point, the moral approach considers the contract solely as a moral obligation to fulfil a promise. Therefore, in respect of moral aspects implied by it, implementation of a contract is a duty for the contract parties. An essential question is that which of these approaches is in more conformity with the rules of the Contract Law? Picking either of these approaches may make different effects on attainment of contractual goals. By considering the Contract Law as an instrument of social policy, as opposed to pacta sunt servanda, as a moral principle, a more appropriate description of it can be presented. In addition, stating the functional grounds of instrumental approach will show its prevalence and preference over the moral approach.

In Iran, since the beginning of the constitution, various models such as guild elections, two degrees and the majority system have been implemented; But still, the discussion of choosing a favorable electoral system, appropriate to the geographical, ethnic and cultural conditions and characteristics in the Iranian political system has been one of the most challenging issues in recent years. Among these, two cities of Noorabad Mamasani and Rostam have been the most challenging districts for recent years. It is truly a controversial and disputing issue in rather than ending conflicts. Accordingly, current study has been based on this question: “what kind of electoral system can be impose to this constituency to replace disunion, diversity (disagreement) and deepening social gaps by understanding, empathy and civic participation? So, preferential-alternative voting system has been suggested as a proper model for this constituency and studied as a primary answer.In this system, candidates attempt to poll the absolute majority votes that is necessary for entering parliament so it is needed to seek citizens` vote and focus on benefits and values of several social groups as well as commitment to them instead of emphasizing social gaps. So, social cohesion can be achieved and unity basis can be consolidated by implementing this electoral system in a long term but also prevents the breakdown of social bonds.

The code of “implementation way of monetary convictions enacted in 1377” in a stringent policy imposed the assumption on debtor’s solvency except proving insolvency. In order to that policy, in all kinds of debts, this code sanctioned the detention against the debtor as he refused to pay off the debt. Pursuant to the aforementioned, the code of “family protection enacted in 1391” in its article 22 adjusted that regulation about dowry claim. According to this article only the demand for to amount of 110 golds or the amount of dowries that equals 110 golds was included by the general system of the code of 1377 and the amount of dowry that is upper than what was mentioned was excluded from that general system. Ratification of “I.W.O.M.C enacted in 1394” and the explicit revocation of “I.W.O.M.C enacted in 1377” institutes a new system. This new system consists of the segregation between the debts that are preceded by acquiring property and the preliminary debts. The new system has reversed the burden of proof about the recent kind, in a way that about this kind, it has imposed the assumption on the debtor’s insolvency. Also, about the preliminary debts, according to this code, the sanction of detention is providing the proof of debtor’s solvency. By the ratification of this new system, permanence of the particular provision that is embodied in article 22 of the code of 1377, became vague.

The emergence of the Corona pandemic )covid-19( in early 2020 has made the need for the development of humanitarian strategies in Crisis more obvious. The international labour system at this time is facing a more serious challenge of decent and future work. In the current situation, standards such as employment, health and safety and workers support, especially for a special group of migrants, women, children and other vulnerable groups, have become very important. crisis resilience, on the other hand requires recognizing and implementing opportunities to meet global standards and on the other hand, has made it necessary to close gaps and challenges in their implementation. This paper uses a descriptive-analytical approach to analyze the effects on the corona crisis on the global standards in the field of Labour and Employment and concludes that Corona pandemic is an emerging example of the crisis and future challenges of work that, because it has transformed employment in on unpredictable way, forces the word system to adopt a policy. approaches such as plotting future jobs, standardizing and reviewing global labour norms, including work arrangement (Telework), and supporting workers and workplaces will be a key resilience strategy in the current crisis.

The accused persons in criminal cases sometimes Retract from their confessions, and therefore legal systems, depending on their origins, have taken different approaches to the validity of such confessions, depending on their principles. Jurisprudential schools do not have the same view on the impact of confession retreat, and this difference in approach has left its effects in the legal systems of countries affected by Islamic law.In the present article, with a descriptive analytical method, while analyzing the jurisprudential view on this issue and its reflection in the legal systems of Muslim countries, the approach of the Islamic Penal Code adopted in 2013 towards this issue based on the principles of Imami jurisprudence has been studied, and It is clear that, on the one hand, opposition to the effectiveness of retraction of confessionin in theft punishable by prescribed punishment, and on the other hand, Determining a specific flogging and discretionary imprisonment for defendants who Retract their confessions in crimes punishable by Hodoud of stoning and Execution in Legislative criminal policy It is not justifiable.

The nature of the regulations of the supreme council of cultural revolution in the legal system and hierarchy of law sources, have preoccupied some researchers and the recognizing the status of these regulations seems necessary. Therefore, there have been expressed diverse views about the nature of the regulations by scholars to answer this question that whether the nature of these regulations is policymaking, lawmaking or rulemaking? with regard to this issue that the  policymaking is based on the principle of rule of law and predetermined competence of legislature from one side and as well as if we consider this council as a lawmaker institution, we contradict the exclusive competence of parliament in legislating on the other hand, and also with regard to this issue that the devolution of competence for rulemaking is in the legislature competence, therefore it seems unlikely to  consider the regulations of the council as one of the aforementioned titles and imagine legal effect for them. Therefore, in this paper I attend to clear the nature of this regulations and I'll  try to with regard to the council's regulations examine this issue that whether these regulations are adaptable to these notions (policy making, lawmaking and rulemaking) or not?

The consequence of the loss of the offer in contract law is that it offer falls. This is an involuntary and involuntary matter that the impossibility of joining the acceptance of the offer of its effects is the inevitable consequence of the loss of the offer (eg, referring to the offer) or The will of the respondent is the requirement (eg, rejection of offer or reciprocity). Death and bankruptcy. Consideration of the International Convention on the International Sale of Goods regarding any of the examples and its implementation with Iranian law has been discussed to determine that the Iranian law on the causes of the loss of the offer in How close to the Convention is, and in which cases should the procedure be in place? And is there a problem with the Iranian government's accession to the convention? The result of this research is that the reasons for the loss of the offer in the legal system of Iran are explicitly foreseen, and these are also considered in the Convention, and by reviewing the contents of the Convention, four cases can be found which, like Iran's law, causes deterioration It is required to deny the offer, the expiration of the period specified for acceptance, the rejection of the offer by the respondent and the counter offer. And the Iranian law's stance is near the convention. Therefore, the Iranian government is unconditionally annexed to the convention and in cases of dispute the Iranian government can use the right.

Difference in the basic principles of legal systems and their different needs and gaps has led to the emergence of models of registration system of real estate that, while they are very similar, have fundamental differences and is raising the question that how it is possible to classify registration systems of real estate into legal families, such as the division of contemporary legal systems into multiple legal families. Answering to these questions plays a fundamental role in understanding the registration system of each country and the possibility of using its legal solutions to improve the Iranian registration system. This research, with a descriptive-analytical approach and based on comparative studies, has concluded that in order to classify registration systems of real estate, large components are needed first, which are considered as the basic pillars of registration systems. In this regard, the “registration pattern”, “effect of registration on transactions” and “access to the information” have been introduced as classification indicators. In the second place, based on the mentioned indicators, we divided the real estate registration systems into three families: "Will-oriented registration family", " appearance-oriented registration family " and " registration family based on maximum originality of appearance". Within the framework of this division, the Iranian system of registration of real estate bears similarities to the "appearance-oriented family" but it needs to be reformed in order to be part of that family.

Nowadays, online platforms are known as Internet intermediaries in consumer-seller relationships. These platforms, as independent economic actors, play an essential role in making transactions between individuals, contractual terms and even determining the price of goods and services in the WEB. The considerable impact of these platforms on the related market, the network effects, the negative externalities and the public access to these platforms have attracted the attention of regulators to this emerging phenomenon. Using economic indicators and legal instruments, this paper tries to examine the behavior of consumers, sellers and Internet platforms in order to present the optimal economic regulation. Based on our findings, contrary to bureaucrats’ beliefs, platforms are considered as one of the most important regulators of markets due to their technical capability and motivation to build trust and transparency in the platform. However, the role of government regulation should not be overlooked in cases such as network externalities and monopolistic situations.

The “1972 Stockholm Declaration” on the environment is marked as the beginning of the recognition of the right to a healthy environment in the international community. One of the important areas of guaranteeing this right is urban waste management, that is mostly the responsibility of municipalities, and the reason for this importance is the direct contact of urban people with waste in their daily lives and the threat to the environment and their health by waste; Therefore, the extents and necessities of guaranteeing the right to a healthy environment in urban waste management seems vital. This article reviews the reflection of this right in the constitutions of countries and its constitutionalizing in Iran, with a descriptive-analytical approach; and explains the duties of municipalities in guaranteeing the right to a healthy environment for citizens and residents with a focus on statutes. Municipalities, as institutions of local governance and non-governmental public institutions, have an essential and important role in guaranteeing this right in cities, and in particular in the field of municipal waste management. After reviewing the role of municipalities in terms of law and also in terms of the principles of citizenship rights, finally in a case study, the situation of Isfahan Municipal Waste Management Organization in guaranteeing the right to a healthy environment will be explained and discussed. 

The right to a healthy environment has been recognized as a right in the third generation of human rights and is one of the progressive rights that seeks to preserve the environment for present and future generations. The right to a healthy environment is the subject of several international instruments and treaties and therefore carries with it the obligations of governments to protect it. However, all human rights are effective when they are respected in the judiciary. Accordingly, this study seeks to examine the judicial protection of the right to a healthy environment in the proceedings of the European Court of Justice through a descriptive-analytical method. Based on the findings of this study, the European Court of Human Rights, as a regional court based on the founding document, the European Convention on Human Rights, considers itself obliged to investigate and rule on cases of human rights violations. On the other hand, the concept of environmental democracy has been recognized in the proceedings of the court, and this court has paid attention to this concept in several opinions. Although the right to a healthy environment is not explicitly mentioned in the text of the European treaty, the European Court of Justice shows that the court upholds the right to a healthy environment through other materials, such as a dynamic interpretation of the treaty. This article seeks to review the case law of the European Court of Human Rights in protecting the right to a healthy environment.

Designing Suitable state structures for applying Power of sovereignty in form of political powers and state institutions is a requisite for observing the Rule of Law and Good Governance. Theorizing about state structures in executive power has long history. For the last few decades, management structure of judiciary has not been paid attention by scholar and legislators.Creation independent, efficient and responsible judiciary has been studied by theorists of public law and public administration and founder legislator in different countries. Predominant model in this issue is executive model. Based on that model, Ministry of justice has duty of managing judicial power in administrative and financial affairs and hence is responsible in front of relevant political institutions and authorities such as parliament and council of ministers. But from a few decades ago, independent institutions are forming in judiciary. That institutions have received some of competences of the Ministry of Justice step by step. That institutions are known as “(Supreme) Judicial Council”. The findings of this research indicate that the evolution of the Judicial Management System in Iran during the constitutional amendments in 1989 was in the opposite direction of global developments.In this essay by collecting resources in a library way and with descriptive analysis method, we study evolution of management system of judiciary to council system through explaining the development of creation, structures, competences and analyzing function of judicial councils in different legal systems.

United Nations Security Council, which is responsible for maintaining international peace and security, has issued a number of resolutions following the widespread and re-active piracy on important international waterways, particularly off the coast of Somalia and the Gulf of Aden, which pose a serious threat to international peace and security. (Twenty-three resolutions). Since Security Council resolutions are a binding source of international law and states are obliged to comply with them, as well as other obligations under the conventions to which they are party, in this descriptive-analytical study The "limitations" of Security Council resolutions on piracy, which have led to many developments and innovations in the international community's response to the phenomenon, have been discussed. In general, although Security Council resolutions have proposed a variety of strategies to effectively combat piracy, which in the short term have been able to influence the spread of piracy and, with the cooperation of various countries, establish security on some international waterways, this security has been temporary and fragile. And the security of international maritime trade requires other long-term solutions, including the allocation of courts to prevent the impunity of perpetrators of piracy, in addition to the existing methods used, such as patrols, and so on.

The purpose of this study is to investigate the consequences of the lack of legal personality in the economic interest group. The economic development of the country depends on the investment, use of technical knowledge and technology of developed countries in the production system and access to global markets. Achieving this is through various legal ways of participating in economic and commercial activities with legislative role. In Iranian law, in Article 107 of the Fifth Economic Development Plan Law, the economic group with common interests was introduced as a new format. This group is a legal establishment formed freely between natural persons on the basis of joint and several liabilities, individuals who have come together to use appropriate means to advance their own independent activities; However, its legal personality was not recognized by law. The status of the economic interest group raises the question of what are the consequences of the lack of legal personality of this group and what is its position? Findings show that the non-acceptance of legal personality in the economic benefit group, various negative consequences can be expressed, including the discussion of ownership of achievements, property and material and spiritual assets, hesitation in survival, distrust of third parties and problems He filed a lawsuit for and against the economic group.