فصلنامه پژوهش حقوق خصوصی
پیاپی 38 (بهار 1401)

One of the shortcomings of Napoleon's code was the lack of "lapse" of considerable contracts, which was recognized by French doctrine and jurisprudence. Therefore, they tried to propose a codification in various civil law revision projects. Thus, in Decree No. 131-2016, February 10, 2016, the Law of Obligations and Contracts, a new institution called "caducité (lapse)" was envisaged in Articles 1186 and 1187 of the French Civil Code. This institution describes the status of a contract that has been entered into quite validly, but then loses one of its essential elements due to a subsequent event. The result of this situation, is the discharge of the obligations of the parties to the contract. Iran Civil Code does not define such an institution, but examples of caducité (lapse) can be deduced from some provisions of Civil Law and other laws. In general, the reasons for lapse of the contract can include the deterioration of the subject of the contract, the loss of its cause, death or incompetence in the obligations of the person and If suspensive condition fails the prescribed period provided in the suspended condition that any occurrence of the recent assumptions may lead to the termination of the contract. Lapse occurs automatically and its effect is not retroactive. Thus, in the opinion of the authors, the provisions of Iran Civil Code are incomplete in this respect, and the establishment of such an institution can be useful.

The principle of prohibition of submitting a new claim in the appeal process is one of the governing principles in the court of appeals that is stipulated in Article 362 of the Code of Civil Procedure. Given the opposition between Articles 98 and 362 of the Code of Civil Procedure, it is essential to effectively investigate the matter. In view of the French Code of Civil Procedure, the mentioned principle is compared in the Iranian and French legal systems. A comparative study of the two legal systems indicates that Article 564 of the French Code of Civil Procedure and the two subsequent Articles, after mentioning the said principle, specify the exceptions by pointing out the criterion. The criteria mentioned in similar instances can be generalized to reach a united criterion to be applied. After mentioning the said principle as an instance, Article 362 of the Iranian Code of Civil Procedure states the exception and asserts that the said instances cannot be taken as criteria and the instances under Article 362 of the Iranian Code of Civil Procedure should be viewed exclusively, judicial procedure has not reached the unity of procedure and the deficiency shall be amended through enacting appropriate regulations

The Code of Civil Procedure In Article 120 has announced: the plaintiff is liable for damages to the litigant as a result of garnishment in the event of a final judgment against him, and in Article 323, the liability of the applicant for an interim injunction is determined if the plaintiff fails to file a lawsuit within the legal deadline or the plaintiff's claim be rejected. But the plaintiff's liability in other cases of cancellation of the garnishment or order needs to be reviewed and analyzed. Examination of the subject shows that, in addition to the issuance of a verdict against the plaintiff, in cases of issuance of a final lawsuit and failure to file a lawsuit within the deadline and termination of the garnishment appointment due to protest, fault and liability of the plaintiff is proven. However, in cases of cancellation of the garnishment or order due to rising up the cause of it, withdrawal of the applicant and removing the effect of the order by entrusting security, responsibility of the plaintiff depends on the outcome of the lawsuit.

Achieving a fair trial and ensuring justice in the trial is initially subject to identifying the principles governing the trial and adapting it to the principles and rules of the national and transnational legal system and adapting it to the circumstances prevailing in each judicial authority. As a quasi-judicial authority with a conciliatory approach and compromise, on the one hand, the deliberations of the council in accordance with the laws and regulations are not subject to the procedures and principles of the trial, and on the other hand, the deliberations of the council in terms of principles and rules are subject to the rules of civil and criminal procedure. Due to the absence of the judge in the council meeting, this issue causes inconsistencies and conflicts in the issuance of the verdict. Sub-vote is the result of the review process and in practice the council judge does not play a key role in it. Therefore, in order to comply with the rules and principles of procedure, it is necessary to separate the issues raised in the council in terms of compromise and compensation from the beginning. Compromise issues without observing the court proceedings by the members of the council and dispute issues with the presence of the council judge in the hearing in accordance with the principles of the court and the governing procedures to be considered in order to achieve a fair trial in practice in this judicial authority.Keywords: Judicial Authority, Dispute Resolution Council, Fair Trial

Advances in science and its developments in today's world for the better production of goods have led to the development of new theories and solutions that may also pose risks in the products offered to consumers, but current human knowledge can not recognize it. While the present study proves that the advancement of science simultaneously leads to the discovery of defects and dangers of these goods, and legal knowledge should provide appropriate coverage to compensate for the damages caused by them. Therefore, the issue of coverage of damages due to development risks is one of the most challenging issues in the field of civil liability that has been studied in most legal systems, but in Iranian law and jurisprudence, the risk of technology development and liability has remained silent. Therefore, the nature and characteristics of development risk with a descriptive and analytical method are studied in detail in this article and the possibility of covering such risks in a restorative and preventive manner in the form of compulsory insurance, compensation guarantee fund, punitive damages, issuance of prohibition agreements, and The application of the precautionary principle has also been proven

The Transfer of debt in the Principles of European Contract Law is a tripartite agreement that may also be concluded between the original debtor and the new debtor. The existence of scattered provisions in Iranian law, especially assuming the formation between the transferor and the transferee, needs to be investigated by the present study with aim to eliminate the shortcomings in the law and with descriptive-analytical method. The results show there is a relationship between the transferor and the transferee in three ways. First, the contract. The transfer of debt, even if it is made between the transferor and the transferee, will lead to the full substitution of new debtor, provided that there is the prior consent of the creditor. In addition, the contract concluded between the transferor and the transferee without the consent of the creditor will lead to the transfer of debt with incomplete substitution of new debtor, like a liability insurance. Second, the existence of debt. Third, the area of responsibility transferred to the transferee. principle is to transfer the debt to the transferee with the same characteristics as the original debtor. However, the liability of debt transferee may increase or decrease, such as a liability insurance.