نشریه دانش حقوق مدنی
سال یازدهم شماره 1 (پیاپی 21، بهار و تابستان 1401)

Despite the importance and numerous implications of determining a competent court in claims relating to the liability of air carriers, the criteria set forth in the Warsaw and Montreal documents are ambiguous, and each country offers its own internal interpretation that, in addition to the principle of uniformity. These documents are in conflict, making it difficult to determine the competent court. Given that the determination of a competent court leads to the identification of the substantive law and the form governing the litigation, this ambiguity in the court's judgment causes us to be incapable of recognizing the substantive and formal law. Moreover, due to the special requirements of air transport and ideals such as the protection of the users of the industry, it is as if its rules, with a break with tradition, are inconsistent with what is called certain principles. Updated and crystallized. One of these cases is the recognition of a competent court, which ignores the will power of individuals in determining it, and the plaintiff can only sue in limited and predetermined countries. A will that is respected in other modes of transport, including maritime transport rights. Accordingly, it is necessary to first explain the criteria for the place of residence of the carrier, the main place of work of the carrier, the place of work of the contractor and the court of destination; Because their recognition leads to the identification of the formal and substantive law in lawsuits related to the responsibility of the transport operator.

In the first paragraph of Article 1 in the Law on Interest-Free Banking (interest), it is one of the main objectives to establish a monetary and credit system based on right and justice (observing Islamic rules) in order to regulate the proper circulation of money and credit for health and economic growth of the country. But despite 40 years of law enforcement, not only have these goals not been achieved, but the gap has also been doubled. Although the banking law has not changed, the regulations and sections related to banking operations are constantly changing and updating, but still banking is still the first economic problem of the country and has not been able to achieve its goals. Therefore, in this article, in a descriptive-analytical method, in accordance with Islamic standards of interest-free banking operations, it was found that contrary to Islamic standards, this law has been emptied of its content by the prevalence of approaches such as maintaining the structure of usury banking system, instrumental attitude to contract, injustice, abusing the customers, and the imposition of interest-free banking operations.

In Iranian law, despite the dominance of the theory of fault, other principles such as Risk Theory, the presumption of fault and absolute responsibility have been accepted, and the basis of responsibility of each of the above persons is compatible with one of these principles. Explaining the basis of responsibility from this perspective is important that in different cases, the possibility or impossibility of imposing responsibility can be examined. For example, the basis of the driver's liability is the theory of fault, and therefore, if she observes all the rules and regulations of traffic, she will not be given the title of driver who caused the accident and is therefore exempt from liability. In the Law of Obligatory Insurance approved in 2016, several persons have been identified as responsible for financial and physical damages payable to persons injured in accidents caused by vehicles. From the insurance company, the Fund of Providing Corporeal Damages, the driver who caused the accident to the pedestrian who passes through unauthorized areas. All these people and other people such as the road administration are obliged to compensate the damages, but the reason for the responsibility of each is different, and accordingly, the basis of their civil liability is different from each.

Professional civil liability involves the responsibilities arising from legal advice, medicine, advocacy, psychology and consultation, sports affairs and economic consulting. The purpose of this study is to analyze the jurisprudential and legal components of civil liability of psychologists and counselors towards clients. The debate over whether the civil liability of psychologists and counselors is contractual or coercive is not found in any of the writings, as the consequences of this discussion have not been analyzed. The method in this research is descriptive-analytical and library. One of the most basic questions raised in this regard is the jurisprudential and legal basis of the responsibility of psychologists and counselors to clients and the nature of the commitment of psychologists and counselors to clients. The research findings indicate that the basis of liability in individual and group counseling that the client refers directly and voluntarily to the psychologist and counselor, in addition, it is possible to invoking special rules of coercive liability, in principle, this type of responsibility should be considered as contractual. The commitment of psychologists and counselors is an obligation by means and action and it does not seem justified to hold them liability for the damage caused by the action they have taken based on current knowledge and technology. Also in article one of the Civil Liability law, it considers civil liability to be based on the fault of the researcher.

The institution of good faith is not seriously considered in Iranian domestic law, and it seems that one of the important necessities for achieving justice and generalizing fair proceedings is to pay attention to this principle in the field of legislation, judicial procedure and arbitration. This institution is fully recognized in international law. ICSID is one of the most important international arbitration bodies in disputes arising from international investment. The role of ICSID in international investment protection against invested governments has been defined. Access to this important arbitration body is not possible except through good faith. Therefore, breach of good faith is considered as one of the obstacles to gaining this support. In this research, which has been done in a descriptive-analytical manner and by referring to the awards issued by ICSID, we seek to answer the question of what effect the violation of good faith by the investor will have on the preliminary and Merits proceedings. As a result, the hypothesis of the negative effect of malice on the ICSID procedure was confirmed in such a way that in the preliminary stage it will cause inadmissibility and in the Merits stage it will cause disenfranchisement.

In the main suit and ancillary suit, what is most noticeable is the confrontation of one or more plaintiffs against one or more defendants, or the entry and attraction of a person or third parties to the main litigation. The question is, according to the rules governing litigation, can a large number of persons be used as a party to the litigation (plaintiffs or defendants), without all of them participating directly in the proceedings? Article 74 of the Code of Civil Procedure has implicitly identified a form of civil litigation. This type of claims applies to certain non-enclosed people from a village or part of the city, but plaintiff only one or a few of them will be listed in his petition as a defendant. This claim is generally considered to be plaintiff and their teammate, and in particular, such as claims related to consumer rights (According to Article 48 of the e-commerce law, approved by the Islamic Consultative Assembly of Iran on February 17, 2002), are focused on claimants. It should be noted that, this type of lawsuit has the official name in foreign law, especially American law, as a class action. This article proves the necessity of such a lawsuit by focusing on the readers and their teammate.

In the Iranian legal system, according to Article 685 and Article 627 of the Civil Code, citing the opinions of contemporary jurists, the financial obligation to pay the debt owed in the form of a guarantee contract or the payment of the debt has not ceased with the consent of the subject owed or indebted; This is while the forthcoming research, by criticizing the above-mentioned evidences, has considered the application of the word as impaired and, following the steps of Imami jurisprudence, has considered the satisfaction of the content as the condition for establishing a guarantee contract; In other words, if the donation guarantee violates human rights and imposes an obligation on the subject of the guarantee, his denial and obstruction will prevent the conclusion of the guarantee contract and will invalidate the agreement between the guarantor and the subject; As a result, we have inevitably interpreted the appearance of legal material; In this way, the application of the mentioned materials in the position of expressing the common person from paying the debt means assuming the debtor's request or not preventing and denying him; In other words, the appearance of legal materials is silent on the presumption of prohibition and denial of the debtor and the content or condition of the establishment of our contract, and in this case it is necessary to refer to the general rules and protect the mentioned human rights.

Crypto currency is a cryptocurrency-based currency that, despite its decentralized management of users, has always secured payments and operations. Fast transfer with low cost, decentralized issuance, definite amount and high security of storage prevent the blocking or seizure of this type of asset. Islamic thinkers have two different views on the cryptocurrency. It is haram and forbidden and it is permissible and unobstructed. In addition to these religious challenges, due to the peer-to-peer transfer and decentralization and the consequent elimination of intermediary institutions, the requirement for policy-making in the face of this emerging economic phenomenon has become particularly important. Especially since every day we see tremendous advances in technology, the growth of multinational corporations, the integration of the national economy into the realm of global economies, the change of monetary and financial systems, and finally the creation of new and decentralized global markets. In the drawn space, the new monetary system is a necessity and facing such a space is undeniable. In the meantime, crypto currency is a precursor to the awareness of governments to provide the necessary conditions for global developments with the necessary policies at different levels of governance, legislation and regulation. Our country's approach has been different and sometimes contradictory since the emergence of this new phenomenon. Therefore, in this article, with the method of library analysis, we have dealt with jurisprudential and legal studies of encountering cryptocurrencies, and in the path of globalization, the comprehensive strengthening of this inevitable encounter before universality becomes a necessary necessity that we know.

The study of the law of shipwrecks is extremely significant concerning their effects on maritime transportation, marine ecosystems, government economics, and even the international community. The enactment of several national and international rules in the context of the law of shipwrecks is an approved turning point on this issue. However, it can be seen that due to the divergence of opinions, a single definition cannot be provided for a shipwreck. Further, in most relevant conventions, providing the instances for shipwreck has replaced its definition. The concept of shipwreck, which is usually associated with two objective (loss of navigation function) and subjective (abandoning the ownership by owner and ship abandonment) elements or one of them, has been addressed in the legal systems. The concept in conventions can be achieved from the instances provided in them, which are usually accompanied by a reference to one of the objective or subjective elements.

Although the validity of contract of option’s waiver after emergence of option isn’t consensus by Juris consults and surely the content of 448 article of civil law must be observed to the validity of contract of option’s waiver after emergence of option, But the issue of validity and nullity of contract of waiver of guarantee for non-realized option has conflicted intensely among Juris consults and in this case contradictory opinions have raised. The contract of waiver of guarantee for non-realized option means that parties of waiver of option enter to agreement before its emergence–whether before contract or meanwhile contract or after the contract- with one of the methods of waiver of option. Theories of Juris consults in validity and nullity of contract of waiver of guarantee for non-realized option haven’t been evaluated by researchers but sometimes in admit of juridical topics it have only done an incomplete discussion about a special option for contract of waiver of guarantee for non-realized option. Therefore recent research have studied the validity and nullity of contract of waiver of guarantee for non-realized option and also the content of 448 article of civil law, on the strength of descriptive method and inference of Imamieh juridical texts and achieved to this result that contract of waiver of guarantee for non-realized option and also the content of 448 article of civil law, is valid according to the statement of the selected theory of research and it is void according to the statement of other Juris consults theories.

Banks, whether public or private, as one of the most important economic organisations by mobilisation of financial resources through taking deposits and with the intention of making profits make investments and give loans to their customers. The expansion of economic relations and the needs of the people to banks requires a carful investigation of the legal nature of banks’ relationship with their customers whether legal or natural persons or otherwise. In the past, the banking was simple and elementary. In such an environment in the case of emergence of any problem or issue and in case of causing damages to banks’ customers, it was easy to identify the cause of the damage as the banks and their customers were in interaction in person and their relationship was not complex and extensive as they are now. Nowadays, given the technological advances and the advent of electronic communications has led the banks to utilise these technologies and provide new services via new methods to their customers. The use of such new technologies has led to new complexities between banks and their customers. Given such complex relations, it is possible that customers suffer some damages and they seek compensation.  Depending on whether such damages are could come under a contractual relations or be based on a tort, the method of compensation varies. Banking contracts such as  interest free loans, Joaleh, Mozarbeh as example of a contractual relationship between banks and their customers. However, the legal basis of the contractual and non-contractual liability of the of banks vis-à-vis their customers could be found in in the general and special legislations such as Articles 11 and 12 of the Civil Liability Act and also Article 35 of the Monetary and Banking Act according to which “each bank is liable to compensate the damages which has been caused to their customers  due to the banking operations of the bank”. Based on the prima facie understating of this Article, there is no need to established the a bank’s fault and only the relationship between the damages caused to the customer and the bank’s activity is enough. There are a number of legal vacuums and defects in the relationship between banks and their customers. Nowadays such deficiencies and failures in the banking sector do exist. Therefore, taking into account general legal rules and principles of civil liability, no damages should be left without compensation. The banking deposit should also follow the same route.

In Iranian law, Iranian Electronic Commerce Act and Consumer Rights Act, particularly, consider obligation to provide pre-contractual information to consumer. The proposal on a Common European Sales Law also obliges sellers and suppliers to provide information to the consumer, and defines cases of this duty in detail. Although there are significant similarities between the above-mentioned laws in the cases of information, But Iranian Electronic Commerce Act counts fewer cases and for example doesn't mention providing information about seller’s code of conduct or complaints handling policy.  there is a big difference between the two systems in the remedies, in a way that Common European Sales Law provides better consumer protection, because different remedies according to obligations is determined, like as consumer is not liable to pay additional charges when seller fails to comply with information duties. This article, which is based on descriptive-analysing research method, reviewing the relevant laws, seeks to provide ideas for law amendment and stronger protection of consumer rights in Iran in the area of duty to provide pre-contractual information.