نشریه تعالی حقوق
سال سیزدهم شماره 4 (زمستان 1401)

The issue of competent law in the matter of moving conflict is about the phenomena under discussion that are formed over time or its effects appear gradually. Some of the differences especially, the rule of law in domestic law and the simultaneous jurisdiction of two laws in the international arena have left the rules of time conflict to be hidden from the keen eye of jurists. Stagnation, impairment of the security of legal institutions and disruption of the integrity of a legal system are the results of views that, regardless of the above-mentioned rules, have a view to maintaining the jurisdiction of the previous law in moving conflict. The solution can be provided by descriptive-analytical method and applying the rules of temporal conflict. In fact, there are defining similarities between the concepts because in both cases, the issue is the limits of the rule of law over the subject and its effects. In domestic law, the old law still retains its validity over past events, but the new law is unrivaled in managing future phenomena. The boundary between domestic law is the time of implementation of the new law and in international law is the moment of change of the communication factor. The boundary between domestic law, the time of implementation of the new law, and in private international law is the moment of change of the communication factor. The difference in the possibility of become retroactive is obvious: In conflict with the rules of the time, the single legislature can extend the law to the past, while in a moving conflict, it is not possible for the latter law to have jurisdiction until the moment of change of the communication factor.

Governments are responsible for providing social resources via their hierarchies of managers and organizational structures. An increasing development in state activities can in turn increase the chances for damaging nations. Particular to this study, excessive material and spiritual damages have been imposed on Iranians due to the entry of Coronavirus into the country, the inappropriate and untimely notification of the entry by the state, and the shortage of virus detection equipment. As obviously stated in the Civil Liability Law, a fundamental principle of Jurisprudence and law involves the necessity of damage compensation by the damager. Although the available jurisprudential and legal documents do not provide any pieces of evidence regarding the irresponsibility of the state for its actions, the article 11 of the Civil Liability Law does not hold the state accountable in this regard. This study is an attempt to illustrate why the state must be held accountable for the given Coronavirus damages. The study hence draw upon the principles of No Harm, Spoilage, Causation, Al-Kharaj bi Al-Dhiman, Unlawful Possession, and Justice in order to suggest that all sorts of damages must be appropriately compensated, without taking the state as an exception.

Duty to inform is part of lawyer’s obligations required by contract and law. The failure of such duty is considered as professional negligence and so resulted in lawyer’s civil responsibility. The purpose of this paper is to comparative study of lawyer’s duty to inform his/her client and a third party, also to explore the related cases and liability by searching differences and discovering similarities between Iranian and American legal systems and to reveal the importance of issue so it would be useful to legislature for establishing effective legal rules or modifying the law. In this article, the necessity of pre-contract disclosure and lawyer's duty to consistently keep client informed during client-lawyer relationship is achieved through comparative scrutiny of the two legal systems by descriptive analytical approach, with focus in informed consent in American law and client interest in Iranian law. A lawyer duty to inform includes any information affect client consent and decision making regarding the lawyer itself or legal representation. Despite conflict between the duty to warn a third person and the duty of confidentiality, disclosure appears necessary in cases another person is in significant danger posed by client.

Article 252 of the Civil Code states: "It is not necessary to authorize or deny immediately if the delay is caused by the original party, the transaction can disrupt the transaction." Now the question is, what is the meaning of the word "can" and the phrase "disrupt the deal"?In other words, what does "can" mean and what is the nature of "disrupting the transaction" and with which well-known legal format can be justified? Can Asil ask the court to break up the deal? Or will the voyeurism deal be disrupted by noble will? In this case, which of the transactions is the application of genuine will in the form of one of the disruptors of the transactions?The answers to these questions, in addition to the theoretical importance, have practical effects such as determining the type of demand during the litigation, declaring or establishing the sentence and determining the time limit of the possibility of allowing the yard to pry. However, only some jurists and jurists have dealt with this issue in a transient and different interpretation regarding the above questions. The present paper discovers all the available and possible opinions and then rehabilitates them with descriptive-analytical method under the title of judicial annulment theories, cucumber legal termination, abstinence from necessity, option of termination of permissible transaction, rejection of non-penetrating voyeurism transaction, referral and independent necessity, and among them has strengthened and introduced the independent theory as al-Mukhtar's theory.

Rationalism is a seventieth century philosophical thought that evaluates issues on the basis of reason as the only valid resource of knowledge and has empiricism as its opponent view. Generally, the school of thought emphasizes on the primacy of reason in different sciences inter alia the international law. Given that reason has provided a basis for rapid and widespread developments in international law, the main issue of this article is to study and evaluate the impact of rationalism on the current bases and order of international law. Accordingly, the impacts of rationalism on international law and its emergence as the battle field of tradition and modernization will be considered in this context. It is obvious that rational approaches have influence on different branches of international law and many important international rules and documents are created according to it. The main aim of this article, which is based on a descriptive-analytical method and library studies, is explaining the rational effects on states’ approaches and practices in international law, and then justify some current developments in international law on the basis of reason. The results of the studies indicate that in different branches of international law, while the transmission and flow of the rationalist approaches is confirmed, in practice, also the legal rationalist traces can be clearly seen in the practice of the states, international organizations and international dispute settlement bodies, although there is a serious confrontation between reason and the reality of the world community.

The permission of the law as one of the justifiable causes of the crime causes the decline of the legal element of the crime. One of the most important cases of legal permission in Iran is the permission of the municipality to demolish citizens' buildings. In granting this license, the legislature has preferred the public interest to the personal interest And has deviated from the rule of respect for citizens' property. Permitted cases of demolition of citizens' buildings by the municipality are: Destruction in order to implement the final decision of the Commission of Article 100 of the Municipalities Law, Demolition in order to implement public and reconstructive projects and demolition in order to eliminate the danger. Although, the granting of this permit by the legislator does not indicate the full authority of the municipality to demolish the buildings without any conditions, each of the three mentioned licenses has its own conditions. In this article, by using a descriptive-analytical method, we have examined the conditions of each case of legal permission and eventually, we have come to this conclusion that on one hand However, these legal permits have been granted to the municipality in scattered laws, it does not have an identity independence of what is stated in the Islamic Penal Code as a barrier to criminal responsibility. On the other hand, in addition to the three mentioned licenses, there are various conditions that In the absence of any of the them, the municipality will be criminally liable for the demolition, Two issues in the municipality's criminal liability for demolition must be considered: First, obtaining permission through the judicial authority does not negate the municipality's criminal liability for demolition and second, to invoke the municipality's act of undermining sovereignty cannot negate the municipality's criminal liability.

Within each legal system, there is a set of legal institutions whose order and quality of relationship are directly related to the efficiency and dynamism of that system. Public law and public law are among the legal institutions that were recognized in the Iranian legal system. In the Constitution of the Islamic Republic of Iran, these legal institutions were mentioned as the general framework of the legal system. The main subject of this research is the analysis and description of the substantive and legal foundations of public law and the legal rights of public law. Using descriptive-analytical method and analysis of issues such as the logic governing law and the principles governing the interpretation of laws, this research seeks to find an answer and remove the ambiguity for the question of what is the difference between intrinsic characteristics, nature and legal basis of legal institutions There is public law and public law, and to what extent does the constitution reflect the characteristics and nature of these legal institutions? The findings show that the logic governing public law is of the type of polemical logic and the interpretation of the rules related to this institution is of the type of broad and free interpretation. The logic governing public law is of the type of formal logic and the method of interpreting its rules is of the type of narrow and limited interpretation. There are principles in the Iranian constitution that contain these legal institutions that can be identified from their relationship with other principles through their inherent characteristics and nature.

The principle of immunity of states is one of the recognized principles in the international society. This general principle rooted in equality of sovereignty of States which results to no jurisdiction of national courts in foreign. Intervention of States in economic, simultaneously with private persons, caused to irrationality of immunity of States; So restrictive immunity substituted full immunity of States and private or commercial behaviors (jure gestionis) become as an exception to immunity of States.For determination of jure gestionis scope some criteria exist like nature of act , purpose of act , bargain party , properties type , profitability and governing law on transaction. Present research beside analyzing the State practices in legislating and adjudicating of United States of America, Canada, United Kingdom, Iran, Austria, Switzerland and Iraq shows that all of them have accepted the nature criteria. Also European Convention on State Immunity 1972 has accepted same criteria. But in opposite UN Convention of State Immunity and their Properties 2002 codified compound criteria means nature, purpose and bargain party.

The legal claim of the Judiciary expert is answering the questions and arguments of the judges where in particular, the role of this institution is responding to criminal cases due to the proven character of the main criminal laws in the post-revolutionary years.The experimental character of the penal laws and successive changes, along with the legislator's wanderings in drawing up a civic policy and a well-designed and uniform form for the judiciary, has led the judges to avoid confronting and accustoming to criminal law, and mostly, they tend to approach as a procedural part of the previous criminal law. In the meantime, the responses from the legal department, which is the law enforcement and procedural link, are beyond the reach of a consultative resource for the prosecutor and, in most cases, it serves as a source of documentation and judgment. The main idea of this article which is apart from the damage and challenges such as the interpretation of the law rather than the problem solving of the case that raises questions. Some items such as lack of expertise in response to some new questions, an attempt respond to the lack of literacy of some of the inquirers, the expression of occasional skinned are conflicting, and there are general responses to office performance. But absorbing suitable forces could lead to more scientific judgments and a strategy for controlling the judiciary in Iran, especially there is a tendency of the judicial system in the world to reduce judicial powers and a priori control. In this regard, the main achievement of this paper is that the performance of the Judiciary's legal department, especially in the field penalty-giving in recent years, is a judicial-academic attempt to establish a link between law and judicial procedures in order to reduce gaps between these two items.

Subordination of commercial companies to the rules and principles of corporate law confirms that the dominant of formalism in this area is a necessity for stakeholder, managers and supervisors activates and with considering the Jus Cogens norms in this field, the stakeholders can not withdraw their capital stock from the corporate unless in framework of laws and charter. Therefore, the domination of rules and charter principles may create some obstacles and challenges on stakeholders or managers. Respect to human codes and obligate to social responsibility is the examples of above mentioned challenges. In this line, the relationship between merchandising (business) companies and social responsibility concept is so important. Meanwhile the domination and scope of corporates laws is not inclusive and generally in confronting between stakeholder’s interests and respects to socially responsibility, corporates interests to be chosen. Absolutely, it doesn’t mean a deadlock for considering the social responsibility by corporates. There are two approaches for interpretation. Although corporate it in self-nature obeys rules to achieve profits but limiting them to the function of profitability creates ambiguities about accepting social responsibility. The ambiguities on social responsibility in corporates can be managed and removed by utilizing human and international standards along with rule of law, corporate governance and as well as conventional tools.

An injunction, as a remedy in tort law, is a court order prohibiting a person from doing something or requiring a person to do something. Given the wide range of subjects of these orders, this article examines what tests are established in English and Iranian law for its issuance and what obstacles can make the courts reluctant in issuing an injunction? injunctions may be issued before the final judgment as a temporary remedy or in the final judgment as permanent remedy. This article shows that, in general, injunctions in both legal systems is absolutely based on the discretion of the court, and whenever the court finds that the best remedy is the injunction, and damages cannot adequately compensate the victim’s losses, it issues the injunction. Accordingly, if the court finds that the issuance of an injunction violates the liberty of persons or inflicts unjust losses on the defendant, it refuses to issue the injunction and award damages instead of an injunction. But in English law, the loss of public resources cannot override the victim’s right to the injunction. Whereas the public interest in Iranian law have been considered by lawmakers and can be an obstacle to the issuance of an injunction.