مجله حقوق خصوصی
پیاپی 22 (بهار و تابستان 1392)

According to Article 3 of Civil Responsibility Law (Tort Law), it is necessary for the judge to determine the amounts of damages by considering the circumstances of the case. One of the instances of such circumstances which may have an impact on determination of the amount of damages, as mentioned in Article 4(2) of Tort Law, is financial status of the person causing the loss. Following the Swiss law, the Iranian legislation has authorized the judge to award an amount of damages less than actual one if full compensation leads to the poverty of the person and his fault was trivial. Such authority which is founded on the basis of constitutive judgment in civil liability cases, no longer is valid in the Iranian legal system. Moreover, the Iranian law considers the financial status of the debtor by different mechanisms such as exemptions of certain properties from being confiscated for debt services and insolvency.

The expertise order is of interlocutory orders that an arbitrator would make during the arbitral proceeding, when the subject is being technical. The legislator has dealt with this subject only in Article 476 of the Civil Procedure Law. This Article only provides the possibility of appointing an expert by the arbitral tribunal. It does not provide further details such as the possibility of appointing experts by the parties, experts’ knowledge and the costs and expenses of the expertise. Therefore, in this paper, while expressing the above mentioned shortcomings, we answer the following questions: should the parties be able to appoint the expert? Should the appointed expert have certain qualities such as impartiality and independence? What principles of procedure should be considered with respect to expertise order? In what manner should be the costs and expenses of expertise shall be shared or paid by the parties?

It is a question whether the right to preserve the child’s identity as recognized by the Convention on the Rights of the Child protects only the child who is separated illegality from the birth parents or is also available to the adopted child and the child born of artificial insemination. On one hand, the long experience of deprivation of the adopted child from his origin which causes psychological damages to him, and on the other, the role that heredity plays in many disease treatments has led them to grant protection to such child. Hence, in Western countries the process of anonymity has been replaced by the policy of disclosure. In the Iranian law, regarding to the mandatory character of lineage provisions in the Islamic law, it is necessary that anonymity approach should be replaced by the disclosure policy of donor’s identity so the right of artificial insemination child to be aware of his or her origin would be protected because the child’s right is not transferable.

Electronic cheque (check) is one of the electronic commercial instruments, which could be transferred in two ways, full electronic (original) check and substituted electronic check. Principally, electronic original checks cannot be issued without sufficient funds at the bank and in case of insufficient fund or its the system automatically block it. This type of checks has special legal regulations and is one of the payment methods in E-commerce. In this paper, the issuing of electronic checks, acceptance, endorsement and contents are compared with paper checks in order to indentify its legal rules.

By the widespread of international relations, the issues related to private international law, particularly the entitlement of foreigners to the civil rights, have become more important. In the Iranian law, although the entitlement of foreigners to the civil rights has been recognized as a principle as per Article 961 of the Civil Code, but its three paragraphs provides certain exceptions. Owing to the ambiguity and differences of such principle and its exceptions, an reasonable interpretation of the Article is necessary. In this paper, in addition to the precise explanation of the concepts and instances of Article 961 of the Civil Code, we review the most controversial debate on the aforesaid Article (i.e. the identity or the difference among the first and third paragraphs of the Article) and further to comment on the different views on this issue. We also explain that the third paragraph is different from the first paragraph by its meaning and its application.

Undoubtedly, the Legislator has paid special attention toward protection of lineage of persons so as the weakest evidence like lottery may be used to establish a lineage under the Shiite Jurisprudence. Therefore, the value and credit of scientific evidence such as DNA test in proving lineage is very clearly acceptable. But the point worth considering here is evaluating whether such scientific evidence can negate the lineage, because the conservation of the family is greatly respected by the Sharia and restricted the ways a lineage may be negated. This research paper deals with this issue whether DNA test may be used for negating lineage by considering the fact that the ways of negating lineage is restricted by Sharia.

In the normal cases where someone pays the other some money or delivers him a property for payment of its debt, it is assumed that the payer is going to discharge his debt. Though, there are some cases where the payment is not made for discharging a debt. Thus, under such circumstances, the payer has the right of restitution of the money or property paid. This case is dealt with in both French and English legal systems. Unlike the French civil law, the Iranian civil code, without allocating a quasi-contractual title for such erroneous payment, has chosen one of the dual traditional categories of obligations and titled it "obligations which derive out of a non-contractual relationship". As it will be shown, this type of payments is done due to a mistake that differs from ignorance. For establishing restitution of an erroneous payment, certain conditions should be respected. The aforesaid payment creates certain obligations for the receiving party, namely, restitution of the property and reimbursement of benefits received. In some instances after the restitution of the property, the recovery of expenses incurred by the receiving party shall be also paid.