Shahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Possibility of Invoking the Breach of Fair Trial in the European Patent Office as a Basis for a Foreign Investment DisputePossibility of Invoking the Breach of Fair Trial in the European Patent Office as a Basis for a Foreign Investment Dispute113710215210.22034/jlr.2020.184596.1522FAGoodarzEftekhar JahromishahidbeheshtiSogolFazelmotlaghShahid Beheshti UniversityJournal Article20200105Patents can be protected as foreign investment. To acquire this protection, patents shall be registered in the country where the protection as foreign investment is sought. The international investment agreement between the state of the patentee as an investor and the investor-state where the protection is sought shall recognize the patent as an investment. The main question is how the patentee’s complaint can be based on a breach of fair and equitable treatment on the ground of violation of the right to be heard in the European patent office and bring such claim before the international investment arbitration tribunal as a breach of such provision of the International Investment treaty. In this paper, the right to be heard and the right to appeal from the decision of the patent office is analyzed in European Patent Convention and the respective precedents. Finally, the prerequisites of bringing a complaint before the foreign investment tribunal is scrutinized.Patents can be protected as foreign investment. To acquire this protection, patents shall be registered in the country where the protection as foreign investment is sought. The international investment agreement between the state of the patentee as an investor and the investor-state where the protection is sought shall recognize the patent as an investment. The main question is how the patentee’s complaint can be based on a breach of fair and equitable treatment on the ground of violation of the right to be heard in the European patent office and bring such claim before the international investment arbitration tribunal as a breach of such provision of the International Investment treaty. In this paper, the right to be heard and the right to appeal from the decision of the patent office is analyzed in European Patent Convention and the respective precedents. Finally, the prerequisites of bringing a complaint before the foreign investment tribunal is scrutinized.https://lawresearchmagazine.sbu.ac.ir/article_102152_8c6ec99639df629f1e97ce92c8ecfff2.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121The Claims’ Status in the Patent Applications in the Scope of Patent ProtectionThe Claims’ Status in the Patent Applications in the Scope of Patent Protection386210215410.29252/jlr.2022.225451.2082FASaeedHabibaPrivate and Islamic Law Department, Faculty of Law and Political Science, University of TehranGolrizMehrdar Ghaem MaghamiPrivate Law, Faculty of law, University of Tehran, Tehran IranJournal Article20220106Nowadays, in the field of inventions, the importance of the claims in the declaration is not hidden from anyone. In other words, the beating heart of a patent application is the claims contained in a declaration. Despite the importance of the claims, the Law on Patents, Industrial Designs, and Trademarks, approved in November 2007, does not define the claim. Also, the law does not specify rules about, how the claim should be interpreted, why the claim was written, whether or not the inventor should write the claim, and the types of claims and other issues. Therefore, it is necessary that the claim the function and also the types of claims be ruled by the legislator. Therefore, in this article, with the analytical and descriptive method, an attempt has been made to study the position of the claim, and function of the claim, which has a very important role in the protection of the invention. Therefore, it is suggested that in the draft proposal for the protection of industrial property, a part of the law be devoted to the subject of the claim and instead of the characteristics of the claim, the intrinsic elements of the claim be mentioned.Nowadays, in the field of inventions, the importance of the claims in the declaration is not hidden from anyone. In other words, the beating heart of a patent application is the claims contained in a declaration. Despite the importance of the claims, the Law on Patents, Industrial Designs, and Trademarks, approved in November 2007, does not define the claim. Also, the law does not specify rules about, how the claim should be interpreted, why the claim was written, whether or not the inventor should write the claim, and the types of claims and other issues. Therefore, it is necessary that the claim the function and also the types of claims be ruled by the legislator. Therefore, in this article, with the analytical and descriptive method, an attempt has been made to study the position of the claim, and function of the claim, which has a very important role in the protection of the invention. Therefore, it is suggested that in the draft proposal for the protection of industrial property, a part of the law be devoted to the subject of the claim and instead of the characteristics of the claim, the intrinsic elements of the claim be mentioned.https://lawresearchmagazine.sbu.ac.ir/article_102154_7868a0518437d3e46f67a05ef2262cf9.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Eudaimonist Virtue Ethics and Individual Rights: Investigating the View of Douglas B. Rasmussen and Douglas J.Den UylEudaimonist Virtue Ethics and Individual Rights: Investigating the View of Douglas B. Rasmussen and Douglas J.Den Uyl638410169910.29252/jlr.2021.184529.1513FAAfsaneMirzazadeShahid beheshti universitySeyed MohammadGhari Seyed Fatemishahid beheshti. faculty of law, Tehran, IranJournal Article20191221One of the readings of virtue ethics is eudaimonist virtue ethics. Explaining the human flourishing features and emphasizing the necessity of self-direction, Rasmussen and Den Uyl state that the approach of Aristotelian virtue ethics may be considered as a foundation for individual rights and, then, as the main basis for a liberal neutral minimal state. They consider individual rights as a meta-normative principle, because it is associated with the creation and justification of a political-legal ground that has been ensured and provided the possibility of pursuit of human flourishing. To criticize this view, it should be stated that it has a consequentialist approach despite this theory emphasizes presenting a virtue ethics-based theory of the rights with a neo-Aristotelian approach and it is not sufficiently based on the Aristotelian view. Rasmussen and Den Uyl try to introduce human flourishing as a determinant factor for justifying individual rights, but, they don’t introduce any virtue as a basis and source of Human Rights.One of the readings of virtue ethics is eudaimonist virtue ethics. Explaining the human flourishing features and emphasizing the necessity of self-direction, Rasmussen and Den Uyl state that the approach of Aristotelian virtue ethics may be considered as a foundation for individual rights and, then, as the main basis for a liberal neutral minimal state. They consider individual rights as a meta-normative principle, because it is associated with the creation and justification of a political-legal ground that has been ensured and provided the possibility of pursuit of human flourishing. To criticize this view, it should be stated that it has a consequentialist approach despite this theory emphasizes presenting a virtue ethics-based theory of the rights with a neo-Aristotelian approach and it is not sufficiently based on the Aristotelian view. Rasmussen and Den Uyl try to introduce human flourishing as a determinant factor for justifying individual rights, but, they don’t introduce any virtue as a basis and source of Human Rights.https://lawresearchmagazine.sbu.ac.ir/article_101699_c1b58393a8fc793090b6a70165ff256c.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Double Insurance and the Right to ContributionDouble Insurance and the Right to Contribution8511210166410.29252/jlr.2021.113132.0FAMohsenIzanlooAssociate professorMasoumehNazeriAllameh Tabataba'i UniversityJournal Article20180102Double insurance is provided when several insurers cover the same property against identical risk with respect to the same period. Unlike other legal systems, Iranian Act Insurance does not have any explicit provision about the status of double insurance and in this respect, different opinions have been raised by legal writers. However, assuming the validity of multiple insurances, this issue brings up how the insured is entitled to claim against insurers. Some believe that each insurer will be liable for a ratable proportion only, and some others have an opinion that the insured may recover the full amount of his loss from whichever insurer or insurers he chooses. It seems that the mere solution is a final division of liability between insurers and in other word is the right of the contribution is defined as the right of insurers who have paid a loss to recover a proportionate amount from other insurers who are also liable for the same loss<em>.</em>Double insurance is provided when several insurers cover the same property against identical risk with respect to the same period. Unlike other legal systems, Iranian Act Insurance does not have any explicit provision about the status of double insurance and in this respect, different opinions have been raised by legal writers. However, assuming the validity of multiple insurances, this issue brings up how the insured is entitled to claim against insurers. Some believe that each insurer will be liable for a ratable proportion only, and some others have an opinion that the insured may recover the full amount of his loss from whichever insurer or insurers he chooses. It seems that the mere solution is a final division of liability between insurers and in other word is the right of the contribution is defined as the right of insurers who have paid a loss to recover a proportionate amount from other insurers who are also liable for the same loss<em>.</em>https://lawresearchmagazine.sbu.ac.ir/article_101664_3393943cfaaf586fefd9c487359bc3a7.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Police Diversion in the England Criminal Justice System; Justifications and ExamplesPolice Diversion in the England Criminal Justice System; Justifications and Examples1131388761410.22034/jlr.2020.184186.1433FAHasanRoodsarabifaculty of law
shahid beheshti universityNasrinMehraFaculty Member of Shahid Beheshti University Law School Director of the Department of Criminal Law and CriminologyJournal Article20190918Police diversion has a long history in England as a means by which the police try to prevent low-level offenders from entering into the criminal process. In fact, due to its compliance with the Common law legal system and the governance of the accusatorial system over its criminal prosecution and the absence of the prosecution service, at least until a few decades ago, the police were considered as the main agency at the pre-trial stage and had almost most prosecution and diversion powers. Currently, it has major discretion in stopping criminal proceedings or preventing offenders from entering into the criminal justice system, which is referred to as the "out of court disposals". The police exercise these statutory and more discretionary powers in the summary and either-away offenses. The tendency of the country's penal system to police diversion has more historical, criminological, and pragmatic fundamentals. On the other hand, Iran's criminal justice system is based on Civil Law, and the polices are an executive under the jurisdiction of the judiciary and have not been given diversion power by law. However, they are taking some measures that can be termed police diversion. Police diversion is also facing challenges, most notably conflict with the principle of judicial punishment or principle of nulla poena sine iudicio.Police diversion has a long history in England as a means by which the police try to prevent low-level offenders from entering into the criminal process. In fact, due to its compliance with the Common law legal system and the governance of the accusatorial system over its criminal prosecution and the absence of the prosecution service, at least until a few decades ago, the police were considered as the main agency at the pre-trial stage and had almost most prosecution and diversion powers. Currently, it has major discretion in stopping criminal proceedings or preventing offenders from entering into the criminal justice system, which is referred to as the "out of court disposals". The police exercise these statutory and more discretionary powers in the summary and either-away offenses. The tendency of the country's penal system to police diversion has more historical, criminological, and pragmatic fundamentals. On the other hand, Iran's criminal justice system is based on Civil Law, and the polices are an executive under the jurisdiction of the judiciary and have not been given diversion power by law. However, they are taking some measures that can be termed police diversion. Police diversion is also facing challenges, most notably conflict with the principle of judicial punishment or principle of nulla poena sine iudicio.https://lawresearchmagazine.sbu.ac.ir/article_87614_68984495fc50a2913b859351f068580c.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Judicial impartiality, criteria of determining and instances in international documents and European court of human right procedureJudicial impartiality, criteria of determining and instances in international documents and European court of human right procedure13916110156810.29252/jlr.2021.110968.1055FAAzimAkbariPh.D. candidate of International Law, Faculty of law, theoloy and political sience, Olum tahghighat azad university, tehran, iran,GhasemZamaniteacherJournal Article20171222Abstract<br /><br />Wherever, legal document implies judicial independence, impartiality of judiciary is next to it. Judicial Impartiality like judicial independence is fundamental requirement of judgment and basic description of the judiciary. Impartiality is the matter that more than the other features of the judiciary is in consideration of people and the most fear and Dissatisfaction from the function of judiciary is caused by the lack of this feature. People may do not understand the necessity of judicial independence but know that impartiality is their Absolut rights and follow up observance of that. Litigating of 662 lawsuit from 1970 until 2021 at European court of justice proof this remark. The Judgments which implies of court procedure and many legal content such as distinction between subjective and objective impartiality. In this paper determine concept of judicial impartiality and its instance in accordance with practical procedure of courts and European court of human right.Abstract<br /><br />Wherever, legal document implies judicial independence, impartiality of judiciary is next to it. Judicial Impartiality like judicial independence is fundamental requirement of judgment and basic description of the judiciary. Impartiality is the matter that more than the other features of the judiciary is in consideration of people and the most fear and Dissatisfaction from the function of judiciary is caused by the lack of this feature. People may do not understand the necessity of judicial independence but know that impartiality is their Absolut rights and follow up observance of that. Litigating of 662 lawsuit from 1970 until 2021 at European court of justice proof this remark. The Judgments which implies of court procedure and many legal content such as distinction between subjective and objective impartiality. In this paper determine concept of judicial impartiality and its instance in accordance with practical procedure of courts and European court of human right.https://lawresearchmagazine.sbu.ac.ir/article_101568_7a3971a4d33f7daa4ed021e150c6ecc7.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Analysis of the International Court of Justice's Reasoning Approach to Uphold the United States of America's Second Preliminary Objection in the Case of "Certain Iranian Assets"Analysis of the International Court of Justice's Reasoning Approach to Uphold the United States of America's Second Preliminary Objection in the Case of "Certain Iranian Assets"16318610120010.29252/jlr.2021.184870.1596FAMohsenAbdollahiInternational Law Department, Faculty of Law, Shahid Beheshti University, Tehran, IranNargesAnsariJournal Article20200419Regarding the “Certain Iranian Asset” case, the International Court of Justice faced five preliminary objections with respect to the jurisdiction of ICJ and admissibility of the case which were raised by Respondent. As the second preliminary objection, the United States requested the Court to dismiss as outside the Court’s jurisdiction all claims, brought under the sovereign immunity as customary international law. Iran relied on Article IV (2), Article X (1), and Article XI (4) of the Treaty of Amity to support its claim. However, ICJ upheld the second objection of the USA based on its interpretation in accordance with the Treaty’s object and purpose and also its finding in “Immunities and Criminal Proceedings Case” and “Oil Platforms Case”. In contrary to ICJ’s opinion, a logical relationship can be seen between the object and the purpose of the Treaty and the provisions which have been mentioned by Iran. Such a conclusion could be reached by analogy and deductive method as well as analysis of the separate opinions of judges.Regarding the “Certain Iranian Asset” case, the International Court of Justice faced five preliminary objections with respect to the jurisdiction of ICJ and admissibility of the case which were raised by Respondent. As the second preliminary objection, the United States requested the Court to dismiss as outside the Court’s jurisdiction all claims, brought under the sovereign immunity as customary international law. Iran relied on Article IV (2), Article X (1), and Article XI (4) of the Treaty of Amity to support its claim. However, ICJ upheld the second objection of the USA based on its interpretation in accordance with the Treaty’s object and purpose and also its finding in “Immunities and Criminal Proceedings Case” and “Oil Platforms Case”. In contrary to ICJ’s opinion, a logical relationship can be seen between the object and the purpose of the Treaty and the provisions which have been mentioned by Iran. Such a conclusion could be reached by analogy and deductive method as well as analysis of the separate opinions of judges.https://lawresearchmagazine.sbu.ac.ir/article_101200_2826a8078149f92472f57e903766a1b3.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121The Feasibility of Relying on No- Harm (La Zarar) Rule as a Basis for the Option of Deception
(Emphasizing the No-Harm (La Zarar) Involvement in the Absent Affairs)The Feasibility of Relying on No- Harm (La Zarar) Rule as a Basis for the Option of Deception
(Emphasizing the No-Harm (La Zarar) Involvement in the Absent Affairs)18720310160410.29252/jlr.2021.184105.1407FAMostafaSharifiPh.D. student of Ferdowsi UniversityMohammad TaghiGhaboli DorafshanAssociate Professor of jurisprudence, Ferdowsi UniversityMohammad RezaElmi SolaAssociate Professor of jurisprudence, Ferdowsi UniversityJournal Article20190703One of the most important positive arguments in the legitimacy of the option of deception is to adhere to the “<em>La Zarar</em>” rule. The correctness of citing “<em>La Zarar</em><em>”</em> in this issue is based on “<em>La Zarar</em>” comprising non-existential decrees (absent affairs), which has been the subject of controversy among the opinions of Imamiye jurists. The necessity of the discussion is that, assuming the proof of the rule in non-existential decrees (absent affairs). This capacity can be used to answer various jurisprudential issues and challenges. Therefore, the present article in a descriptive-analytical study has re-read the jurisprudential arguments and documents and while examining the possibility of invoking harm in order to legitimize the option of deception, has analyzed and criticized various opinions in the field of proving this rule.One of the most important positive arguments in the legitimacy of the option of deception is to adhere to the “<em>La Zarar</em>” rule. The correctness of citing “<em>La Zarar</em><em>”</em> in this issue is based on “<em>La Zarar</em>” comprising non-existential decrees (absent affairs), which has been the subject of controversy among the opinions of Imamiye jurists. The necessity of the discussion is that, assuming the proof of the rule in non-existential decrees (absent affairs). This capacity can be used to answer various jurisprudential issues and challenges. Therefore, the present article in a descriptive-analytical study has re-read the jurisprudential arguments and documents and while examining the possibility of invoking harm in order to legitimize the option of deception, has analyzed and criticized various opinions in the field of proving this rule.https://lawresearchmagazine.sbu.ac.ir/article_101604_1430e63c407f1cd6e978997f980d3b7e.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Examining the Feasibility of Proceeding Rights to Rescission in Quasi-Irrevocable ContractsExamining the Feasibility of Proceeding Rights to Rescission in Quasi-Irrevocable Contracts21523210182110.29252/jlr.2021.170989.1338FASamMohammadiAssociate professor in private Law department of mazandaran universityHivaAbdolkarimiFaculty of Law at Shahid Beheshti UniversityJournal Article20190302The Jurists and the lawyers allocated the right to rescission- that it is a rule of general contract law - to the irrevocable contract. This means that legal acts lacking in “contractual " and " irrevocable " characteristics do not entail the right to rescission. The adherent of the opinion has provided reasons to prove and strengthen their approach which has been accepted by the majority of the scholars. On the other hand, a group of jurists and lawyers has argued that the right to rescission in revocable contracts shall not be impossible or unlikely. This group has given reasons for their opinion. This article is an attempt to understand whether the right to rescission is applicable to revocable and even quasi-irrevocable contracts. It will review, analyze and examine the mainstream reasoning while considering the counter-arguments <br /><br />This article is an attempt to understand whether the right of rescission is applicable to revocable and even quasi-irrevocable contracts. It will review, analyze and examine the mainstream reasonings while considering the counter-arguments . <br /><br /><br /><br /><br />The Jurists and the lawyers allocated the right to rescission- that it is a rule of general contract law - to the irrevocable contract. This means that legal acts lacking in “contractual " and " irrevocable " characteristics do not entail the right to rescission. The adherent of the opinion has provided reasons to prove and strengthen their approach which has been accepted by the majority of the scholars. On the other hand, a group of jurists and lawyers has argued that the right to rescission in revocable contracts shall not be impossible or unlikely. This group has given reasons for their opinion. This article is an attempt to understand whether the right to rescission is applicable to revocable and even quasi-irrevocable contracts. It will review, analyze and examine the mainstream reasoning while considering the counter-arguments <br /><br />This article is an attempt to understand whether the right of rescission is applicable to revocable and even quasi-irrevocable contracts. It will review, analyze and examine the mainstream reasonings while considering the counter-arguments . <br /><br /><br /><br /><br />https://lawresearchmagazine.sbu.ac.ir/article_101821_2fd0adbb9d593da8778468e545c96cde.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Comparative Study on the Test and Time of Implementing of Vertical Ne Bis in Idem Rule in the International Criminal Court and TribunalsComparative Study on the Test and Time of Implementing of Vertical Ne Bis in Idem Rule in the International Criminal Court and Tribunals24125610193810.29252/jlr.2021.165284.1305FAMojtabaJanipourAssociate Professor of Law, University of Guilan,MahinSobhaniAssistant Professor of Law, University of GuilanJournal Article20190618With the advent of international criminal courts and tribunals, there are <em>ne bis in idem </em>provisions that restrict both the international and national courts in conducting subsequent prosecutions.<em> Ne bis in idem </em>rule can apply both horizontally and vertically. However, the function of the latter is to adjust the relationship between international courts and national courts. The vertical <em>ne bis in idem </em>effect include both "downward" and "upward" levels. The content and scope of the rule are not uniformly defined. In particular, ways to interpret the two decisive factors ‘Idem’ and ‘Bis’ vary considerably. In the interpretation of the term “Idem”, there is ambiguity as to what stage former prosecution should be taken place in order to prevent a new prosecution. Another ambiguity relates to the term “Bis”; In fact, what the Bis is and in which circumstances second prosecution is double prosecution. Response to that depends on the test that is used by the court: the same conduct test or the same offense test. This paper by examining statutes and case law of international criminal courts and tribunals concludes that former prosecution had to give rise to conviction or acquittal to prevent a new trial. Depending on the upward or downward vertical Ne Bis in Idem rule, application of both tests is possible.With the advent of international criminal courts and tribunals, there are <em>ne bis in idem </em>provisions that restrict both the international and national courts in conducting subsequent prosecutions.<em> Ne bis in idem </em>rule can apply both horizontally and vertically. However, the function of the latter is to adjust the relationship between international courts and national courts. The vertical <em>ne bis in idem </em>effect include both "downward" and "upward" levels. The content and scope of the rule are not uniformly defined. In particular, ways to interpret the two decisive factors ‘Idem’ and ‘Bis’ vary considerably. In the interpretation of the term “Idem”, there is ambiguity as to what stage former prosecution should be taken place in order to prevent a new prosecution. Another ambiguity relates to the term “Bis”; In fact, what the Bis is and in which circumstances second prosecution is double prosecution. Response to that depends on the test that is used by the court: the same conduct test or the same offense test. This paper by examining statutes and case law of international criminal courts and tribunals concludes that former prosecution had to give rise to conviction or acquittal to prevent a new trial. Depending on the upward or downward vertical Ne Bis in Idem rule, application of both tests is possible.https://lawresearchmagazine.sbu.ac.ir/article_101938_289b6807c6794d42a80f179c15cfd060.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121"Religious and Political Figures (Rijal)" as a Dominant Clause in Principle 115 of the Constitution of the Islamic Republic of Iran"Religious and Political Figures (Rijal)" as a Dominant Clause in Principle 115 of the Constitution of the Islamic Republic of Iran26529010114610.29252/jlr.2021.220896.1870FAMahdiMovahedi MohebAssociate Professor of Islamic law in Semnan University, Semnan, Iran.Journal Article20210310According to the first part of Article 115 of the Constitution of the Islamic Republic of Iran, the President must be elected from among the qualified religious and political figures (Rijal). The question that arises when interpreting this principle is, firstly: does the word man mean only the masculine gender or both sexes? According to the second possibility, the figures (Rijal) will be religious and political, not necessarily male. But according to the first one, which is also confirmed by the principle of Haghighat, we believe that the meaning of this word is related to the current adjective, therefore, it has no effect on the necessity of being a presidential candidate. Finally, assuming that the meaning of the word man remains obscure, in more than one definite case, the practical principle prevails, the result of which is the license of the women's presidency. This article, while studying the process of approving of this principle, by analyzing the current adjective and matching it with the words in the phrase "religious and political man", has analyzed the meaning of this principle from the perspective of knowledge of the principles of jurisprudence.According to the first part of Article 115 of the Constitution of the Islamic Republic of Iran, the President must be elected from among the qualified religious and political figures (Rijal). The question that arises when interpreting this principle is, firstly: does the word man mean only the masculine gender or both sexes? According to the second possibility, the figures (Rijal) will be religious and political, not necessarily male. But according to the first one, which is also confirmed by the principle of Haghighat, we believe that the meaning of this word is related to the current adjective, therefore, it has no effect on the necessity of being a presidential candidate. Finally, assuming that the meaning of the word man remains obscure, in more than one definite case, the practical principle prevails, the result of which is the license of the women's presidency. This article, while studying the process of approving of this principle, by analyzing the current adjective and matching it with the words in the phrase "religious and political man", has analyzed the meaning of this principle from the perspective of knowledge of the principles of jurisprudence.https://lawresearchmagazine.sbu.ac.ir/article_101146_aa8c9f33a4d317a3353362c874e778f0.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Withdrawal from the Consensual Divorce
(Analytical Review of the Family Protection Laws Approved in 1974 and 2012)Withdrawal from the Consensual Divorce
(Analytical Review of the Family Protection Laws Approved in 1974 and 2012)2913089419010.22034/jlr.2020.185290.1710FAAlirezaAlipanahShahid Beheshti University/Law FacultyJavadPiriprivate law, faculty of law, shahid beheshti uinversity, tehran, iranFaezeKavousiSbuJournal Article20200831Divorce, as one of the most important social harms to the family institution, has existed in various forms. Among the various forms of divorce, consensual divorce has received the most attention because of its relatively simple and short process. In consensual divorce, couples agree on financial and non-financial matters and by obtaining the certificate of incompatibility, provides the ground for divorce. However, couples may withdraw from the divorce before or after issuing the certificate. Because of the prevalence of consensual divorce, it is necessary to examine the possibility or impossibility of the couples to withdraw from the divorce, before or after issuing the said certificate. In general, it seems that in the current legal situation, if the withdrawal from the consensual divorce is before issuing the certificate, the withdrawal with the will of either couple, eliminates the grounds for issuing the certificate. If the withdrawal from the consensual divorce is after issuing the certificate, it seems that 1) the withdrawal of the husband, eliminates the enforceability of the certificate; unless the wife has an irrevocable mandate in the execution of divorce. 2) The withdrawal of the wife has no effect on the enforceability of the certificate. 3) the withdrawal by the joint will of the couples is irrelevant because of the main role of the husband's will in eliminating the enforceability of the certificate; unless the wife has an irrevocable mandate in the execution of divorce, in which, the withdrawal by the joint will of the couples will be considerable.Divorce, as one of the most important social harms to the family institution, has existed in various forms. Among the various forms of divorce, consensual divorce has received the most attention because of its relatively simple and short process. In consensual divorce, couples agree on financial and non-financial matters and by obtaining the certificate of incompatibility, provides the ground for divorce. However, couples may withdraw from the divorce before or after issuing the certificate. Because of the prevalence of consensual divorce, it is necessary to examine the possibility or impossibility of the couples to withdraw from the divorce, before or after issuing the said certificate. In general, it seems that in the current legal situation, if the withdrawal from the consensual divorce is before issuing the certificate, the withdrawal with the will of either couple, eliminates the grounds for issuing the certificate. If the withdrawal from the consensual divorce is after issuing the certificate, it seems that 1) the withdrawal of the husband, eliminates the enforceability of the certificate; unless the wife has an irrevocable mandate in the execution of divorce. 2) The withdrawal of the wife has no effect on the enforceability of the certificate. 3) the withdrawal by the joint will of the couples is irrelevant because of the main role of the husband's will in eliminating the enforceability of the certificate; unless the wife has an irrevocable mandate in the execution of divorce, in which, the withdrawal by the joint will of the couples will be considerable.https://lawresearchmagazine.sbu.ac.ir/article_94190_e60f33dd4f47ac56f77c7db01f41704e.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121The Positive Nature of Data Messages as a Litigation’s EvidenceThe Positive Nature of Data Messages as a Litigation’s Evidence3093368763010.22034/jlr.2020.151644.1255FAAbbasMirshekariAssistant Professor at Tehran UniversitySaberAlaeiStudent of Tehran University of Science and CultureJournal Article20181023Today, one of the most commonly reason uses in the claims, is electronic evidence. Due to being new this form of reasons, comes to mind the question that whether these types of reasons are new, or the template and form for the reasons proof of existence (in Article 1285 of Civil Law). If you choose the second assumption, again this question arises that this type of electronic message used in the claim, the form and template what type reason (whether it is a circumstantial evidence or a document and so on) is. By investigating in the legal texts and examining the types of data messages, it can be argued that electronic reasons are essentially as a template and form of the reasons proof of existence that can be regarded as a document or a circumstantial evidence unless in particular non-documentary reliable data messages (such as recorded sound in a black box of aircraft) that are not in template of the reasons proof of existence. That is, the new reason with its own specific proof burden, while not considered as a document, because of a reliable electronic record is not doubtful and undeniable.Today, one of the most commonly reason uses in the claims, is electronic evidence. Due to being new this form of reasons, comes to mind the question that whether these types of reasons are new, or the template and form for the reasons proof of existence (in Article 1285 of Civil Law). If you choose the second assumption, again this question arises that this type of electronic message used in the claim, the form and template what type reason (whether it is a circumstantial evidence or a document and so on) is. By investigating in the legal texts and examining the types of data messages, it can be argued that electronic reasons are essentially as a template and form of the reasons proof of existence that can be regarded as a document or a circumstantial evidence unless in particular non-documentary reliable data messages (such as recorded sound in a black box of aircraft) that are not in template of the reasons proof of existence. That is, the new reason with its own specific proof burden, while not considered as a document, because of a reliable electronic record is not doubtful and undeniable.https://lawresearchmagazine.sbu.ac.ir/article_87630_80d6a9c7d3e992028df2c346b80f3f5e.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121Discernment Authority for the Constitutionality of the Leadership Assembly of Experts’ RegulationsDiscernment Authority for the Constitutionality of the Leadership Assembly of Experts’ Regulations3363599419610.22034/jlr.2020.184609.1526FAOmidShirzadAssistant Prof , Department of Law and Political Science, Yazd UniversityJournal Article20200109The leadership experts’ assembly is one of the elements of the Islamic Republic of Iran’s state that the selection and observance of the leader are in its jurisdictions. In spite of the existence of legal-religious research about this jurisdiction, the research about the regulations of this organization and the manner to control them is rare. This paper is written to analyze the discernment authority for the constitutionality of this assembly’s regulations: containing political decisions, elections code, and other norms. With study the sources of Iran’s public law system, all of the regulations enacted by this assembly are uncontrollable. This situation is conflicted with public law values suchlike the priority of the constitution, hierarchical order between legal norms, and the necessity of control of public organizations, and the writer has presented remedies for dissolving this problem.The leadership experts’ assembly is one of the elements of the Islamic Republic of Iran’s state that the selection and observance of the leader are in its jurisdictions. In spite of the existence of legal-religious research about this jurisdiction, the research about the regulations of this organization and the manner to control them is rare. This paper is written to analyze the discernment authority for the constitutionality of this assembly’s regulations: containing political decisions, elections code, and other norms. With study the sources of Iran’s public law system, all of the regulations enacted by this assembly are uncontrollable. This situation is conflicted with public law values suchlike the priority of the constitution, hierarchical order between legal norms, and the necessity of control of public organizations, and the writer has presented remedies for dissolving this problem.https://lawresearchmagazine.sbu.ac.ir/article_94196_d4dc2c5fa7a38d21be16df86cb6f79c0.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121An Investigation on the Conflict of Interests of Bank Shareholders Using the Corporate Governance ApproachAn Investigation on the Conflict of Interests of Bank Shareholders Using the Corporate Governance Approach36038710130210.29252/jlr.2021.185115.1659FAZeynabNavabi MoghadamPrivate Law of Islamic Azad University, North Tehran BranchAliZareProfessor assistant of private Law department, law and political science faculty, Science and research of Islamic Azad UniversityAhmadYousefi SadeghlooFaculty of Law, Islamic Azad University, Science and Research Branch, TehranJafarJamaliFaculty of Law, Islamic Azad University, Tehran Electronic BranchJournal Article20200718Private Banks are established in Iran with the legal nature of public joint-stock companies and public joint stock cooperatives. Therefore, the realization of conflict of interests is inevitable in its nature. This problem must be treated otherwise, it will not be long before the business falls into a state of stagnation and eventual liquidation. This paper seeks to identify the types of conflict of interest that may arise between major shareholders, managers and other stakeholders. The special legal relationship that exists between managers and shareholders is one of the most important causes of conflict of interest, known as the agency crisis. But a good solution must be able to resolve these conflicts and achieve the specific goals of the banks in this way. Corporate governance has been suggested as the most appropriate solution for this purpose. Examining the corporate governance, it was found that this governing body can cover the supervision more confidently with tools such as self-supervisory or other supervisory, by creating audit committees from inside or outside the bank and also by adding non-executive managers from outside the company. In this way, it will help to resolve these conflicts in private banks.Private Banks are established in Iran with the legal nature of public joint-stock companies and public joint stock cooperatives. Therefore, the realization of conflict of interests is inevitable in its nature. This problem must be treated otherwise, it will not be long before the business falls into a state of stagnation and eventual liquidation. This paper seeks to identify the types of conflict of interest that may arise between major shareholders, managers and other stakeholders. The special legal relationship that exists between managers and shareholders is one of the most important causes of conflict of interest, known as the agency crisis. But a good solution must be able to resolve these conflicts and achieve the specific goals of the banks in this way. Corporate governance has been suggested as the most appropriate solution for this purpose. Examining the corporate governance, it was found that this governing body can cover the supervision more confidently with tools such as self-supervisory or other supervisory, by creating audit committees from inside or outside the bank and also by adding non-executive managers from outside the company. In this way, it will help to resolve these conflicts in private banks.https://lawresearchmagazine.sbu.ac.ir/article_101302_1014480fa9fd4c9edf5c05dfe2a8d8f5.pdfShahid Beheshti UniversityLegal Research Quarterly1024-0772249620220121The Feasibility of Judicial Review on the Administrative Error of Fact in the Iranian Administrative Law; A Comparative Approach to the Legal System of the United Kingdom and FranceThe Feasibility of Judicial Review on the Administrative Error of Fact in the Iranian Administrative Law; A Comparative Approach to the Legal System of the United Kingdom and France37741510164510.29252/jlr.2021.184078.1398FAFatemehAfshariAssistant Professor of Law, Judiciary Research InstituteJournal Article20190922The error of the administrative authority is one of the causes of the judicial review under the heading of "illegality"and also in the circle of the concept of "ultravires".One kind of errors is error of fact,which means that the official has been mistaken in identifying the issue of compliance with legal grounds.Under UK law,courts are more involved in supervising cases because they believe that the court often has expertise to identify and They do not determine the status of the subject and only the jurisdictional error are reviewable.But in the new approach,if there is an“objective right answer”and an“manifest error of fact”is made,it is reviewable whether it is jurisdiction or non-jurisdiction error.<br /><br />
The error of the administrative authority is one of the causes of the judicial review under the heading of "illegality" and also in the circle of the concept of "ultra vires". One of the errors is the error of fact, which means that the official has been mistaken in identifying the issue of compliance with legal grounds. Under UK law, courts are more involved in supervising cases because they believe that the court often has the expertise to identify and they do not determine the status of the subject and only the jurisdictional error are reviewable. But in the new approach, if there is an “objective right answer” and a “manifest error of fact”, it is reviewable whether it is a jurisdictional or non-jurisdictional error. In the French legal system, all types of error of law, including mistakes in the material basis of the subject, compliance with the lawfulness of the law, and the lack of proportionality between the object of the decision and the issue, are reviewable. In the Iranian law, due to the lack of recognition of the error concept in administrative law of Iran and its definition in the laws, in the judicial review of the administrative court, there is no annulment of the resolution simply because of the error of the administrative office, and also the explicit decision based on the mistake of the administrative office among the votes there are no AJC Divisions. It seems likely that a thorough legal doctrine based on British and French law and jurisprudential texts would provide grounds for amending the law of the Court and the possibility of administrative courts appearing on the basis of error.The error of the administrative authority is one of the causes of the judicial review under the heading of "illegality"and also in the circle of the concept of "ultravires".One kind of errors is error of fact,which means that the official has been mistaken in identifying the issue of compliance with legal grounds.Under UK law,courts are more involved in supervising cases because they believe that the court often has expertise to identify and They do not determine the status of the subject and only the jurisdictional error are reviewable.But in the new approach,if there is an“objective right answer”and an“manifest error of fact”is made,it is reviewable whether it is jurisdiction or non-jurisdiction error.<br /><br />
The error of the administrative authority is one of the causes of the judicial review under the heading of "illegality" and also in the circle of the concept of "ultra vires". One of the errors is the error of fact, which means that the official has been mistaken in identifying the issue of compliance with legal grounds. Under UK law, courts are more involved in supervising cases because they believe that the court often has the expertise to identify and they do not determine the status of the subject and only the jurisdictional error are reviewable. But in the new approach, if there is an “objective right answer” and a “manifest error of fact”, it is reviewable whether it is a jurisdictional or non-jurisdictional error. In the French legal system, all types of error of law, including mistakes in the material basis of the subject, compliance with the lawfulness of the law, and the lack of proportionality between the object of the decision and the issue, are reviewable. In the Iranian law, due to the lack of recognition of the error concept in administrative law of Iran and its definition in the laws, in the judicial review of the administrative court, there is no annulment of the resolution simply because of the error of the administrative office, and also the explicit decision based on the mistake of the administrative office among the votes there are no AJC Divisions. It seems likely that a thorough legal doctrine based on British and French law and jurisprudential texts would provide grounds for amending the law of the Court and the possibility of administrative courts appearing on the basis of error.https://lawresearchmagazine.sbu.ac.ir/article_101645_6d8883844dfd377964c3e9fa27369738.pdf