فصلنامه مطالعات حقوق خصوصی
سال سی و هشتم شماره 3 (پاییز 1387)

The right to liberty and security of person, referred to Art.9 of the International Covenant on Civil and Political Rights (1966), which is one of the most significant human rights, has been protected specifically by the Human Rights Committee, as the monitoring body of the Covenant. According to the jurisprudence of the Human Rights Committee, the right to liberty and security of person, contains the right to security of person outside the context of formal deprivation of liberty, which makes it possible to interpret out of the framework of "physical limitations". The right to liberty and security of person include examples such as: the right to be informed of reasons of arrest and charges, and the right to be brought promptly before a judicial authority. These examples has been explicated in detail by the committee's views. This paper would try to offer a better understanding of the concept of liberty and security of person, in the light of the decisions taken by the committee as well as its General Comment No.8

When any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril, the property (ship and cargoes) involved in a common maritime adventure, The interests saved, are required to make contributions in general average to the owner of lost or damaged property. general average rules originates from ancient maritime customs and laws. In cours of time, these rules were involved in changes and adopted, gradually, in national statues. of course, for the reason of some differences of national maritime laws, that its consequences affected, in case of conflict of laws, the parties to the disputes, the uniform York- Antwerp rules, were adopted in international level. The rules have been amended periodically, the latest changes were agreed upon at Sydney in 1994. In practice, owing to special clauses in standard from contracts - principally bills of lading – general average is adjusted according to these rules.

Condition of guaranty against tenant is a prevalent order in rent contracts nowadays. Logically and profoundly it was be documented and peruse in juridical jurist believe to authenticity of it.Although it is not mention frankly in civil law, but itappear that view point of discomfit is accepted - unlike current judicial procedure - by consider in article 493 particularly and article 614 generally.In this research, proofs of discomfit is critiqued and rejected finally, and then through generality of the rule: Troth to condition and proof its inclusion into condition of guaranty against tenant, like wise by consider to custom and uptake of wisdom, the sight of recent jurists and masters of guaranty against tenant.

Different aspects of competition in stock exchanges have been discussed in the literature from either a positive or normative perspective but this paper seeks to come up with an approach encompassing both positive and normative dimensions of competition in various aspects of stock exchanges’ activities. As far as the positive nature of the securities market and industry is concerned, conflicting trends are emerging. The liberalization of securities markets and the disappearance of technical barriers have dismantled the monopoly of national stock exchanges but led to more consolidation. However, we are also witnessing a destabilizing and fragmenting effect of competition on these markets. Following an analysis of the importance of recognition of the normative/positive dichotomy in approaching competition in financial services, we discuss the centrality of information disclosure in creating competitive and stable financial markets. Disclosure of information, therefore, reinforces both competitive and prudential objectives alike. In further attempt, we discuss the tension between the principles of competition and prudence alongside the conflict between competition objectives and advantages in economies of scope and scale. While arguments in weighing the competition against economies of scope and scale are evenly balanced, the unique characteristics of such markets do not allow the absolute application of competition principles when it comes to prudential concerns.

The Islamic Penal Code of I.R. Iran mentioning to insanity and its degrees, requires briefly that They are playing obstacle role for considering a person as liable one. This brief speaking has been caused to different interpretations to the legal and psychiatric concepts of insanity. This Paper is going to review the interaction between these concepts.

The principle of party-disposition (or what is called “Le Principe Dispositif” in the French Law) is one of the Guiding Principles for Civil Trial. According to this Principle, the civil proceeding is regarded as the parties’s thing, so they can make any disposition on their proceeding, inter alia they are be able to commence and terminate it, determine the matters of fact and finally judge is bound to the parties’s motions. The effects and development of the Principle has greatly been considerable in so far as it has been presented as one of the common values of the world’s legal culture. For this reason, The Principles of Transnational Civil procedure – the common project of ALI & UNDROIT- has provided for this principle in it’s tenth Principle.

Article 167 in the constitution of the Islamic Republic of Iran states: "The judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment. "In this piece of writing the author raises questions concerning the effectiveness of article 167 and tries to show that although it appears to solve problems and counterbalance the absence of codified laws, a second glance reveals that the implementation of this article will encounter many obstacles.

The decision of Court and Public Prosecution in criminal matter has a absolute Res Judicats. The main conditions of Res Judicats (cause, object and person unity) become mooted in criminal law again, but criminal law is differ from civil law in this matter. In civil law, Res Judicats consider according to general conditions but criminal law can not consider upon those conditions. Many cases, specifically in ralations between abettors and accomplices, plurality of crimes and its descriptions necessitate another consideration that differ from civil law and its relativity.

Tax, as the most initial and most important public revenue, principally plays an important role in providing public expenses and for this purpose, it enjoys an extraordinarily higher place for all states in the world. In this way in tax laws that are currently enforced in all states including Iran, special rights and powers have been granted to tax organization in order to allow it to carry out fully well it’s tasks and liabilities in this enterprise. These rights and powers are called as ‘tax authority exercise’ Nevertheless, today emphases are more laid on the motivated involvement and co-operations from tax payers than exercising any authorities and rights of these kinds. the example of which is already followed by Iranian tax law outhorities. Farther consideration of the case as mentioned above show that tax is counted as one unique manifestation of a state’s sovereignty and is best mixed with its authoritative continued existence.

The topic is the theoretical approach to the state interference in limiting the freedom of contract in English law This paper tries to identify and discuss the key issues that arise in the design and application of state interference in limiting the freedom of contract. One of the main aims is to understand the basic principles of the state role and the reasons for interference in economy and, in particular, in contract.State intervention limits the scope of private law area and the public law elements gets dominant with this action to find of exact line between both areas of law is a crucial issue. In this paper theoretical analysis is carried out to examine the topic. This subject is given in three sections. In the first section a general view is briefly given about the reasons for the state interference in market. The second section discusses the legal measures that state takes to achieve the aims and in the third section the rationale underlying the stat interference in limiting the freedom of contract in contract law is examined. It has been found that the prevention of exploitation, which can remedy unfairness or inequalities, and to achieve distributional goal are the main aims of state interference. And all measures like some theoretical foundation of judicial interpretation and statutory interventions into private contract are designed to ensure substantive fairness in transactions. The recommendation is that in every contradiction among different interests and in order to design a clear line between private and public areas it should be given main role to the underlying policy of obligations. The underlying policy of the state interference justifies the limits on freedom of contract.

The main concern of this paper is to provide an analytic tool, as a heuristic device, in "rights domain". In this regard, Hohfeldian conceptual framework, from a methodological point of view, is introduced. This framework typifies rights and their logical, "correlatives" and "opposites". At first, The Structure of this framework is presented. Then, based Upon five criteria of: "duty holder", "focus of right activity", "right composition", "right weight" and "time order of right", an effort has been made to Upgrade analytic capability of this framework. In third section, application of this elaborated framework, concerning with the analysis of the structure of rights and their "elements" and "relations", in two areas of "child custody" and "Universal Declaration of Children Rights" is illustrated. Finally employment of this thinking tool in four area of "judicial", "legislative" and "legal inquiry" is briefly suggested.

One of the most important challenge facing international community and international criminal law is the increasing expansion of terrorist acts and operations which is a serious threat to international peace and security. This dreadful phenomenon usually occurs in organized forms transnationally. Threats caused by terrorism are more than individual offences and to encounter it effectively is inconceivable without regulating a legitimate international foundation and avoiding “Dual Standards” policy.

The short term imprisonments have been eliminated from the sentence system of many countries.It is said that since the objectives of sentences have not been met, the short term imprisonments have been eliminated.Many of Lawyers argue that lack of adequate opportunity for recognizing the personality of criminal (observation) and subsequently Lack of enough time for reform and resocializing the criminal, are main reasons for useless of such sentences.The legislator in our country has taken significant step in Line with the elimination of short term imprisonments by adopting the article 3 of the act for reception of some state incomes and their consumptions in specified cases.Some of our Lawyers believe that basically and generally by adoption of this article beyond its precedent, the short term imprisonments have been eliminated from the sentence system of our country. Some of them also believe that the said article 3, could not totally eliminate the short term imprisonments and only executing short term imprisonments have been prohibited in the specified cases by such article.

According to the Article 4(1) of the Charter of the United Nations four conditions (Stateness, Peace-Loving, Acceptance of the Obligations in the Charters Obligation) should be maintained for the admission of the new Members.Despite the express enunciation of these conditions and the confirmation of those conditions by the International Court of Justice (ICJ) in his Advisory Opinion on “The Conditions of Admission of a State in the United Nations “(1948), The U.N. practices has not always been compatible with the Article 4(1) of the Charter and it seems that the U.N. practices and decisions in this issue has generally been based on the political considerations.In this Paper, after examining the conditions of the new Members and analyzing the International Court of Justice Advisory Opinion in this matter, it will be finally focused on the question of compatibility of the admission of Israel to the dispositions of the Article 4(1) of the Charter of the United Nations

One of the methods of preventing crimes is ‘Situational prevention’ that is to design environment, change physical conditions and with controlling of environment and crime opportunities decreases the rate of crime in the society. Some of these ways concentrates on environmental changes, control of criminals and supporting weak victims and taking care of crime targets.Since development of civilization and cities has made new problems of crimes and increased criminality, so it is nessesary to investigate provided situations and conditions in cities for criminals and criminality to change and decrease them. Special characteristics of city societies like accumulation of population, control lessing, cultural disharmony, architectural methods of making cities and bulding policy affecting on dangerous place situations and using of local abilities in prevention of crimes, are subjects that discussed here about them.

The court has been adopted a true decision but the way to reach of and the basis of the said desicion is vulnerable. This is why there is a shadow of doubt if paragraphes "b" and "c" of article 206 of Islamic penal code are considered as "intentional action".Therefore the method of distinction between murder and manslaughter is not depicted correctly. Futhermore amending of mentioned article seems to be necessary.

The principle of freedom of contract is conceptually narrower than the will theory and as such it does not deny the state the right to put limits on contracts between individuals. On this ground some measures have been taking to strike a balance between the interests of the consumers and the producers. Among these measures are the compulsory sales to consumers in the case law and on the basis of public order. This particularly true in the case of producer having monopoly over one product which is needed by the public order. The supply of such a product is then considered as public good and subject to public order. In this lecture we seek to examine such a trend in the case law in Iran.