نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 11 (پاییز و زمستان 1394)

Legitimate defense is cited as a justificatory condition if the existence of multiple conditions can be ascertained, including imminence of attack as well as the necessity and proportionality of the defensive action, thus permitting the apparently criminal behavior. However, individuals in certain cases might resort to specific defensive instruments and tools, i.e. the human traps, such as booby traps, digging wells inside their houses, or keeping guard dogs, in an effort to defend their rights against possible aggressions. As a result of using such devices, the persons venturing into such places might be harmed or injured. The legitimacy of such actions per se as well as the responsibility of the injuries they might cause requires legal scrutiny. In the present article, we investigated this subject with due regard to the relevant statutes as well as Jurisprudential bases and concluded that deploying such devices by the defender in the land which has right of possession is per se not legally prohibited, provided that such devices are not outside what is regarded as customary. However, the perpetrator shall be responsible for any injuries and damages resulting from using such devices unless it can be proved (through establishing the relevant conditions such as necessity of the action) that such injuries and damages were inflicted in self defense. In this regard, a comparative study with other legal systems was also conducted.

Deterrence is one of the main functions of tort law. Presence of insurance weakened that function and raised carelessness because the compensation by insurer not only does not deter injurer, but also may encourage him/her or others to carelessness. This impact of insurance is named ''moral hazard''. Although insurers have some instruments to reduce moral hazard, but for competition reasons, insurers use them less, but if the management would be true, moral hazard will be reduced, and as a result, the deterrence of tort law will be reinforced. Iranian Act of Compulsory Insurance for Loss of Third Party in Traffic Accident of Vehicles 2016 provided some instruments for reduction of moral hazard that includes maintaining of liability of negligent driver with insurance coverage, to consider insurer as a successor of negligent driver and determining premiums on the basis of experience rating. That instruments increase efficiency of tort law and if would be enforced truly, will lead to reduction in traffic accidents Rules of tort law impacts on its deterrence and incentives of buying policy by risk averse actors and accepting particular theory may led to reduction of deterrence and reduction or increase of welfare. For instance, acceptance of negligence rule and encouraging of injurer to buy policy will lead to increase of welfare and keep deterrence of tort law.

The Subject of this paper is a research about the limits of the privacy of the public authorities. The problem is whether protection of privacy, about the public authorities, can be the cause of limitation of the right to know and freedom of speech. This article is a normative, theoretical and consequences – oriented study that uses law codes, doctrine and related records. Our hypothesis is that the right to know is prior to the privacy. The results show that Iranian law system, in some cases, refused the privacy for the public authorities, and with the use of unity criteria, it is possible to extend it to other cases. Theoretically, inasmuch as the right to know is requisite for freedom of speech and democracy, it is prior to the privacy. Also, this article provides the triple processes that cover those goals, and allow the judge in case of lawsuit from the public authorities to answer this question: is that disclosure in the service of public interests or is it an undue curiosity about good performance of affairs? The Judge can use of the injunction for final caution in order to protect the right of alleged violation of privacy.

The International community officially paid attention to terrorism in early 1960s, in term of legal and international aspects of the issue, through ratifying the first-ever international convention in this regard, i.e, the Tokyo Convention (1963). By adopting resolution 3034 (1972), the UN General Assembly introduced the issue in the UN literature. Half a century after the first global attention to this phenomenon, and despite ratification and adoption of some 150 conventions and UN resolutions, international community still suffers from lack of a coherent legal approach in fighting terrorism. This article aims to analyze the evolution of terrorism in international legal instruments, and provide an assessment on the legal gaps and their implications on self-defence and fighting terrorism.

Prohibition of riba is one of the governing principles in Islamic law. Essence of prohibition is based on forbidding oppression and exploitation. Therefore, positions against getting excess of capital, both in past and now, have been controversial and have been tried at diverse frames including formation of exchange and facility agreement and avoiding this legal prohibition. Exchange and facility agreements are profitable contracts that can be formed in three groups of facility provided to condition of liability, condition of acquisition and condition of secondary joale. The essence of these three conditions is accompanied with regulations that make contract leave the usurious dimension and be give a non- usury dimension to the bank facility and justifies the benefit on the basis of legal and rational argumentation. This argumentation denotes the effect of time in mutation of price and involves condition of liability regarding capital and its execution. This research, in a descriptive and analytical manner, analyses this issue arguing the legal process of bank facilities and emphasizes the need of bank supervision to provide implementation in order to remove doubts from bank interest. It is stated that failure to supervise will cause two types of break of usury for banks: one, consolidation of bank monetary intermediation and the other, mere cash bonds profitable exchange.

Avarice in implementing right not only is morally reprehensible but the law also explicitly rejects it. However, the scope of implementing right has always been disputed, and often, we observe the formation of different legal decisions in this important area of tort law. Enacting articles 352 to 354 of the ex Penal Code represented the absolute liability of the owner of the right; it did not have any result except suspension in the time of friction with the other people’s right, which prompted criticism from legal writers and resulted in the nullity of the mentioned articles; writing and enacting of article 521 of the new Penal Code did not make things so clear. The present paper looks for the possibility of accumulating the newly enacted article of Penal Code with the article 132 of Civil Code in light of French lawyers and Shiite Faqihs' views. It also deals with the scope, conditions and enforcement of rights abuses. The basis of abuse of right in our law is article 132 of Civil Code but sometimes the right is strict, so we miss the sanction and sometimes it is relative.

Game theory is a branch of applied mathematics in which practical solution in strategies of each reactor has direct impact on other reactors decisions. Therefore, there is an interior dependence between reactors that have an influence on the result of the game. Game theory is actually meant to analyze players profit based on the game theory. The civil procedures game theory is to analyze the civil gamers' behavior. However, interchangeable factors such as either party's expectations from judicial system, their incomplete information, incompetent trial regularity as long as illogical motivations can misdirect the procedures of "choice of strategy" and lead to unwanted and unpleasant trial results. Civil games can be cooperative and uncooperative. In an uncooperative civil game theory each reactor's choice of strategy will be conservative which leads the result to be no predictable or "win-lose". On the contrary, through a cooperative civil game theory each gamer is aware of other gamer's procedures. Their information will be partly shared, so the results wil be predictable and "win-win." This article , focuses on the concept and the basis of the game theory and the effective factors on the game and types of civil procedure games along with a focus on cooperative game procedure.

In religious jurisprudence (Fegh), attestation has a significant value and when its qualifications are gathered, it is imposed on the judge. The judge is obliged to render judgment according to it and cannot deny it due to lack of continence. However, in law, the expression of article 241 of Civil Procedure Code (C.P.C.) has given rise to interpretations regarding judges' absolute authority in recognition of the value of testimonies. Such perception makes this article be recognized as contrary to religious law. Hence legal articles and article 241 (C.P.C) should be interpreted in a way that the doubt of contrast with religious law be removed. Here article 241 (C.P.C) can be regarded an article which recognizes the judges' authority in recognition of qualifications and value of witness.

Marriage that forms the basis of the family must be based on veracity of wife and husband and their relatives, but in some cases the two parties of marriage or relatives neglect the veracity and try to hide the truth or speak despite the truth that is called Tadlis (misrepresentation). Although Tadlis (misrepresentation) in selling causes termination based on the civil law, there is no legal command about misrepresentation in marriage, and we have legal lack in this case. In this study, there is an attempt to describe the meaning of tadlis from the point of view of jurisprudence and law and then to point out to territory of tadlis. Moreover, the conditions and effects of misrepresentation is studied and it is proved that for occurrence of misrepresentation there is no need to cheating and in some cases even not saying anything causes misrepresentation. Regarding the effects the injured party can ask for charge of misrepresentation in addition to the ability of terminating the contract and the misrepresentator will have criminal conviction in some cases.

The legal acts according to a popular view are of two types: Contract and Unilateral Act. The nature of many of legal acts is obvious, but there are still some differences of opinion on whether some of them such as absolute legacy and wages are contracts or unilateral acts. The origin of these differences of opinion is the plurality and differences of criteria to differentiate the contract from unilateral act. Generally, to distinguish these, four criteria can be found: (a) a legal act which is formed by two wills (which are dependent on the legal decree and the parties’ intent), and the contract or a legal act which is formed by an independent determination is called the unilateral act; (b) the transaction being signed by the proposing and accepting parties is called the contract, and if it is constituted only by the proposing party, it would be called the unilateral act; (c) if a legal act is related to the dignity of two people, it is the contract; otherwise, it is the unilateral act; (d) a legal act comprising all elements of the contract is called the contract, and if it is authorized only legally, it is called the unilateral act. The writer seek to prove the following points:(1) The legal acts are unique to contract and unilateral act, and there can be expected no third nature; (2) citing numerous arguments to show that the first criterion is the criterion for distinguishing contract from unilateral act.

The legal acts according to a popular view are of two types: Contract and Unilateral Act. The nature of many of legal acts is obvious, but there are still some differences of opinion on whether some of them such as absolute legacy and wages are contracts or unilateral acts. The origin of these differences of opinion is the plurality and differences of criteria to differentiate the contract from unilateral act. Generally, to distinguish these, four criteria can be found: (a) a legal act which is formed by two wills (which are dependent on the legal decree and the parties’ intent), and the contract or a legal act which is formed by an independent determination is called the unilateral act; (b) the transaction being signed by the proposing and accepting parties is called the contract, and if it is constituted only by the proposing party, it would be called the unilateral act; (c) if a legal act is related to the dignity of two people, it is the contract; otherwise, it is the unilateral act; (d) a legal act comprising all elements of the contract is called the contract, and if it is authorized only legally, it is called the unilateral act. The writer seek to prove the following points:(1) The legal acts are unique to contract and unilateral act, and there can be expected no third nature; (2) citing numerous arguments to show that the first criterion is the criterion for distinguishing contract from unilateral act.