فصلنامه مطالعات حقوقی
سال پانزدهم شماره 1 (بهار 1402)

Until the enactment of the Public Procurement Law, disputes over tenders were heard in public courts. Nevertheless, the law placed litigation between the tenderer and the contracting authorities within the jurisdiction of the procurement complaints’ committee of trial. Indubitably, the establishment of this committee is a positive step due to the simple, free and specialized proceedings of this committee towards public courts. Nonetheless, the committee’s procedural rules suffer from some defects in terms of the principles of a fair trial, which could impugn its performance. If the trial's purpose is to realize the right, then the way to reach the right shall be just. Otherwise, the trial is rendered futile, whether it is held in a court or in a tribunal-like entity. The findings of the present study indicate that principles such as the right to litigation, impartiality, access to verdicts and having a lawyer are not observed in such committees. Litigation is subject to the opinion of the chairman of the contracting authority, most of the members of the committee are officials of the executive branch, the board's verdicts are not published and the right to have a lawyer is not stipulated in the committee’s charter. Ergo, the pertinent laws and regulations as well as the procedure of the aforementioned committees should be amended.

Based on Articles 71 and 72 of the Constitution, the Islamic Consultative Assembly has the general legislative power within the framework of the provisions of the official religion of the country and the principles of the Constitution.Therefore, it is conceivable that the subjects to be legislated cover a wide range of social concepts and institutions for which there is no direct provision in the constitution. The existence of such an issue makes it difficult to determine the inconsistency of parliamentary resolutions with the constitution within the silence of this law.The present study is based on analytical method and using library resources to find the answer to the question "What are the criteria for legislation or the role of the Islamic Consultative Assembly in cases of constitutional silence?" and "How well these rules have been followed in the practice of the guardian Council."The findings showed that in general, the two criteria "rules that protect the rights and freedoms of individuals should not be weakened" and "the balance in the rules of organizing public forces should not be disturbed" can be used to measure parliamentary approvals in the field of constitutional silence.

In the importance of the environment, it is enough that Article 50 of the Constitution states that the growing life of today and tomorrow depends on its preservation. A strong form of support for this divine gift is the application of criminal measures against its destructive behaviors. The need has also been felt in international sources, including the Stockholm Declaration and the Strasbourg Convention. In this regard, the Iranian penal system has established significant regulations over time and each time in the dimension of "criminalization" and punishment. The intensity of this effort can be seen in the corruption of the filial pity of the widespread distribution of dangerous toxic and microbial substances by Article (286) of the Islamic Penal Code. The findings of this research, which is a descriptive-analytical method and a library data collection tool, show that there are also flaws in the current penal policy, the open face of which is The non-criminalization of some environmentally threatening behaviors, the limitation of the authority of non-governmental organizations to protect the environment, the lack of criminal responsibility of the government for violating this divine gift, and the lack of guarantee guarantee the execution of fines for most crimes in this realm.

The increasing growth of transnational corporations and their profound effects on the human life requires an appropriate and effective legal system. In this regard, the issue of remedy for human rights violations, committed by these companies is one of the serious challenges in the international and domestic legal system. On the one hand, despite the international nature of transnational corporations, the international liability of transnational corporations has yet to be defined in inetrantional human right law. On the other hand, due to the complex and transnational structure of these companies, there are serious challenges and obstacles in establishing civil liability in the domestic system for the damages caused by the harmful activities of these companies. This article aims to analyze the incompatibility between the traditional elements of civil liability with the complex structures of transnational corporations, therefore to answer the question of how the remedy can be provided in case of violation of human rights committed by transnational corporations. Can the extension of the traditional elements of civil liability in a fuzzy logic, adapt the civil liability mechanism to the needs of complex structures of transnational corporations, or should we seek remedy in a mechanism beyond civil liability?

Obligations of the type of legal duties are stated for the lawyer and not contractual obligations that can be requested to be fulfilled. Among these duties are observing the interests of the client and not exceeding the limits of the granting authority mentioned by the legislator in Article 667 of the Civil Code. In this study, we seek to investigate whether the action of the attorney within the given authority is the same as the observance of the client's interest or that each of the permission and interest is different from the other and acting on each of them prevents the attorney from doing the case? In other words, is there unity or discretion between permission and interest? After researching the law books and the writings of the jurists, the authors came to the conclusion that permission (authority) and interest are not the same and each is different from the other, and the attorney should do each of these within each other. Also, by drawing the scope of interest, it became clear that by accepting the theory of multiplicity, the guarantee of non-observance of interest is not more than one case and there is no need to express the three assumptions that exist in legal writings.

Classification of negligence into different levels, is a complex legal issue. Therefore, some commentators have entirely rejected its multi-layered nature and some others have identified its different levels. In an attempt to make sense of the nature of negligence, we have put foreward a new thesis. We have adopted a dualist approach in identification of the nature of negligence in the sense that while in principle resort should be made to subjective criteria in making sense of negligence, one must also take objective criteria into account. Accordingly, one faces instances where negligence is not of an ordinary nature nor an intentional one. In said instances, law confers certain effects on the acts commited. For instance, under Iranian Penal Code and Insurance Code, binging and excessive drug use entail consequences such as coupled damages and claims made by insurers for refund.

There is a disagreement between lawyers in Iranian and American law with respect to conditionality or preventiveness of fault in contract liability. Therefore, the question is raised whether fault basically contributes to contract liability or not? Those who believe in preventiveness of fault state that since there is no reference to fault in Iranian law, thus the obligor is liable as soon as he fails to fulfil the obligation and some American lawyers state that a contract is a choice between obligation fulfillment and damage payment; therefore they conclude that fault has no place in contracts and is considered as a "preventive factor". However, it seems that fault has a conditional state because its contribution to contract liability prevents contract breaches, creates a fair relationship between the parties and encourages confronting damages to increase benefits for both parties to the contract. The aim of present comparative study is to analyze conditionality or preventiveness of fault together with analysis of related opinions using a descriptive-analytical methodology and the main research question is that whether fault in contract law is a condition to creation of contract liability or prevent it? The hypothesis of present study argues for conditionality of fault and its multiple consequences.

According to the rule of contributory negligence the extent of victim`s involvement will reduce the amount of tortfeasor`s liability. When victim be a minor person and his or her action along with the third party’s harmful action cause damage, the question is can still apply the rule of contributory negligence? And as a result the rule of contributory negligence reduces the scope of tortfeasor`s liablity? In Iran law, given the silence of law and judicial practice, the answer to the question on the basis of general rules is positive. In England law, both in the judiciary and in parliament, this issue has been considered independently and there are interesting discussions in this regard. However, as a general rule it can be said that under the Common Causes of Reform Act of contributory negligence 1945, generally every person, both minor and major, is subject to contributory negligence and as a result is divided into liability. However, research shows that, on the one hand, in order to distinguish minor`s negligence, rather than objectively and specifically the factor of age, to avoiding of unfair consequences must consider subjective criteria, such as the extent of his or her understanding and experience. .

Waste minimization is the first process of waste management hierarchy which requires various legal mechanisms to minimize the amounts of produced wastes. The main question of this article is whether are there appropriate legal mechanisms for waste prevention in Iran’s environmental law or not and what are the legal challenges in this field? This article based on a descriptive and analytical method, exercises the legal challenges and lacunas in minimization of waste in three stages of waste generation: production, supply and consumption of the products. The study explores the deficits of the Waste Management Act of Iran and other production laws in this regard. Finally, it concludes that the lack of appropriate obligatory, voluntary and accelerative instruments for prevention of waste production, will undermine the waste management system in Iran and so taking necessary legal devices for waste prevention is demanded.

The main issue of this research is to explain the moral right and examine the ratio of legal right and moral right with emphasis on the citizenship rights system. While examining the moral foundation of rights from the perspective of Kant and natural right, we take this question into account that How can we move towards the realization of a kind of ethicism in the field of citizenship based on the explanation of jurisprudence and provide more effective implementation of legal approaches so that citizens feel obligated to obey the law not obliged to obey the law. findings of this study, which have been collected in a descriptive and analytical manner, despite emphasizing the existence of a moral right, believes that people align their behavior with the rule only when they consider the moral model as a behavioral standard. Therefor the hypothesis of this research indicates that with considering the citizenship rights as moral rights, according to approved internal values, legal norms will be accepted cause its consistency with ethics which leads to the replacement of obligation concept with compulsion to obey the law and improves the relationship between citizen and government.

The conflict of justice and freedom is as old as contractual law. Despite the controversy over the justice protection and to restrict freewill , for many years, freedom of contract dominated the path to the interest of individuals and distributive justice in the community. But, over time, the economic relations of societies, shook the assumption of freewill. The scope of the application of standard contract, more than other contracts, is based on the justification of parties freewill in using these forms and of course, saving time, costs and having a superior position in imposing contractual terms. Abuse of this freewill, justifies the restriction of this principle and tendency to observe contractual justice as well. Lack of freewill in contracting parties, inequality of transaction power and market failure, are the main reasons for tendency toward controlling standard contracts. the author, in addition to comparative review of these reasons, tries to evaluate their importance regarding to the available criticism.

The Pahlavi era is the era of the establishment of criminal modernism.The Pahlavi government in this period accepted the validity of the Shari'a rulings to a minimum, but what is evident is that the government, after consolidating the foundations of its power, removed the validity of the Shari'a rulings from the text of the criminal law. The discourse of "criminal modernism" in this era, by rejecting the discourse axes of "sharia punishment", seeks to strengthen its foothold in the context of the developments of punishment in this period. The introduction of modern philosophical teachings and criminal law, the impact of new achievements in criminology and the legal system of France and the role of the "royal punishment" discourse in establishing the power and foundations of the Pahlavi government can be the most important factors influencing the evolution of punishment.The questions raised about the punishments of this age are, firstly, what discourses have been present in the context of the developments of punishment in this age, and secondly, what have been the effective factors and the role of these factors in the power of these discourses.The main issue of the research is to explain the role and effect of the present discourses in the context of the developments of punishment in the Pahlavi era. The researchers use Practical Discourse Analysis Method

The right to water is one of the economic, social and cultural rights that have been approved by international documents. In implementing this right, states are committed to provide human access to safe and sufficient water for drinking, sanitary and domestic purposes. Although the commitment to the implementation of human rights, including the right to water, has been established in a way that basically obliges states when taking measures in their territorial territory, but based on the doctrine, the approach of human rights treaty bodies such as the Committee on Economic, Social and Cultural Rights, as well as opinions International Court of Justice, it is clear that the obligation of states to implement the right to water extends beyond their territory. In view of this issue, this article based on a descriptive-analytical method answers the question that in the international human rights system, how can states implement their obligation to the extraterritorial implementation of the right to water? The article argues that, like other second-generation human rights, states are committed to respect, protect and fulfill (at two levels of maximum and minimum obligations) the right to water beyond their territory.