دانشنامه حقوق اقتصادی
سال سی‌ام شماره 1 (پیاپی 23، بهار و تابستان 1402)

Due to the fundamental inconsistency of some judicial and criminal procedures on social phenomena in Islam and the West, the unique capacity of Islamic jurisprudence in formulating and expanding the legal aspects of phenomena and the need to pay attention to indigenous knowledge, action research and research, the present study is a systematic effort to Investigating the emerging phenomenon of misleading commercial propaganda and finding a ground for a jurisprudential and indigenous approach to deal with this phenomenon. The results of qualitative meta-analysis of more than two decades of research in this field showed that these advertisements are in four basic misleading dimensions due to information deletion, Misleading due to semantic ambiguity, misleading due to comparison of characteristics, and misleading due to non-fulfillment of claim are realized by different theories in psychology, linguistics, and social sciences. It was also found that the Islamic jurisprudence has both preventive and productive capacities to deal with this phenomenon. Accordingly, a four-step conceptual model of legislation was proposed in the all stages of which the Islamic jurisprudence has theoretical capacities which can be manipulated and used.

Payment systems are the most essential part of any country's economic and monetary infrastructure, and their performance is vital to the rapid and effective settlement of transactions as well as the safe transfer of funds across the economy. This system also improves efficiency and economic system stability in the national and international levels. The report of the core principles of systemically important payment systems of the International Committee on Payment and Settlement Systems (CPSS) of the Bank for International Settlements (BIS), known as the "CPSS" document includes ten legal and economic principles governing the processes of payment systems.This document is now strongly reflected in international law and economic systems, and it has been used and developed in a wide range of fields, including payment systems, central bank strategies, and supervisory policies in various countries around the world. This research, for the first time, provides the necessary foundation for applying, adapting, and evaluating all types of payment systems in Iran within the framework of these principles by introducing and briefly explaining these principles, as well as their legal and economic aspects. In this way, we can see the advancement and development of internal payment systems following the most recent international payment law standards and norms.

Regarding the handling of economic crimes, special courts to deal with the crimes of those who disrupt the country's economic system were established in a number of provinces in 2017. The rules of proceedings foreseen for these courts are in many cases contrary to the principles and bases of the usual proceedings in the handling of other crimes. It seems that one of the justifications for forming such courts is the character of economic criminals, which challenges the handling of macro-economic cases in normal courts. In this article, the authors examined the attitude of three groups of society's elite regarding the influence of the personality of white-collar criminals in predicting differential proceedings in these courts. 158 law professors, 312 lawyers and 421 judges were selected as a statistical sample using a judgmental method. The questionnaire of this research was designed as a researcher with closed-ended questions inspired by the 5-point Likert scale, and the data was analyzed and tested using SPSS version 22 software (Kruskal-Wallis). The result of the research showed that among the statistical groups, judges were more than other elite groups, they believed in the influence of the personality of economic criminals in predicting the differential trial of economic crimes.

Competition law, which governs the economic activities of entities operating in commercial and economic markets, is now facing a new challenge with the emergence of cryptocurrencies. While adhering to the philosophy of competition rules and the economic nature of these markets, it becomes necessary to conduct a legal analysis of the Bitcoin market from a competition perspective in order to identify various forms of anti-competitive behavior. In such cases, the application of competition rules and corresponding penalties needs to be tailored to the market structure. The occurrence of anti-competitive behaviors is possible in new formats, which should be taken into consideration when assessing market structure.One of the most significant forms of anti-competitive behavior is the abuse of dominance, which includes selfish strategies and the 51% attack. By manipulating the original blockchain and compromising the decentralized nature of Bitcoin, this behavior not only violates the principle of fair competition but also leads to market failure. A dominant position can also arise through mergers and monopolies involving dominant equipment. Additionally, algorithmic collusion, which involves altering the algorithm and creating a fork, represents a distinct form of cartel practice that enables the 51% attack. Attacks themselves constitute another form of collusion in this market, further complicating the competition landscape.Considering the self-regulatory nature and global structure of the Bitcoin market, competition rules and entities involved face the challenge of defining governance authority while accounting for the difficulties of imposing penalties due to anonymity criteria. Establishing an effective and productive relationship with developers is crucial for the safe application of competition rules in the market. Furthermore, it is possible to enforce competition law on registered agencies that operate as legal entities in compliance with local legal frameworks.

The bodily damages supply Fund has been established to protect the victims of vehicle accidents in order to be responsible for compensating the bodily injuries of the victims together with the insurance institution. Although several legal and jurisprudential principles justify the need to establish this fund, but maintaining the fund's position in society based on jurisprudential and legal criteria is not enough and examining the economic efficiency and desirability of the establishment strengthens its social foundation; Therefore, in this study, an attempt is made to assess the efficiency of the bodily damages supply Fund from the perspective of economic analysis of law and its economic justification.Research

The present research method is analytical and descriptive.

Adopting new financing methods of compensation requires the establishment of legal institutions based on economic analysis studies. The economic analysis of a legal entity means the use of economic tools and ideas in the process of legal analysis to inject economic data into the body of the legal system to maintain the dynamism and desirability of the institution. Planning the operation of the bodily damages supply Fund in the form of the cost-benefit principle and various efficiency criteria justifies the need for the survival of the institution and increase social welfare and the evaluation of the function of the bodily damages supply Fund in the light of economic theories leads to the strengthening of the foundation of the fund based on the economic analysis of rights.

The benefit of having social security and removing the feeling of dissatisfaction resulting from the violation of the security duty of the government covers the cost of establishing the fund based on the cost-benefit principle. Although it is difficult to match the efficiency of the fund with the Pareto efficiency criterion, the difficulty of justifying most of the social and legal institutions with the said criterion makes the lack of economic efficiency of the fund negligible, based on the said criterion. Identifying the economic optimality of a legal entity based on the Caldor-Hicks criterion requires a comparison of efficiency in the assumption of the existence or absence of that entity and the superiority of its benefits. Placing the bodily damages supply Fund in the format of utilitarianism theory instills a feeling of pleasure more than pain and suffering to the society, and despite the apparent conflict of the efficiency of this institution with the Posner criterion, the possibility of quick recovery of economic power and achieving a sense of social security is a great help to maximize social wealth. Doing public duty arising from the thinking of distributive justice in compensating damages and providing the basis for social growth and excellence resulting from the good governance of the welfare state also justifies not only the role and position of the bodily injury fund in compensating for traffic accidents, but also strengthens the idea of expanding compensation funds in non-traffic accidents.

Non-opposability is a sanction that came from French law to Iranian law and has taken examples in Iran's law, judicial procedure and legal doctrine. The flow of this sanction is where the rules protecting the rights of third parties, such as the need to register and publish or comply with the form, etc., in creating legal elements such as a contract, are not observed by the persons involved such as the parties to the contract. In Iranian law, this sanction is included among sanctions and legal situations such as nullity, lack of Influence and Mora’a and it raises the question that how efficient are these sanctions and legal situations for non-observance of the rules protecting the rights of third parties compared to non-opposability?Since efficiency is a basic concept in economics, which has several criteria for its evaluation, this research, using the efficiency evaluation criteria in economics, describes and analyzes the non-opposability from an economic point of view and in comparison with other sanctions and legal situations in Iran's laws.The result of this research is the economic efficiency of the non-opposability, among other sanctions in Iranian law, from the point of view of Pareto and Kaldor-Hicks efficiency criteria, relation to the situation of non-compliance with the rules protecting the rights of third parties.

Nowadays, consumer contracts, which contain a wide range of contracts, are made in the standard form predominantly. Despite their economic benefit, these contracts have bad result for the consumer, In such a way that the trader, with exploitation of his superior position, arrange an unfair contract to his advantage and to the detriment of the consumer.The law can not be passive against this injustice but legal mechanisms to deal with unfair and one-sided terms of consumer contracts are inefficient, because that provisions, according to the neoclassic economics, believe that informational Asymmetry and Inequality are the main cause of unfair consumer contracts, And so, uses information disclosure strategies as the basic tool to solve the problem of unfair terms of consumer contracts, this approach need to be reviewed and changed. This new approach is taking the advantage of the findings of "behavioral law and economics". Accordingly, the main problem of consumer contracts lies not only in the information asymmetry between the consumer and the trader, but also in the consumer’s real perception and decision-making processes that are affected by cognitive biases and errors. in this article, we will show in a descriptive-analytical way that the EU law approach, which includes the most detailed and advanced regulations in this field, as well as the consumer protection regulations in Iranian law, are based on the information paradigm, derived from neoclassical economics insights and failed in fair and equitable consumer contracts conclusion.

One of the most important challenges created in recent years is how to protect the environment against oil operations. Considering the harmful effects caused by this operation, the responsible institutions of this industry are trying to prioritize prevention over treatment in order to reduce environmental risks and emphasize preventive measures. One of the most important challenges created in recent years is how to protect the environment against oil operations. This research, in a descriptive and analytical manner, aims to analyze the requirements and previous measures of the contractor in the law and contract and explain the nature of environmental regulations by referring to national environmental laws and regulations, referring to international procedures, and international standards. International and international standards and references to national law and international procedures, as well as legal measures and explicit and implicit contractual terms, including feasibility studies, regulations related to protected areas, appropriate measures in emergency situations, waste management, and cleaning, and insurance, provide effective mechanisms to reduce pollution trends.

The topic of this research is about legal-economic analysis of contractual securities. Contractual securities are the most appropriate tool against violation of contractual obligations by the other party. Consumers of goods and services seek appropriate securities. This seeking is based on modules of economic analysis like mentality, tools of preferences, maximization of appropriateness, game theory, and technical and skilled efficiency, which is an integral part of an economic agent in the market. Generally speaking, the existing securities in a contract are securities related to the time after execution of an obligation and related to the execution of a obligation. The former is more in the framework of performance bond of non-execution or delay in contractual obligation and or in the framework of third party’s securities. Also, securities of services or objects of sale are related to guarantees and warranties. In this research, sorts of securities in contracts are examined. In conclusion, from an economical and legal point of view, the more effective the will of oblige in the selection and determination of security and rule of will instead of the law, the more efficient the securities. Consequently, these securities are efficient, due to better-providing preferences. Moreover, product-oriented contracts, guarantees, and warranties based on game theory could fulfill cooperative games. The integration of all sorts of contractual securities is possible and necessary.

In the current era, in the stock exchange of countries, one of the mechanisms to support investors is the disclosure of information of stock companies. Considering the importance of this issue in Iran's economic system, the current article, with a descriptive-analytical method and based on library studies, examines the concept, subject scope, theoretical foundations, principles, challenges and obstacles of information disclosure of listed companies in Iran and several Another country has investigated. The investigations of this article indicate that among the many theoretical bases expressed for the basis of information disclosure, the protection of investors is considered as the most important legal basis. Also, information disclosure of stock companies follows several principles, such as the principle of timely disclosure of information, the principle of correctness of information and the principle of comprehensibility of information. Although these principles are specified in Iran's legal system or can be construed from existing laws, information disclosure in practice faces many challenges and obstacles, such as the application of information classification system by some companies, avoiding The loss to the company and the conflict of interests of the managers are faced, which in some cases causes the complete non-compliance with the principles of information disclosure. In addition, non-observance of some principles in Iran's legal system lacks a guarantee of sufficient implementation or has a vague guarantee of implementation.

By compensating financial losses, insurance institutions guarantee the growth of the national economy and enable the continuation of economic development planning. They also play a special role in monetary and credit policies, and by concentrating national funds in the form of insurance premiums and creating technical reserves, provide the potential possibilities of large investments in various economic channels. Supervision of insurance operation has a central presence in process of economic growth and development, and development of insurance operation is closely related to the quality of supervision. Therefore, it is vital to create a structure in which goals and functions are presented clearly and appropriately, and where necessary, takes action according to the weakness of the insurer/system.In this research, while examining the basics of supervision and regulation in insurance industry, the structural and institutional framework of the insurance supervisor in selected countries has been studied and the powers and responsibilities of these institutions in line with effective supervision and regulation have been examined and compared.The results show that logic of regulation in the insurance sector is to protect the interests of the insured, promote the stability of the insurance market and prevent inappropriate behavior of insurers.Monitoring the performance of insurance companies can be planned in many technical, economic and legal branches that incudes controlling the conditions of establishment, granting and revoking the activity license, compatibility of policies general conditions with laws, control of technical and financial affairs from legal point, control of loss payment and settle accounts. Sufficient power, legal support and financial resources; operational independency especially from political institutions and insurers; accountability and transparency in functions and powers; possibility of hiring, training and maintaining human resources; level of market efficiency and level of access to information are the most important prerequisites for the effectiveness of supervision.

In any legal system, it is not possible to foresee legal rules for every imaginable situation or matter. No legislature can claim that it has predicted codified laws for all legal issues, and that under no circumstances the judge will face non liquet on the ground of brevity, deficiency or silence of law in order to decide disputes. This matter has been acknowledged in article 42 (2) of the International Centre for Settlement of Investment Disputes (ICSID Convention), according to which, ‘‘The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law’’. Hence, the arbitrator has to issues an award. He, on the pretext of the silence of or obscurity of law in the matter, or its brevity, cannot refrain from doing so. Since the establishment of the ICSID under the Convention on the settlement of investment disputes between states and nationals of other states and other investment treaty arbitrations, different methods have been used to fill gaps, ambiguity and brevity of the laws, the most obvious of which is analogical reasoning. Although the Court, in most cases, has been silent about resorting to analogy in its methodologies; it is suggested that analogy plays an important role in the arbitration of ICSID and other investments treaties, as a means of filling gaps, determining the meaning of the provisions of the treaties, eliminating the ambiguity and brevity of the concepts, rules and the principles of international investment law, as well as identifying the legal rule governing each cases. This article, while using the descriptive-analytical method, is focused on analyzing the role analogy as a basic method of legal reasoning in the judicial award of investment disputes tribunals.