فهرست مطالب مجید بنائی اسکویی

The best effort (conventional maximum effort) clause is the result of innovation in international commercial contracts, which is of particular importance in order to influence the interpretation of the contractual provisions and achieve the desired result. This clause is seen to be more effective among other similar clauses such as the reasonable care clause, and due diligence, because the obligor must use all his ability and expertise to fulfill the obligation. The best effort clause has different meanings in common law and civil law systems. The best effort clause in the civil law obliges the obligor to do everything in his power to fulfill his obligations, even if spending unlimited amounts of resources will cause him loss or bankruptcy, but in countries subject to common law, this clause has It is more flexible and means a conventional and appropriate effort, and therefore the obligor is not obliged to cut himself off from existence to fulfill the obligation. There is no mention of such a clause in Iranian law, but according to written laws and in the form of the traditional concept of commitment to means and results, accepting such a clause can be justified.

Formalism in law has generally been manifested in three positions that are completely different from each other. The first type of formalism is formalism in the realm of legal rule, which is used from the topics of Law philosophy and the concept of validity of legal rule based on formal criteria, regardless of its efficiency and content evaluation. In other words, the legal rule that has gone through the necessary formalities is respected, even if it is not efficient, or it has ignored the fundamentals and basic factors of law such as: economy, culture, and the like. Another type of formalism is in the realm of legal reasoning and is considered one of the topics of law logic and is used to emphasize the wording and form of expressions, even in conflict or at least, ignoring the spirit of the law. In this way, legal reasoning is actually reduced to formal logic or mathematical logic. Its function is to require the courts to understand the text of the legal article and make logical inferences from the legal article, for this reason, it is sometimes called mechanical legal theory. The third type of formalism is dedicated to the realm of legal acts. This type of formalism, which is the subject of this research, can be presented in interaction with the will of individuals, which to the concept of the requirement of certain exclusive and binding forms in legal acts and the regulation and issuance of documents, and the lack of freedom in the form of legal acts in creating, transferring and the guarantee of commercial documents is contrary to the originality of consent or even the principle of freedom of expression of will.Commercial documents in a special sense in terms of the role they have in the economic relations of individuals, especially merchants, follow certain systems and have certain characteristics. But the most basic feature of these documents is their formality. In the sense that the existence of intention and declaration in the creation, transfer, guarantee, and even payment of commercial documents although necessary, is not sufficient, but the observance and application of the form is relevant and has consequences on it. In fact, the legal form is dependent on the will and is understood in interaction with it and it is: "an external and tangible element that discovers, completes, proves, supports or directs the inner will or replaces it." which is relevant in the realm of legal actions, on this basis, if the will is assumed to mean the creation, change, transfer or cancellation of a right or legal status, the discussion of the form in legal events will not be relevant, because the form in legal events is an empirical manifestation in their sensible face. Although this form can be effective in law, this form of influence has a philosophical basis and cannot be called a legal form. Special attention and special credit to the form in commercial documents are often the initiatives of merchants and have evolved throughout history and have been approved by the legislator, jurisprudence and legal doctrine in international conventions and different countries. Contrary to other branches of private law, including contract law, and the validity of the principle of the sovereignty of the will as an indisputable principle and a symbol of the growth and maturity of private law, basically, formalism causes slowness and sometimes complexity in the contractual and economic relations of individuals, especially merchants, while, considering the philosophy of the separation of commercial documents and also the basis of creating these documents, the appreciation of formalism in this branch of private law is based on speed, ease and reliability in commercial relations. On the same basis, the idea of replacing the commercial document with a banknote as a container of money (not money itself) is one of the important reasons and foundations for the creation and use of commercial documents, which has a close relationship with the general economic order, with the explanation that money is a form of credit resulting from the power and authority of the government, which may be poured into any format, whether it is a banknote, a credit card, a check, or digital currency. Therefore, commercial documents are not based on the basis of replacing that credit essence (money), but on the basis of being recognized as a container of money and a substitute for banknotes, which is the most obvious example of a container of money. This article tried, different from the researches, to analyze the concept and ratio of formalism interaction with will and its foundations in commercial documents.

The increasing development of internal and international trade and commercial transactions, the need for speed and ease of commercial transactions, the important role of capital circulation, and the volume of exchanges in the economy of each country require the prediction of the tools needed in this field, which at the same time keep pace with developments, based on the needs of the market, ensure the fulfillment of obligations. Undoubtedly, a cheque, as one of the most common payment methods in internal business transactions, has a special and practical role in economic relations. Despite having many advantages, this document, as an alternative to bank notes, has some disadvantages, the most important of which is the worry of non-receipt of the cheque by the holder who has taken a piece of paper in exchange for the price, which he does not know if it can be receivable or not? because this document is dependent on the issuer's credit and has no inherent value in itself, as a result, no other support to receive is conceivable except credit and trust in the issuer. Despite the provision of a guarantee of multiple implementation guarantees and even the provision of criminal penalties for issuing bounced cheques, the position of this popular document in business relations has not been established for years. Cheque, as one of the important means of payment in domestic trade, has a significant contribution to commercial activities, and if it is designed for the use of this useful tool and is provided to the activists of this field, it can be effective in achieving macroeconomic goals. But let's not forget that a cheque is only a means of payment and it cannot be considered as a payment, and therefore there is always a concern for the person who received this document and lost money in return, that if the document leads to payment If not, how and by what implementation guarantee can he claim his rights.The effects of bounced cheques, such as the density of court cases, the increase in the number of cheque prisoners, and the decrease in the validity of cheques to economic actors, which ultimately imposes a significant cost on society, have been from the very beginning of the appearance of cheques in the Iran laws, In the year 1925 and then in the current commercial law approved in 1932, has encouraged the legislator to especially support this commercial document by developing special rules and regulations, so that it can be used as an efficient payment tool.In Iran's legal system, the various sanction guarantees foreseen for bounced cheques have a long history with the establishment of commercial laws. Only one year after establishing the current Trade Act and assigning 8 articles to cheques, the Iranian legislature approved the first sanction guarantee with a criminal approach in 1932 by adding repeated Article 238 to the criminal law. The legislator's idea of predicting the punishment for the issuer of the cheque was carried out in line with the crediting of the cheque, so that while encouraging the economic activists to use this document, their concern about the possibility of non-payment will be reduced and the trust of the people will not be taken away. However, in practice, the chosen way for the legislator to raise confidence by adopting the guarantee of criminal execution could not stop or reduce the upward trend of issuing bad cheques. Later, this approach was adopted by guaranteeing various and sometimes unique performances for this popular normal document, so that some of these privileges are not even provided for the official document.The last act of the legislator in the direction of increasing the validity of the cheque is the amendment law of 2017, which consequently made changes to the regulations governing the cheque, the most important of which is the guarantee of bank execution. This new implementation guarantee includes a set of protective and punitive measures that are applied by the legislator without the need for a judicial order on the part of institutions providing financial and credit services.  It is worth noting that before the enactment of the above-mentioned amendment law, the bank had no legal obligation for a bounced cheque other than issuing a certificate of non-payment, and the cheque holder had no hope of the bank's cooperation to fulfill his rights. Whereas, according to the guarantee of implementation stipulated in the amendment law of 2017, the most important duty of banks and financial institutions is to receive unpaid cheques for the benefit of the holder. In my opinion, the most important sanction guarantee that the legislator could have established for crediting this document since the birth of the cheque is the bank implementation guarantee. The official statistics published by the competent authorities indicate a significant decrease in the issuance of bounced cheques after the implementation of the aforementioned law, but this method has disadvantages and problems that must be corrected. In this article, an attempt has been made to provide a legal and economic analysis of this unique performance guarantee.

Among the legislative measures in the law amending the issuance of checks in 1997, is the creation of a new method, in addition to guaranteeing previous performances, to receive the amount of returned checks; However, the holder of the check applies for enforcement by presenting a certificate of non-payment to the competent court, and the court, without substantive consideration and merely fulfilling some apparent conditions, this document, like other final court rulings previously Has been judged and judged and at least two stages have been considered, issues an executive order. Although the necessity of creating this special solution, in addition to guaranteeing other performances, is questionable, but benefiting from this new privilege, has several drawbacks such as: inaccurate determination of executive authority, ambiguity in the concept of "holder", lack of compliance certificate The signature by the bank is the possibility of bringing the executor against without substantive proceedings, the impossibility of claiming compensation for delay in payment even if a legal condition is included in the check and a summary such as the "check amount deficit" clause, which is exceptional and may not be interpreted. Extensive has caused ambiguities in the adoption of this new strategy. In this article, in addition to the legal analysis of the mentioned article and the review of the elements of executive issuance, an attempt has been made to give a clear answer to the various ambiguities.

Complaining about the bankruptcy order is very important as it affects the rights of the interested parties. Before the issuance of unified judicial precedent No. 789 of the year 2019 of the General Board of the Supreme Court, there was doubt in the doctrine regarding the rule of special provisions of the Commercial Law to complain about the bankruptcy order, and in practice, there was no specific jurisprudence on how to invoke these articles. Although the subject of disagreement that created the aforementioned unanimity vote is the deadline for the third party's protest against the bankruptcy order, the said decision has only emphasized the validity of the articles of the Commercial Law, which inevitably, without studying the conflicting opinions, it is difficult to understand that the subject of the dispute is the binding of the third party's protest to the times specified in the law. In addition, the validity or invalidity of the provisions of this law was only one of the questions that were answered by issuing the above decision, however, there are still many other uncertainties regarding the interested parties and their inclusion in the parties inside or outside the lawsuit, whether absent or present in the preliminary hearing, the competent court, the origin, and deadline for filing a complaint against the bankruptcy order that have been tried in this article to give clear and convincing answers to the above questions and uncertainties.

The distinction between civil and commercial practices and the identification of commercial activities and transactions have long been the source of many effects that have gradually been accepted in most legal systems in a codified form and also in the form of commercial laws. The book of Commercial Law, Volume 1 has been compiled in accordance with the Iranian Commercial Code, stating the basics of commercial law and focusing on the rights and duties of businessmen and identifying commercial practices for the undergraduate law course. The critique of the present book has been done using the known criteria and characteristics in order to evaluate the book and to identify its strengths and weaknesses in order to promote and improve the research. One of the most important shortcomings of the book is the lack of comprehensiveness of content and the weakness of analytical discussions, which has overshadowed the reasons for compiling the work. Since the book in question is one of the academic books, the need to complete and upgrade it will definitely be useful for both the author and the students. It is hoped that some issues will be modified in future editions.

If two corporations are related and affiliated through management and economic circles, one is called the parent and the other is the subsidiary. This affiliation will, in most cases, result in the complete domination and control of the parent over the subsidiary and thus abuse its template. Now, given the acceptance of the principle of limited liability in corporate law, can the legal practices and actions created be attributed to the parent company as the controller of the legal relationship (between the subsidiary and third parties)? The US legal system, by resorting to the Alter Ego rule, has prevented such an abuse. The Alter Ego refers to the conditions that the courts exercise on the basis of Justice and Equity and thereby treat the parent company as the proprietor of the company or the real party to the benefit against good faith third parties. The basic conditions for applying this rule can be effective real ownership and control of the Alter Ego (the parent company) over the actions of the subsidiary, unity of interest and ownership between the two companies and unjustified actions of parent company. In the Iranian legal system, there is no explicit regulation in Trade Code in this regard. There is no specific solution in the case law as well. But it seems that by taking advantage of capacities of Imamiyah jurisprudence and domestic law such as The Swindle Rule, theRule of No Damage, the Theory of Agency, the Theory of Relative Independence of the Legal Personalityand other principles, this rule can be applied.

In October 1929, in Warsaw, the Convention on the Uniformity of Aviation Regulations was signed by the participating countries and entered into force on 13 February 1933, following developments in the field of aviation and the occurrence of deficiencies in the text of the treaty. Twenty-five years later, the Warsaw Convention was amended on 28 September 1955 in The Hague, and the Protocol entered into force on 1 August 1963, with the most important change being the convention, which doubled the carrier’s liability. In 1975, the Iranian government acceded to the Warsaw Convention and its amended protocols and accepted the implementation of its regulations on foreign flights. In 1985, the Islamic Consultative Assembly considered the provisions of this treaty applicable to domestic flights. Many countries, such as Iran, acceded to the Warsaw Convention and its protocols. In the Iranian law, with the approval of the Law on Determining the Limits of Liability of Airlines in Iran on 5/11/2012, and despite the many criticisms leveled at this law, the amount of liability of domestic companies towards Iranian passengers on domestic flights is equivalent to ransom and what about foreign passengers. In domestic and international flights, it is equal to 16600 Sdr and in front of Iranian passengers in international flights, it is equal to 16600 Sdr. In this article, after presenting the common definitions in aviation law regarding the responsibility of transport operators and stating a history of a set of actions and documents, the principles of liability of the Convention and Iranian law were comparatively studied. The timing of the beginning and end of responsibility is one of the most important and challenging issues, which is discussed in detail in this article. The amount of damages payable is another chapter discussed in this article.

The Council of Money and Credit, as one of the most important components of the central bank of Iran, is responsible for regulating macroeconomic policies of the country’s banking and supervision over banks and financial and credit institutions. In order to carry out its duties, the Council has laid down many approvals that are binding on the banking system. However, in some cases, these decisions are in conflict with current laws and regulations or have been outside the scope of the legislative authority of the Council. Hence, there are many questions and ambiguities regarding the position and legal scope of the decisions of the Council of Money and Credit. For instance, are the council’s regulations mandatory for other executive organizations in addition to banks and financial and credit institutions? Otherwise, if the rules are contrary to the Constitution, or the ordinary law, what is the duty of the executors? Given the lack of anticipation of the prior assessment of the above-mentioned approvals, in the course of a dispute and a lawsuit, does the court have a duty to assess and have the right to disregard the effects of such decisions, which have not yet been canceled?

The civil liability system in Iran Civil Code is affected by Imami Jurisprudence. Although the French Civil Code has affected the Iran Civil Code, the Iran law has been rarely affected by French law in the codification of the articles relevant to compulsory guarantee. Except for a few Articles under the title of generalities (Article 103-102), this section of the Civil Code is codified based on Imami Jurisprudence. Hence, the structure of the civil liability system in Iran Civil Code is consistent with Imami Jurisprudence. In Islamic Jurisprudence, the civil liability system is a pluralist system; meaning that references of civil liability are various; although the causes of the guarantee are studied. In Iran civil code, following the Imami jurisprudence, the references of the compulsory guarantee are presented in 5 items. The references can be classified under two titles: guarantee for loss (usurpation and pseudo-usurpation) deliberate destruction (stewardship and cause) and vindication is a kind of loss of interest. Other titles sporadically mentioned in Islamic jurisprudence, or can be inferred from some articles of civil code (enforceable guarantee for the corrupted contract, pride, etc.) can't be independent references of guarantee. Moreover, in Islamic jurisprudence, instead of reliance on harm or making loss, the guarantee and civil liability are based on a waste of property. Due to the difference between the two terms, this can restrict the domination of civil liability and a general rule for loss compensation can't be inferred. Accordingly, to make civil liability, the offender shall be wasted or shall have a hand in the property of a third party. Doubt and disagreement in the capability of loss compensation or the difference of personal interest are caused by the attitude. However, the idea that is noted by the author of the Civil Code can be criticized. The present study has attempted to analyze Imami Jurisprudence and amend the attitude. The gap of the civil code in this field could be cleared through this, and it could be amended.

The commercial documents as the paying mean of noncash, have a special position in relationship between merchants and were negotiated in many law books about them. Third volume of the commercial law book has been written by an honorable author in different aspects such as: Issuing, Transferring, Paying and other subjects that are related to commercial documents. The present of criticism affect is performed by using through known standards and characteristics to intend to assessment and arbitration, as a result, to identify its weakness and powerful points to welfare and improve of future researches. Out of the most important defects of book are lack of legal analysis and also innovation. At the present book, not only is enough for summary explaining of legal articles, but also is not adduced other sources except of the acts which it is hopeful to remove some of the defects in future publishing.

Pursuant the act of annulling the scholarship of some students by ministry of sciences, researches and technology, those students proceed against the ministry before the administrative court of justice. Albeit the court accepted the memorials, but the other way round, the court refused to adjudicate the case according to the act 630, ratified on 1387 S. H. by the high Council of Cultural Revolution. It was a wrong and unprecedented action by the court which it will result in a corrupted consequence that will waste the right of people and even may cause controversies over the court and its organization. Pursuant to the fear of the probable wasting the right of individuals in future and harms of the negation of the self-desired competence of Administrative Justice Court, I am going to study the respectable refusal of the court from a judicature. I won’t challenge the nature of the act of the ministry because it’s lie with the court to scrutinize such act on the basis of rules and regulations.

By virtue of the authorities prescribed by various laws and regulations including the “Law of University Board of the Trustees Formation”, The “Law of Goals and the Authorities of Ministry of Science and Technology” and article 20-B of Iran’s Fourth Development Law, universities are not bound to general obligations provided for state organizations / elements including particularly those in the law of Public Accounting, Civil Service Management Law, the Law of Bidding and Tenders and rather only bound to bylaws drafted by their board of trustees who may legislate in a wide variety of affairs including employment, administrative and financial policies. The question here is where do these regulations stand in the pyramid of legality? What is it the enforcers of law should do where these resolutions may contradict the constitution, laws passed by congress, statutory resolutions of the High Council of Cultural Revolution or the decisions of the cabinet?! Whether the authority and enforceability of such resolutions are only limited to universities or may also extend to other executive governmental bodies as well?!. Given the lack of relevant precedent in regards with exercising the extravagant authorities granted to the boards of trustees by the said laws and regulations, it is of grave importance to tackle on the subject and study its surroundings. This thesis is aimed at studying and investigating the validity, legal position and the scope to which these resolutions are enforceable.

Legal perspective, it is important to point out that today's innovation as the main keyword and one of the main elements of the economic transformation, the distribution of power and wealth affected and in many cases, affect patterns of our social behavior. Putting aside the rights and innovation so that the effects of attention to the concept of legal aspects of attention and highlights. In this paper we will present the general theory governing the rights of both innovation (liberal legal theory and the theory of law firm). The rights policies, and mainstream innovation policy governing innovation in the field of law will be studied. Finally, this study expressed a variety of innovative legal tools, these tools are introduced briefly discuss how each level. The last part of this article that the introduction of intellectual property rights as a tool for innovation will be investigated in the area of ​​innovation policy in dealing with intellectual property and are important tools in the innovation policy implications will be discussed.

The financial performance impossible of the contract set forth because of the financial inability of one who undertake stems from external factors and attributing to the contracting parties is impossible. In the event of financial impossibility the present procedures (based on existing regulation) the possibility of the contract termination، the obligee is in compliance with the conditions، while it seems quite possible to modify the contract should be considered. Impossibility is committed relationship with his or her obligations fulfilled by simply not applicable due to external factors. In this article، we will try to apply the circumstance of the express option to survey to some extent the reasons for the contract adjustment. Key lexicons: obligation، delivery، impossibility of performance، option and modification (adjustment).

Appointment of ex-public and revolutionary prosecutor of Tehran to managing director of social security fund was seriously criticized by Parliament and it was requested from the Minster of Cooperative for his dismissal. Minister reject this issue and he was gone under impeachment at parliament, finally the decision of impeachment was rejected and Parliament instead of continuing political control, assigned this issue to The Judiciary and General Board of Court of Administrative Justice. By virtue of written verdict No. 261 dated July 30, 2012 this appointment was cancelled; in which, is regarded as exception case in history of Court of Administrative Justice. This article investigates validity of judgment in administrative law system of Iran and ambiguity in competence of general board and even regarding written verdict as the only judicial review on acts of government. By hoping competence of branches of Court of Administrative Justice for investigating such lawsuit in relation to interpreting public interest and applying rule of law upon amending act of this court.

Nullity of tenancy will occur in two shapes: first, tenancy may be null upon lack of one of the conditions of validity of contracts or lack of conditions of validity of tenancy. In this situation and with legal view no contract has been created and relation of parties has justappearance of tenancy. So nullity of tenancy whenever it reveal, retrogress and relation of parties must return in the form of before contract. Second, tenancy has all of the conditions of validity of contract in the time of conclusion but in the middle of tenancy,changing circumstance converts rented property that continuance of tenancy becomes impossible and consequently tenancy will null. In this case, nullity affects future and doesn’t retrogress. Upon this basis, in civil law of Iran, jurisprudence, Egypt and France ruin of rented property will null tenancy from the time of destroy and all of theparties relation before nullity will save, because capability of using for a period of time is the subject matter of tenancy and it is supposed that before destroy of rented property, utilization has been occurred and tenant has been obliged to pay rent. Iran law and jurisprudence in spite of Egypt and France law consider tenancy as a possessive contract.This classification involves some effects and consequences that has more harmony with the nature of tenancy and therefore Egypt and France law doesn’t have defects on nullity of tenancy has being seen in Iran law and jurisprudence.