فهرست مطالب مهشید جعفری هرندی

Due to the conflict of interests, the intensified imbuement of the human interrelationships with avarice, and the constant struggle for the attainment of more benefits, the creation of an appropriate and effective sanction has been taken into account in all legal systems. Consequently, this point has been deemed as one of the important indicators in setting rules and regulations within the business activities, too. The more this sanction agrees with the active forces of the social arena, the cultural norms, and especially the jurisprudential rules acknowledged by the majority of the society, the more the legal rules and regulations related to these norms will be taken into account (due to their intermingling of the two elements of legitimacy and popularity) as social capital and as a reliable point that will bring about businesspersons’ trust. On the contrary, when these factors lead to conflicting behaviors, they will result in the reduction of trust in governmental rules and regulation, behavioral conflicts among market actors, disinterest in regulations, violation of law, and finally the breakup of economic and business relations; moreover, intense conflict will occur between the legal system and the social behaviors that will lead to the reduction or loss of the social capital that is related to the rules. In fact, the foundation of the rules of the society on Islamic jurisprudence and the explication of legal verdicts in the light of jurisprudential bases in the Islamic society is a valuable social capital that should not be ignored by the governmental officials. The goal-oriented view to legal verdicts in the Islamic government and the analysis of the legal regulations based on the human dignity and human rights as emphasized by Islamic jurisprudence have their roots in the specific methodology of Islamic jurisprudence and help with the explanation and rereading of the Islamic law. The adoption of this view to the Competition Law and the anti-competition practices increases the legitimacy and popularity of legal rules.

Competition is a kind of contradiction with collaboration. People who compete with each other have accepted the principles and regulations which they observe them. They achieve to highest possible level of their abilities with competition. The community benefits from their efforts. People who ignore rights of each other and avariciously following on increasing earnings will disrupt the good conditions of society and undermine the natural process of affairs. Islamic jurisprudence by protecting the interests of the society through the acquisition of the benefits and repulsion of Corrupted, looks for rejection of any kinds of corruption and realization of favorite and good society.
Anti-competitive practices are practices which create serious economic corruptions and disturb natural process of economic affairs and finally disarrange the whole society.
Competition law on the basis of rule of “La zarar” , the rule of Abuse of Right ,the rule of Negating Disorder, the rule of Public Order, the human right rule of Non- discrimination, and the theory of Prohibition of Consuming Property Wrongfully sets up regulations to prevent the effects of that anti-competitive practices. We, in this article, analyses the basis of the obligatory verdict (hokm taklifi) of these prohibitions.

Today, free trade is considered as, one of the most important issues in international trade around the world... However, adherence to the principle of free trade and reduce tariff barriers, will confront many countries with the risk of dumping. Dumping as one of the negative consequences of free trade, which used as a means for illegal competition to expand foreign markets the and in some cases, destroy domestic product of importing countries. The trade in Islamic legal system is based on. morality and virtue and emphasis is made on equity and justice to provide a means of public welfare in the Islamic community. Dumping as an, unfair trade practices deemed to be in contradiction with some Islamic legal rules such as the principle of abuse of right and la zarar and the rule of disruption of the economic system.

In the late 1980s, imposing stringent environmental regulations in industrialized countries increased the costs of eliminating hazardous waste, and thus its transport to the developing and Eastern European countries began. Following the enhancement of the amount of hazardous waste and relevant disasters in these countries, the export of such wastes was recognized as a serious business by the international community. Hence, in 1989, Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Principle Disposal was prepared by the United Nations Environmental Program and adopted by different countries. Meanwhile, in1993, Iran became a member of the Convention subsequently referring the disposal of special waste overseas to its regulation in Article 14 of the Law on Waste Management (2005). In relation to the damages of transporting hazardous waste and its compensation, the Convention has designed an Additional Protocol; attached to the double standard of strict and fault-based liabilities with limited financial strict liability. Basel Protocol has promoted the Basel Convention regime to ensure minimum compensation through compulsory insurance, supplemental financial compensation and time limits for claims. However, unlike other international conventions on hazardous waste, it has assumed strict liability not to be undertaken by the carrier, but by the people via the temporal distribution of responsibilities.

The ownership that involves transactions and barters is subject to the validity of the intellectuals and the lawmaker، which is created by hypothetical (i‘tibārī) existence and can somehow be called a hypothetical relation for whose validity the existence of local convention is sufficient; therefore، ownership is neither among the categorical accidents، the existence of whose subjects is necessary in the outer world، nor like the mental conventions that resembles the concepts whose accidents and qualification are mental. Right (ḥaqq) is a specific capability that sometimes applies to physical goods (‘ayn)، sometimes to the contract، and sometimes to the person; such as the right of delimitation (taḥjīr)، the right of option (khiyār)، and the right of retaliation (qiṣāṣ). The object of right is in all cases an action that involves the physical goods، or person، or contract; whereas، property is a possession or domination that in reality involves the very physical good، or benefit، or action. Therefore، since the property is essential for absolute domination and the right is regarded as a special credit in some specific appropriations، the right cannot be considered as the property itself; and، furthermore، since property is by nature a simple issue and non-gradational، the right cannot be considered as a degree of the property. Besides، in some rights، including the right of delimitation and the right of specification (ikhtiṣāṣ)، ownership is essentially out of question. Given its specifications، right is principally conveyable، relinquishable، transferable to inheritance except in cases in which a specific reason prohibits all or a part of appropriations and everything that is in nature characterized by right is apt to relinquish، otherwise it is regarded as a decree، in which case it is not relinquished except by compliance with decree or denial of the subject. Since evidences for transactions stand as enforcement of legal means، if in cases of doubt، there is certainty about transferability and doubt in deterrence or conditionality is the specific cause، the generality of the evidence of condition or amicable settlement (ṣulḥ) would be executed; and if doubt is in the transferability itself، the principle is the non-acceptance of transference.

The WTO is an international organization which arranges international commercial rules and disputes settlements. Increasingly joining of countries to the WTO and movement for freedom of commercial regime in industrial or developing countries are deniable testimonies for globalization. Gradual reduction of tariff and competition in exports and internal markets by their advantages have jeopardizes consequences for industries. These risks are unfair competition by Dumping and subsidized experts productions. In order to preventing this unfair competition, the organization decides to enact some rules i. e. Anti- dumping agreement of the WTO which is one of the commodities agreement of GATT 1994. This agreement contains measures for preventing unfair competition or facing emergency conditions which usually appointed with countries request in order to protect internal industries. In accordance with this agreement a product dumps when export price, in normal flow of commerce, is lower than production price. If the WTO members in research process obtain below instances, they can apply anti-dumping measures: - Dumping takes place. - Serious interruption in internal industry has occurred. - Finding the communication between Dumping and interruption.. ..