مقالات رزومه دکتر مهدی فلاح خاریکی

The criminal responsibility of legal entities, especially commercial companies, is one of the important issues that is the subject of discussion and considering the important role of these companies, its explanation and analysis is of great importance. The purpose of this article is to examine the approach of Iranian criminal law towards the criminal responsibility of legal entities (business companies). This article is theoretical and has investigated the mentioned subject by using analytical descriptive method. The findings indicate that the criminal responsibility of legal entities in Iran was explicitly defined for the first time in Article 19 of the Computer Crimes Law approved in 2008 and specifically for some of the crimes stipulated in that law and then generally in the Islamic Penal Code approved in 2012 without it was predicted to be limited to certain crimes. The Islamic Penal Code approved in 1392, in Article 20, 142, 143 and other articles, has determined punishments for legal entities, which include liquidation of the legal entity, confiscation of property and other cases. Based on Article 143 of the Islamic Penal Code, criminal responsibility is based on the responsibility of a natural person, and a legal person is criminally responsible if the legal representative of a legal person commits a crime in the name or in line with its interests.

Undoubtedly, the purpose of establishing the rules of civil liability is to compensate for the loss. In other words and from a technical point of view, a loss must be caused to compensate for it, responsibility should be created, and religion should be responsible. In fact, the occurrence and survival of civil liability depend on the current existence of damage, and quantity and quality are not involved in the principle of liability. In other words, the rule governing civil liability is the rule of all or nothing. That is, the responsibility is considered to exist when the loss is realized, and to be extinguished when it is not. Meanwhile, taking into account one of the conditions of claimable loss, which must be certain in the past and that one cannot be sentenced to compensation based on the mere possibility of loss, this research seeks to find an answer to this question: Considering Iran’s and France’s laws and regulations and through the prevention of civil liability, it is possible to imagine a place for future loss and the possibility of compensation? The findings of this research indicate that a possible loss is a loss that has the possibility of its realization in the future, but a future loss is a loss whose existence and realization in the future are certain and the necessity of its existence has been achieved in such a way that a country’s custom and law consider such losses to be definitely claimable.

The personality file is created along with the judicial case in order to make the appropriate decision. The information of the personality file form should be completed using the records contained in the court file, when registering the case, interview, examination and if possible, field investigation, either in person or by telephone contact with family members. By paying attention to the expressions of the legislator in the criminal procedure law, it seems that the filing of a personal file in some private law cases is also a way forward, but this issue requires legalization and defining the limits and gaps of filing a personal file in legal cases.

The present research was carried out using a descriptive and analytical method.

The basis and purpose of filing a character file in criminal lawsuits is to observe fairness and fair proceedings by fitting the punishment to the personality of the people, which is also followed in legal lawsuits. It is possible and effective to file a personality file in legal cases such as custody, guardianship, guardianship, embryo donation, etc., and even if it is possible to inquire about this case online for family court judges, it will be very helpful. In the process of filing a personal file and collecting information, the rules related to privacy and citizen's rights must be observed. In addition,

Note 3 of article 8 of the Compulsory Insurance Law adopted in 2016, in a new and unprecedented case, considers the financial damages caused by traffic accidents compensable only to the extent of the corresponding damages to the most expensive reasonable vehicle through third party insurance or the culprit of the accident. In fact, the corresponding damage is the maximum damage that the owner of an unconventional car (the injured person) can receive from the culprit of the accident for the damage, even if the damage to the unconventional car is more than that amount. Therefore the purpose of this study is to examine the question on what basis and for what purpose did the legislature take such an initiative so that it can be used by recognizing and expanding it in other similar laws and regulations.

In this article, with a descriptive - analytical study, an attempt has been made to explain and examine the reasons for the above problem by using library resources and reading and searching books, articles and related theoretical topics.

Traffic accidents are one of the most common and important injuries that most people in the community are always in touch with. This has caused the legislator to pay constant attention to the insurance law and to make changes and amendments to it over time along with the needs of the day. The provision for corresponding damages in the new compulsory insurance law includes a provision that implies a special system for compensating for financial damages caused by traffic accidents. This is because the corresponding damage to the most expensive reasonable car can be applied not only in the existence of third party insurance, but also in the event that the car of culprit of the accident has not valid third party insurance, Will be applied. For this reason it is difficult or impossible to justify this sentence in accordance with the usual rules of civil liability based on the rule of no harm and full compensation. Loss protection through assurance of payment and compensation and paying attention to the social and financial inequalities of individuals shows the legislator's concern through this law.

The present paper shows that the legislature in anticipating the corresponding damage with the aim of ensuring compensation and protection of the injured party has used the theory of collectivization for damages and reduction of social costs through the loss distribution system. The theory of collective compensation, by involving individuals in the society in the payment of damages, removes compensation from the personal state and turns it into a social matter. Thus, contrary to the importance and role of fault in traditional theories of civil liability, what is placed in the first place in the collectivization of compensation is not the responsibility of individuals or the punishment and deterrence of the deficient person, but compensation. Therefore, in the corresponding damage, it is the accident itself that is more important than the person responsible for the accident and it causes the application of a special system of compensation, which ultimately leads to social solidarity. Thus, the legislator has rightly used its possibility in applying social considerations and economic necessities in amending the law of compulsory insurance and traffic accidents.

The economic group with common interests in line with the needs of today's society is almost a nascent institution in our domestic law. This type of partnership is similar to the various partnerships in international systems, including joint ventures and consortia. The economic group is necessarily a party to the transaction and a party to the rights and obligations in order to carry out the activities necessary to achieve its goals. In Iranian law, in Article 107 of the Fifth Economic Development Plan Law, the economic group with common interests was introduced as a new institution. This group is a legal establishment that is formed freely between natural persons on the basis of joint and several liability. As mentioned, the economic group with common interests is similar to various similar institutions, such as civil participation in jurisprudence, joint ventures and consortia. Accordingly, the main issue of this research, which intends to deal with the descriptive-analytical method, is what are the differences and similarities between economic groups with common interests with similar institutions. According to the research findings, what is certain from Article 107 of the Development Plan Law is the interest and sense of necessity to systematize and facilitate the establishment and operation of "economic group with common interests" or in more general terms contractual partnerships that can be neglected Consortia, joint ventures, etc. The concept of economic group with common interests, which is adapted from French law with similar concepts such as consortium, joint venture and also civil companies, has the same nature and concept, and in Imami jurisprudence, the concept of civil company is emphasized.

The present study attempts to examine the instances of damages to property caused by traffic accidents and the restrictions and conditions governing their reimbursement, which under Compulsory Insurance Act 2016, an insurer will compensate if there is a valid third party insurance and ultimately make suggestions to amend  relevant laws.

The method used in this study is descriptive-analytical using library tools. In this article, first, the issue is examined according to Compulsory Insurance Act 2016 and then the opinions of lawyers on the issue are discussed and finally, along with the analysis and review of opinions in the Iranian legal system, suggestions for amending Compulsory Insurance Act 2016 are presented.

Unconditional definition of damages to property in paragraph b of article 1 of Compulsory Insurance Act 2016 includes damages to third party property (whether object or benefit or right). Of course, damages to property are covered by third party insurance if the property belongs to a third party and is located outside the vehicle causing the accident. According to paragraph 1 of Article 17 of Compulsory Insurance Act 2016, damages to the cargo of the vehicle that caused the accident, whether it belonged to the driver who caused the accident or a third party, were excluded from third party insurance. Moreover, if the damages resulting from the deprivation of benefits (loss of use) can be claimed according to the general rules of civil liability, there is no reason not to claim such damages from the insurer under Compulsory Insurance Act 2016. As a result, the reference of article 39 of Compulsory Insurance Act 2016 only to vehicle, is related to the prevailing case because the property and objects under the ownership or legal possession of third parties that are damaged may not be his only car, as paragraph b of Article 1 of Compulsory Insurance Act 2016, in the definition of damages to property, it refers to "third party property", which unconditional definition includes any property. Also benefiting from paragraph b of article 1 of Compulsory Insurance Act 2016 and the concept contrary to paragraph “a” of article 17 of that law and the provision of article 2 of Law on Immediate Investigation of Damages Caused by Motor Accidents, approved 1966, the loss of market value of a car (price reduction) that results from a car accident is one of the obvious damages that may be suffered by a third party and is therefore covered by third party insurance and can be claimed on the insurer, because in note 3 of article 8 of Compulsory Insurance Act 2016, financial compensation is the responsibility of the insurer or the tortfeasor of the accident. If the price reduction is not considered as damages to property and is not considered compensable by the insurer, the tortfeasor of the accident should not be responsible. In addition, the corresponding damage is the damage that will be calculated corresponding to the damage done to the most expensive conventional car, not to the proportion of the conventional car. In predicting the institution of the corresponding damage, the legislator has departed from the conventional theories about the philosophy and purpose of civil liability and the principle of complete compensation and has attempted to work on the basis of distributive justice as well as ethical and economic considerations and social policy considerations to moderate effect of civil liability for the benefit of the weaker part of society economically. The last part of note 3 of article 8 states a provision that implies the provision of a special system of financial compensation for traffic accidents. Because the corresponding damage to the most expensive conventional car is applicable not only in the presence of third party insurance but also is applied in favor of the tortfeasor of the accident when the car of the tortfeasor of the accident does not have valid third party insurance. A ruling that has no precedent in the Iranian legal system and its justification is impossible in the traditional framework of civil liability and according to traditional principles and rules, especially the no-harm rule. Given that the institution of the corresponding damage is exceptional and irregular, it seems that the application of the specific rule of the corresponding damage is applicable only on the assumption that the subject of the third party's property damages was his vehicle. In cases where damages to property have been incurred on property other than his vehicle, all damages to property, as the case may be, are reimbursed by the insurer of the vehicle causing the accident (up to the limit of the financial obligations of the insurance policy) or by the person responsible for the accident.

The lack of transparency of Compulsory Insurance Act 2016 on some instances of damages to property caused to third parties such as cargo belonging to the occupant of the vehicle, deduction of car price (price reduction) of the damaged property and deprivation of the third party from gaining benefits of the property and the conditions governing their compensation such as the limit of financial obligations contained in the insurance policy and the corresponding damage, have caused doubts and ambiguities which have caused disagreement and conflict of opinions that requires the legislator to intervene to reform the law in this regard. Accordingly, in order to prevent any disagreement and conflict of opinions, it is proposed: 1) Possibility of compensating the price reduction of the vehicle, deprivation of benefits of the damaged property, compensation for damage to the cargo of the occupant of the vehicle should be explicitly foreseen to provide full compensation, which was one of the most important goals of Compulsory Insurance Act 2016. 2) The legislator shall explicitly limit the application of special rule of corresponding damage to the third party vehicle.JEL Classification: K11, K13, K15.

The general rule of inheritance has one exception, and that is the issue of inheritance between the drowned and the downtrodden. The purpose of this article is to explain the possibility of extending the sentence to other similar cases of drowning in case of ignorance of the date of death of two or more people.

The article is descriptive-analytical and uses the library method to study the subject and data collection has been done by referring to documents, books and articles.

It should be considered that death is not characteristic of drowning or drowning; Because the meaning of wrong judgment and ignorance is in the precedence and delay of death. Also, the cause of inheritance in the two titles of drowning and drowning is to eliminate the effect of ignorance on the date of death and to establish its precedence and delay among the heirs. Therefore, the cause that requires inheritance in drowning and mourning is also present in other similar cases.

 In all stages of writing the present study, while respecting the originality of the texts, honesty and trustworthiness have been observed.

The esteemed legislator should take a corrective look at Article 873 of the Civil Code and the exceptions to it, or at least the esteemed judges should show more flexibility in interpreting the concept of drowning and demolition Assist the realization of the right to inheritance of heirs.

The purpose of this study is to investigate the consequences of the lack of legal personality in the economic interest group. The economic development of the country depends on the investment, use of technical knowledge and technology of developed countries in the production system and access to global markets. Achieving this is through various legal ways of participating in economic and commercial activities with legislative role. In Iranian law, in Article 107 of the Fifth Economic Development Plan Law, the economic group with common interests was introduced as a new format. This group is a legal establishment formed freely between natural persons on the basis of joint and several liabilities, individuals who have come together to use appropriate means to advance their own independent activities; However, its legal personality was not recognized by law. The status of the economic interest group raises the question of what are the consequences of the lack of legal personality of this group and what is its position? Findings show that the non-acceptance of legal personality in the economic benefit group, various negative consequences can be expressed, including the discussion of ownership of achievements, property and material and spiritual assets, hesitation in survival, distrust of third parties and problems He filed a lawsuit for and against the economic group.

Unfair term is provided in our legal system in article 46 of E-Commerce Act of 2003, but not only in this law but also in other laws and regulations of our legal system, there is not a definition and criterion for recognition of these terms, but according to the international rules and principles, unfair term is a term that should cause a great inequality and the other side has not been discussed in a separate. In fact, electronic contracts with regard to their specific features need to predict the principle that respects contractual justice, as the public principles and rules of contracts. For this reason, the lack of influence of the unfair conditions in the Iranian legal system, devoted to electronic contracts, which according to the basis of the assumption of lack of awareness of poor side of the contract, we cannot rule unfair term to be void in all contracts concluded between the parties.

To establish company by one person named as " One-person company" or "Single-member company", although it is laid down at the Twelfth Directive of European Council and its subsequent amendments and Trade Bill passed in 2012, but neither Directive nor Trade Bill contains comprehensive rules about manners of decision-making, management and control of the company, contracts between companies and single member and how to prevent abuse of the company by the single member. This article by comparative method has tried to study the relationship between the company and the partnership and their distinction and present proposals to complete Trade Bill by analysis of single member company advantages and disadvantages with descriptive and analytical research method. Considering of single member company shows the current legal system in Iran, acceptance of this company more than anything else, requires the definition of a business enterprise in business law in a manner that represents discretion with the concept of partnership. Approval of company formation with one person without comprehensive rules about manners of decision-making, management and control of the company, contracts between companies and single member cause abusing of the company by the single member. So based on surveys conducted in this paper suggestions are presented to complete the trade bill.

Section (c) of Article 1 of compulsory insurance act of 2016, put under the law any accident caused by vehicles due to fortuitous events. In legal writings generally fortuitous events considered as force majeure, but this notion of fortuitous events with a lot of compulsory insurance act articles does not seem compatible. Hence, the question arises that "fortuitous events" in the compulsory insurance law, what does it mean and what is its impact? Review of legal writings show that, according to some French lawyers, Force Majeure and Fortuitous Event (Cas Fortuit), have different meaning but, in the writings of our law, such a conceptual distinction was known verbal argument and both, has studied as Force Majeure in general meaning. However, the use of such distinction between force majeure and fortuitous event is very revealing for unambiguous interpretation of compulsory insurance act of 2016. In order to illustrate the effect of this distinction, in the first part of this article, the concept of fortuitous event in general and specific and deficiencies of application of this concept is analyzed, so that in the second part, concept of fortuitous event and its effect is considered in the compulsory insurance act.

Friend of the court is a person that, provide the court, with his information and legal analysis about question of fact and law. Provide an advisory submission by a friend of the court has its roots in ancient Rome but, with the development in using this institution by common law countries, now it is not a neutral person and may has a general and indirect interest in legal proceedings.There is no institution like the friend of the court in Iranian law but, with regarding advisory submissions of legal administration of justice, we can consider this office as a friend of the court in its traditional and Roman sense. Moreover, according to article 199 of civil procedure, the judge can request any person to provide an advisory submission on question of fact and law. In addition NGOs intervene in the proceedings provided in article 48 electronic commerce code adopted 1382 and article 66 of criminal procedure code adopted 1392 is as same as new friend of the court in common law.

In tort law, Force Majeure is considered to be one of the obstacles to civil liability. Accordingly, damage caused by Force Majeure in compulsory insurance Act of 1968 was excluded from insurance coverage and law. In amending the Compulsory Insurance Act of 2008, excluding damage caused by Force Majeure of insurance coverage was removed, and the question is raised as to whether the damage caused by Force Majeure is under the purview of the law or not? In the Compulsory Insurance Act of 2016, this question becomes more important because on the one hand, this law has not mentioned about excluding damage caused by Force Majeure from the, on the other hand, any accident caused by a vehicle because of fortuitous events has placed under the law. To answer this question, we first review the concept of Force Majeure by means of conducting a comparative study in French law and then the effect of Force Majeure in compulsory insurance laws will be compared with the general rules of liability in Iranian and French law.

In ethics, it is a collection of social habits and religious teachings and independent judgments that make up the general conscience and are necessary to achieve perfection. In our legal system there are many debates about relation between jurisprudence and law with ethics, yet we do not answer to this question that what these rules and principles that cause this relation are. In this paper, we derived moral principles affecting the contracts by exploration of the verses and reports and Jurisprudential and legal resources. This method will have a great deal of importance in the accurate and secure application of the rules of the moral law in the field of contracts. Analyzing the ethical perspective, through the tools and techniques, and ethical imperatives of the fundamentals of the essential condition of the partie's intention and the consent of the parties indicate that the validity of this condition is rooted in moral principles and rules such as prohibition of possession in others property, compliance of action from intent, prohibition of coercion and violating the rights of individuals in social relations. Accordingly, the distinction between intention and consent is without reason, and lack of intent and defective consent caused by the reluctance and the mistake must lead to the invalidation of the contract.

According to the second paragraph of Article 79 of the Vienna Convention of 1980, if the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: he is exempt under the preceding paragraph and the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. The controversial issue of this Article, on the one hand, is the conditions that a person involved in a deal should have in order to be considered as a third person as mentioned in the second paragraph of Article 79, and whether general suppliers are regarded as third person or not. On the other hand, the question is whether the imposition of certain rule of second paragraph of Article 79 and necessity of double Force Majeure, are essential? It seems that regardless of narrow interpretation in favor of exporting, such regulation increases the obstacles of seller exemption and consequently, decreases the examples of exemption of seller for the third person actions before the buyer. In Iranian law, if the non-performance is Force Majeure to the seller according to the general rule, the seller can use it as an excuse before the buyer; Even if non-performance of the third person, is not actually caused by Force Majeure.

To understand the principle of freedom of contract and its moral basis as well as its source in our jurisprudence and law, we must not seek this principle in jurisprudential texts. The examination of moral principle shows that the principle is embedded in its concept. These rules are freedom of contract formation and freedom of forms. This paper just argues that the most important rule set forth in the principle of freedom of contract means freedom of forms because of the extension of subject. By exploring verses, reports, Jurisprudential and legal sources, it can be stated that the rule of freedom of forms embedded in the principle of freedom of contract is rooted in moral principles, such as general principle of loyalty to the covenant and compliance of action with intent that entered into legal system in the form of freedom of contract principle after being adjusted and reformed.

About the nature, meaning and basis of civil Arsh, both in jurisprudence and Iranian law, the debate has broken out, so that some authors considered Arsh as a non-contractual responsibility that difference between value of healthy goods and defective one, only in market price, should be the criteria to calculate amount of Arsh. Some others criticized these comments and believe in this idea that Arsh is compensations and damages that the buyer, due to defect of goods, sustains. In contrast, one group has considered Arsh as reciprocal responsibility that must be paid of the same price. About Arsh it can be said that neither it is non-fungible liability nor reciprocal responsibility and nor reparation and compensation, but it is a way to implement and perform commitments agreed in the contract. When the parties proceed to contract based on the balance of considerations value, if this obligation, for some reasons such as being the object of contract defective, is violated, so this violated commitment should be implemented again. Arsh makes agreed obligation be enforced, in relation to balancing between the value of goods and its consideration. So mutual agreement or compromise is the basis of Arsh, As if contract provisions, and parties commitment is based on the principle of equal value of considerations and seller's responsibility to pay Arsh, is contractual

Jurists believe that Arsh is contrary to the rule and they deny its entrance in other options. Civil law، only in the discussion of Khiyar Eyb، has spoken of the right to receive Arsh and has not prescribed it in other options. Most of the lawyers has the same viewpoints and tried hardly in justification of civil law in this regard. It seems that in Khiyar Eyb، Arsh is receivable when deficiency or lack of health causes a change in value and price of traded goods without loss of the whole value of those goods. A point that can be regarded in jurists’ viewpoints and civil law relates to the nature of Arsh which is the performance guarantee of the contract itself. In this regard، in any reciprocal contract as a sale، the parties undertake an implicit manner to establish equality and balance between the value of the goods and its price and implementation in contract and if each party breaks this commitment، the obligation must force him to implement this commitment. Accordingly، it seems that Arsh is not only contrary to any rule but only it can be exigible in other options in which lack of effective factor causes violation of commitment in making relative balance in value of the goods.

One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying contract by principal. In fact, documentary characteristics and the principle of independence provide an opportunity for the beneficiary to affect the exceptional and secondary function of bank guarantee as a result of an unfair demand. The question posed is how unfair demand can be prevented. By examining rules and regulation governing international trade and the draft bill on commercial law approved in 1391, it would seem that among possible solutions, such as the requirement of presenting a court judgment or an arbitral tribunal award and a statement by the beneficiary or principal indicating points in which the applicant is in breach of its obligations, the assumption of non­performance of the contract, in the event of demand by the beneficiary, is the most appropriate solution.

From a legal viewpoint، although the standby letter of credit is used in a form similar to the commercial letter of credit، but this type of letter of credit is issued in order to perform the obligation of underlying contract، not to exchange goods. Indeed، the standby letter of credit، like bank guarantee، supports the beneficiary when the obligation of underlying contract is not performed completely، whereas the commercial letter of credit acts as a mechanism to ensure the payment of price to the beneficiary. This article tries to explain the documentary and security characteristics of the standby letter of credit in order to determine: «Whether it has truly documentary feature like the commercial letter of credit?» and «whether it acts as an exceptional and secondary instrument of payment both in form and intent like guarantees?»

Lack of adequate transparency and uniformity in application of the existing criteria of international arbitration, and existence of conflicting interests in international arbitration, have led the International Bar Association (IBA) to launch a range of practical and substantive recommendations known as “IBA Guidelines on Conflicts of Interest in International Arbitration.” The present paper tries to look into the performance and achievements of the IBA Guidelines, especially when compared to other bodies of arbitration rules and regulations? The paper argues that although the Guidelines are not in tune with other rules of arbitration with respect to certain issues such as imposing restrictions on subjective standard of disclosure, the impact of non-disclosure, and the effect of the investigations on the arbiter’s decision, they can still blaze a new trail which could lead to a higher level of coordination among various procedures of international arbitration.