eisa amini

  Civil responsibility has three elements: damage, harmful act or fault and causal relationship, taking into account that all three of these elements can be dependent on custom in any way. In this article, we will examine the jurisprudential foundations of civil liability due to privacy violations using a descriptive analytical method.

This paper is descriptive and analytical and library method is used.

Ethical considerations: 

In this paper, the originality of the texts, honesty and trustworthiness are observed.

The research findings indicate that By examining the general rules of civil responsibility conceptually, as well as the theories appropriate to Iran's legal system including the two theories of fault and risk, custom as a criterion of diagnosis and reference rule is proposed in the general rules of civil responsibility. Therefore, as a legal source based on the law, custom can complement and interpret the will of the legislator and cause its dynamism, because it is not possible to adapt all instances of error to the text of the law due to its wide range and diversity.                                                        

the customary nature of civil responsibility is acceptable as a legal principle. Therefore, the use of independent customs along with laws, reliable sources of jurisprudence, fatwas of jurists and legal principles in cases of silence and absence of law is effective as a factor in improving the process of compensation for damages and preventing confusion in the judicial system. In this article, we will examine the jurisprudential foundations of civil liability due to privacy violations using a descriptive analytical method.

Without entering into the subject of standard of proof, National rules and statutes around the international commercial arbitrations prescribe the principle of freedom to determine the value of affirmative evidence and proof of facts for arbitral tribunals. The practice of arbitral tribunals has previously stemmed from intellectual backgrounds of its members and their respective legal systems. Due to the role of common law and civil law lawyers in establishment of arbitration practices and under their influences, two different criteria have been applied in standards of proof. In unification process of practices in arbitrations, the arbitral tribunals had attempted to apply a unique standard of proof and evaluation of evidence. Despite of evaluation of evidence, which has three psychological, logical, and legal aspect, the standard of proof is part of judicial epistemology and it has merely psychological and logical aspect and does not have legal element. It seems that to reach a definite standard of proof is difficult, but conviction threshold definitely has recognizable criteria. In this research, while we examine currently used standards of proof in international commercial arbitrations and analyzing the epistemological aspect to evaluate evidence, we try to determine a reasonable standard to evaluate evidence and examine how to apply and implement it in evaluation of evidence.

The resolution of a judicially unknown matter requires acquiring knowledge about the external facts affecting the relevant case. The judge may go through a psychological, logical, and legal process for finding external facts to achieve conscientious persuasion. The judge also needs to know the basics and steps of forming a reliable belief before reaching a reliable belief. During the process of gaining a judicial belief, the judge does not need to psychologically and logically follow special regulations, but is only required to observe the general principles and rules of epistemology. This stage of proceedings is actually a matter of epistemology. This analytical-descriptive study aimed to analyze the rules of the epistemology of proof in civil proceedings, explores the ways to achieve a valid judicial belief and the factors affecting it from psychological and logical aspects, and proposes a criterion for measuring the validity and truth of judicial beliefs. The judge uses declarative sentences, which may be either true or false because of their nature, to express his/her knowledge of relevant matters as a form of judicial analogy. Such declarative sentences indicate the judge’s mental image of disputed issues obtained through a process of research and analysis for fact finding. According to Article 199 of the Civil Proceedings Law, the judge is obliged to try to discover the truth and form the knowledge and belief consistent with the outside world. The judge’s research scope and results are determined and announced based on the judge’s basic and acquired beliefs. Such beliefs are formed in the judge's mind and psyche under the influence of the concepts existing in his/her mind as well as his/her skill in mental imagery and application of logical arguments. However, intellectual background, prejudices, emotional factors, or intuitional knowledge can affect the formation of judicial beliefs in some cases. The judge's final belief consists of several partial beliefs, all of which should be justified and honest to cause the formation of a correct and realistic belief. Judicial beliefs must be well-founded and strongly correlated with the outside world. Since evidence is the connection ring of this correlation, a justified belief should be evidence-based. Judicial beliefs must be established based on logical thinking and reasoning because this process can reduce the risk of error or fraud in the induction of unreal matters. Truth refers to the conformity of a belief with the outside world's facts, and the judge can achieve a true belief only through pieces of evidence. Nevertheless, this is not possible in all lawsuits due to the difficulty of access to pieces of evidence and their uncertainty in achieving the pure truth about disputed facts. Therefore, judicial beliefs cannot be investigated from this viewpoint. Considering the importance of this issue, articles 3 and 4 of the Civil Proceedings Law, which emphasize the necessity of hostility settlement and encourage the use of heterogeneous tools in terms of fact-implying probability, expect appropriate and reasonable, not pure, conformity of judicial beliefs to the outside world. Although one of the important tasks of judges is to try to achieve judicial beliefs in pure conformity with facts, there is no definitive criterion to verify the truth of judicial beliefs because of the limited access to pieces of evidence and the varying degree to which they imply facts in the outside world. It can be hence stated that the coherence of beliefs constituting a judicial belief is a practical and reasonable criterion to measure the apparent truth of that judicial belief. The partial beliefs obtained in the fact finding process must create a special mental state for the judge to convince him/her that external facts exist. As a threshold for deciding about the verification of facts or “standard of proof”, this mental state is influenced by two factors: confidence and caution.

Article 489 of the Iranian Civil Procedure (ICP) provides that an arbitration award in conflict with constitutive laws will be null and void and unenforceable; however, neither the ICP nor any other act established the concept and the instances of such laws and the scope of judicial review or supervision over their enforcement. Under these circumstances, the best approach to identify constitutive laws is through a case-by-case approach. A justice should examine what law has been violated by an arbitrator and whether or not this law, based on the governing situations, directly or indirectly results in limiting or extinguishing a right. A court’s review of this matter may take place upon service or enforcement of or appeal to an arbitration award. The review is only a brief one over the first two stages but takes a more complete form over the third stage. However, even in this third stage, the court may not intervene into questions of fact addressed by the arbitrator, except for special cases.

Internet businesses have a large share of global and domestic markets, which are both small and large markets, and they operate from any stratum in Internet businesses, which can be small and limited activities or extensive activities such as company activities and or international holdings. With the increase in the activity of internet businesses and the growth of their market share, the possibility of anti-competitive actions by some of these businesses or the claim of anti-competitive practices by competitors or other persons will increase. In this situation, due to the specific requirements of the e-commerce field and its emerging nature in Iran, the application of competition law rules on the performance of internet businesses will face new challenges. This article, with a descriptive and analytical method, tries to examine the concept of ethics and philosophy of ethics, business ethics, the differences between ethical requirements and legal requirements, the concept of advertising and its importance, and ethical issues in electronic commerce from the perspective of protecting consumer rights and examining the status of protection It has the rights of consumers in advertising in the law of electronic commerce. The results show that since it is desirable to improve the efficiency and well-being of consumers in any market, in principle, competition regulations can be applied in all markets, unless a specific market is excluded from the scope of these regulations for a justified reason.

The approach of modern international documents such as DCFR, PELC, OHADA, UPICC, CISG in fulfilling the obligations is to increase the probability and chance of fulfilling the obligation by the obligor by accepting multiple obligations and the possibility of choosing one obligation by the obligee or the obligee to fulfill the obligation. In a function called the alternative performance of contractual obligations. But these multiple obligations are the same institution of voluntary obligation that has a long history in most European to Arab countries and is now emerging in new documents as an alternative performance. The alternative performance in Iranian civil is faced with the obstacle of invalidity in not determining and ambiguity of the transaction, which seems to have not been properly understood from these conditions. However, by analyzing the content and comparing it with a similar concept such as an alternative transaction and in terms of conditions such as the ability to diversity and plurality in the subject of the obligation and how to determine the authority in the implementation of the obligation can be achieved Regardless of the synchronicity of economics and law, this new look is necessary.

The Way in Which different legal systems deal and interact with arbitration has varied over time. Earlier, and during the newborn of arbitration, the general approach was at extensive intervention of courts in arbitration, and reduces arbitration to an exeption in legal system. Now, with growth and attention to arbitration, courts intervention in many cases, replaced with support and protection from arbitration and national courts reduces your intervention to parties demanded in limited items. supply of arbitration goals and depelopment of attention to arbitration is on the mortgage of redusesd supervision and intervention of national courts and limit to exeption items as breach of public police. so it must be accepted respect for the sovereignty of the will require that in arbitration non-intervention is principle and items of intervention to be exceptional, limited and tender. in this passage systematize of intraction and collision of courts and arbitration is inescaple and protection of the court. that way to be categorized items of absolute void of arbitral award and be accepted court intervention in them and other items that arbitral awards is voidable and personal be subject to defendant will at a certain time and court don’t be offended that, at the implementation stage.

Asian Infrastructure Investment Bank is a multilateral development bank; Headquartered in Beijing; The bank's mission is not only to preserve the status que but also improve social and economic situation in Asia and beyond, thus enhancing the market, services, communications, and ultimately the revitalization of the Silk Road. The Government of Iran also became a member of the Bank by virtue of the single-clause bill of the Law on the Membership of the Government of the Islamic Republic of Iran, by accepting the Articles of Agreement of the bank,. The important point of this law is its limitations, which are debatable from a legal point of view. Pursuant to Note 2 of the Law on Iran Membership in the Asian Infrastructure Investment Bank, observance of article (77) and (139) of Constitutional law of the Islamic Republic of Iran, as the case may be, In order to amend the Bank's Articles of Agreement, the subject of Article 53 and to refer to the arbitration subject to Article 53 is required. There are ambiguities as to whether such a condition is in principle permissible or not, as well as the validity of this restriction, and in the event of a dispute whether the court is bound by this condition or not. This article deals with these issues in a Descriptive Analytics manner. The results show that this restriction cannot be invalidated, but if the arbitration appeal is not approved in accordance with domestic law, dispute resolution may face serious challenges.

Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention Of The Parties ,Having No Alternative Must To Interpret Of The Content Of Arbitration Clause ,Upon The Principles And Rules of Interpretation Of Contract .But Legislator In Some Cases Imposed On Will Of The Parties Of Contract ,Accepted Of The Arbitration Clause Or Referring Of Claims To The Jurisdiction Of Arbitral Tribunal And Contractual Nature Of Arbitration Clause Has Been Extinguished Or Limitation .In These Cases If Content Of The Arbitration Clause Faced With Ambiguity And Necessitate Of Interpretation, Arbitrator Must Intended To Detection Of The Legislator Will ,Upon The Principles And Rules of Interpretation Of statutes And Discussion Of Detection Of Natural Will And Common Intention Is Ceased .In This Article Interim Of Making Clear Nature And Criterion Of Distinction Of The Compulsory Arbitration Clause ,Causes And Grounds Of Independent Arbitration Clause Necessity From Basic Contract Present By Application Analysis And State Of Some Cases In The Law Of Iran.

The Legislator does not provide any specific structure and definition for awards in the context of domestic arbitration. However, Article 482 of Code of Civil Procedure emphasizes on the requirements of reasoning and justifiability in relation to arbitral awards. Therefore, from the wording of this article, it is implied that this issue is a basic element of arbitration award, and arbitrators have the same obligation as judges in this respect. Having said that, there is no specific rule defining what a reasoned and justifiable award means. Moreover, no sanction has been provided in the event of failing to meet these requirements. For this reason, doctrine and judicial cases are ambiguous. Some lawyers believe that the lack of these requirements would lead the award to be voidable. However, by making reference to article 489, others state that this matter is not a cause for voidability of award. Itseems that the lack of reasoned and justifiable contents may cause invalidity and voidability of award.

According to article 1 of civil liability code, the liability is based on fault, but in civil code it is not assumed as a necessary element for civil liability. However, fault is not a unique base of Iran’s law, the role of fault in civil liability is not deniable. Fault in fault-based liabilities result in tort and in restrict liability it makes a new way for injured person to claim. In liabilities that fault is supposed by legislator, a plaintiff has no need to prove the fault. In common law system, courts sometimes voted by strict liability and in some cases fault is considered as a necessary element. Additionally,whena defendant commits an inconsiderable negligence, there is an authority for judge to reduce the amount of compensation and this the way that fault effects on compensation.