hamid afkar

The realm of insurance is intricately intertwined with the protection of societal interests, particularly evident in the context of traffic accidents. Recognizing the significance of this intersection, legislators have transformed insurance contracts from mere agreements into legal-contractual frameworks. The Compulsory Insurance Law of 2016 introduced numerous provisions and judgments that defy easy justification solely based on the principles of free will. Among these provisions is Article 19, which stipulates that "Any negligence or fault of the insurer or their representative in issuing the insurance policy does not remove the liability of the insurer." This article explores the unique civil responsibility imposed upon insurers when they fail to issue a valid insurance policy, transcending conventional contractual boundaries. Beyond its apparent simplicity, this research delves into the foundational aspects of insurer liability arising from negligence or fault in issuing insurance policies and assesses the extent of such liability when breaches occur. A review of existing literature reveals that Article 19 of the Compulsory Insurance Law (2016) has not received significant attention in legal debates. Researchers have not provided a clear definition of the implications of insurer errors in policy issuance or the underlying basis and scope of insurer responsibility. This lack of comprehensive analysis is partly attributed to the article's apparent straightforwardness, which conceals the complexity of the assumptions it entails. Consequently, this study addresses these gaps by examining various assumptions surrounding insurer behavior. This research aims to answer critical questions concerning insurer liability in cases of non-issuance of insurance policies, including whether punitive measures can be imposed on negligent insurers in addition to compensation. It also delves into the choice between pursuing compensation for insured losses under legal or contractual obligations of the insurer. Preliminary findings suggest that insurer responsibility, in cases of non-issuance or violations in policy issuance, extends beyond mere compensation and may include punitive measures against the insurer found at fault. Moreover, the compensation for damages resulting from negligence or fault in issuing insurance policies can be argued within both contractual and legal frameworks, depending on the specific circumstances. This study primarily aims to identify the behaviors leading to insurer liability as outlined in Article 19 of the Compulsory Insurance Law (2016) and analyze the rationale behind this liability in accordance with the legislative intent. It further evaluates the nature and extent of responsibility envisaged by the legislator, drawing insights from Article 19. The research findings underscore that Article 19 of the Compulsory Insurance Law (2016) represents a novel approach aimed at safeguarding policyholders acting in good faith. This provision not only obligates insurers to provide the requested insurance coverage but also distinguishes between third-party and driver insurance policies in assigning liability to erring insurers. Importantly, the scope of default liability under this article extends beyond mere compensation to encompass disciplinary consequences for insurers. While the phrase "does not remove the liability of the insurer" may appear simplistic, the study reveals the nuanced nature of insurer liability. In instances where an oral agreement between the insurer and the insured remains confined to preliminary negotiations without forming a binding contract, the insurer's civil liability is restricted to damages incurred during these negotiations. Conversely, when a contract is established with flawed elements, legal obligations can be imposed on the insurer, with legal remedies available to address any shortcomings in the agreement. Negligence in incorporating the legal privileges of the insured and injured parties within the insurance policy can trigger legislative consequences, filling voids in contractual conditions with the insurer's responsibility to compensate injured parties according to the minimum requirements of the compulsory insurance law.

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.

The divergence of opinion concerning the issue of jurisdiction between the prosecutor's office and the court concerning initiation of preliminary investigation is a challenge about which the law is silent and despite the fact that it has not been given special attention in research sources, there are many differences in this regard in judicial precedent.In this research, an attempt has been made to delineate the position of courts in the process of preliminary investigation and to examine ideas that can be proposed concerning the disputed issue, by a descriptive-analytical method, using certain decisions found in the judicial precedent.In conclusion, an effort is made to reduce discordance in judicial decisions in this area by suggesting a suitable method.In this regard, opinions regarding the absolute or relative compliance of the prosecutor's office with the court in conducting preliminary investigations can be presented. The unconditional acceptance of the decisions of the court by the prosecutor's office, which is due to the consideration of the difference in the position of these two bodies in the handling of criminal cases, and the fact that the prosecutor’s office is an accompaniment to the court, is more compatible with the hierarchical perspective and the joint position of the prosecutor's office and the court in the field of preliminary investigations and the preservation of the judicial independence of the investigator to determine jurisdiction strengthens the perspective that upholds relative subordination of the prosecutor's office to the court. Accepting the latter point of view, it is of particular importance to specify the body that settles disputes, and legal criteria and judicial expediency justify the acceptance of the provincial appellate court as the body empowered to do so.

 The fundamental differences between the characteristics of the penal system and the civil one have led to the formation of clear boundaries between criminal and civil law; But the independence of these two branches of law is not absolute in all areas. Criminal claims for damages, which are formed in the shadow of the insurance system, have freed themselves from the monopoly of criminal rules and have maintained the tendency to be related to civil lawsuits for damages. Identifying this link requires an analysis of the purpose, nature and legislative and judicial approach to these claims, which is discussed in this research.

 The method used in this research is descriptive-analytical method and the decisions in the judicial procedure have been used as study documents.

 The penal system has established its main position through punishment and rehabilitation, but the idea of compensation has formed the main foundation of the civil system. The difference in the goals of these two systems has made the nature and special rules of criminal and civil lawsuits surround and influence the Judge's views and thoughts of each area to infer responsibility. However, accepting the absolute independence of civil and criminal compensation claims in the insurance system causes the breakdown of the order of the general rules of responsibility in this field of compensation. In addition to the ability to extract the purpose and nature of the unit from both types of litigation, finding the single effects and rulings to identify the insurer's liability in civil and criminal litigation is not against the rule. The resources of the trial and the guarantee of enforcement of both areas are also based on a single system, the main theory of which is the rapid and complete compensation of damages in a trial.

 Finding a unit purpose and nature in civil and criminal lawsuits in the insurance system provides the possibility of sharing rules and identifying a single basis for liability. The slight difference in the procedure of the civil and criminal authorities is because of their special spirit. The privacy of the nature of the lawsuit and the dominance of the purpose of compensation in both lawsuits lead to the inference of a Joint performance guarantee, and the theory of correlation between civil and criminal lawsuits in the insurance system replaces its fundamental distinction.

Being the litigant of the insurer together with the responsible of the accident is legally and economically justifiable for the injured party, but explaining the responsibility of multiple defendants to pay a single debt is one of the problems of the judge in issuing a verdict; In such a way that in some cases the subject of litigation to one of the defendants is silenced or the litigation is completely rejected. The purpose of this study is to explain the position of the insurer and the person who caused the accident in the lawsuit with descriptive and analytical methods, in addition to recognizing the need to decide on each of them, to explain their responsibility in the sentence and to provide logical theories for compensation. The inference of the independent or collective liability of the insured and the insurer is based on various reasons. Sharing liability between the insured and the insurer has no logical or legal basis, and the liability of the insurer's collateral does not serve the purpose of better compensating the injured party. Court waiting for invoking the injured party to the insurance contract also does not solve the problem of explaining the liability of multiple defendants, and differences in the type and amount of liability remain. Recognition of joint and several liability of the insured and the insurer in the Compulsory Insurance Law adopted in 2016 is compatible with the aim of better guaranteeing the injured party, and some law bases and legal justifications justify the need for the theory of joint and several liability of the insurer and person who caused the accident.

The foundation of the driver compensation system has been established in legal systems based on logical, social and economic interests. On the other hand, paying attention to the legal security and financial resources of the insurer and the bodily injury indemnity fund shakes the foundations of the idea of absolute protection of the victims of traffic accidents. Exaggeration in identifying the responsibility of these two social institutions in relation to compensating the driver who caused the accident will weaken the efficiency of the insurance industry and reduce public resources. Identifying the liability of the insurer and the bodily injury indemnity fund in the driver compensation system for damages before and after the adoption of the new insurance law requires reviewing the law, legal and economic foundations in order to achieve the goal of protecting the victims of traffic accidents and taking into account the social and financial interests of the insurer and the fund, to provide an effective interpretation of the idea of compensating the driver who caused the accident.

The method used in this research is descriptive-analytical.

Law and legal justifications in the new insurance law indicate the obligation of the insurer and the insured to conclude a driver accident insurance contract. Although driver accident insurance is independent of third party insurance, the violation of the legal duty in issuing driver accident insurance by the insurer imposes a mandatory imposition of legal obligations on the insurer. Utilizing the foundations of the social welfare system or considering the fault of society as the broadest organization, justifies the responsibility of the government and society to the driver who caused the accident without insurance, and the bodily injury indemnity fund as an alternative to insurance is the most effective source of compensation. It does not make sense to extend the liability of the fund and the insurer to the uninsured driver for damages before the adoption of the new insurance law, and the resources of these two institutions are severely lacking.

Law and legal basis justifying the liability of the insurer and the fund According to the new law, does not include the past bodily injuries of the driver who does not have accident insurance and in addition, the lack of economic efficiency and rational justification excludes the insurer and the fund from the resources of the driver compensation system causing the accident. Keywords: The driver who caused the accident, Driver Accident Insurance, Insurer, Bodily injury indemnity fund.

Equality between man and woman rights has long been considered by jurists and human rights communities. It has been supported from the perspective of human rights and economic and social analysis. The Iranian legal system, following the well-known opinion of Imami jurists, has not accepted the idea of absolute equality between men and women. Going beyond the idea of the difference between man's and woman's Diya with the legislative approach in the Islamic Penal Code and the Compulsory Insurance Law has been adjusted. The criminal and civil judicial authorities have not reached a single procedure in dealing with the issue of compensating the excess of woman's Diya overpayment. The dispute in the judicial procedure for the insurer's sentence to compensate the excess of the woman's Diya requires a correct analysis of the nature of the ransom in the laws. Paying attention to the nature of the woman's Diya overpayment to the extent of the man's Diya and recognizing the judicial and legal requirements in the issue of woman's Diya overpayment by the insurer, will direct and regulate the judicial procedure in issuing verdicts against the insurer in accordance with Article 10 of the Compulsory Insurance Law approved in 2016 and the insurer will be aware of its rights and duties.

Descriptive – analytical method was used in this research. Some of the judgments issued in this area are used as study documents to address the differences in jurisprudence, and to clearly portray the challenge of jurisprudence. It is possible to present the result by analyzing these opinions and advisory theories.

The surplus of the woman's Diya up to the man's Diya has a compensatory nature and the scope of the insurer's payment in Article 10 of the Compulsory Insurance Law is limited to traffic accidents. The idea of gender equality and economic efficiency of men and women in society and the irregularity of the payment of the fee for criminal proceedings implies the exemption of the request for compensation of the surplus of the woman's Diya from the civil proceedings in the criminal authorities. Also examination of judicial procedure and legal requirements raises the need to claim such damages from the insurer but simply requesting a surplus of Diya from the insurer without filing an independent lawsuit and paying the court fees in accordance with the financial claims is sufficient for the lawsuit to be considered by the insurer and a ruling issued. The method of issuing a criminal court and legal court order varies depending on how the lawsuit is filed. The conviction of an insurance company to pay excess of the woman's Diya requires the observance of certain court procedures. Asking the insurer for excess of the woman's Diya or not requesting it creates an independent obligation for the judge, which needs to be analyzed depending on the method of filing the lawsuit and the claim.

Despite the unity of the nature of excess damages on the Diya in the Islamic Penal Code and the Compulsory Insurance Law adopted in 2016, the origin of the insurer and the bodily injury insurance fund to compensate this amount are not the same and the scope of the insurer's obligation to pay the surplus of the Diya in the Compulsory Insurance Law is specific and limited. The method of filing a lawsuit against the insurer and the guarantee of the notification of the court hearings and the court decision to the insurer depends on his role in the lawsuit. It is possible to include the surplus of the woman's Diya in the court judgment, and the ability to enforce the verdict against the insurer depends on the method of filing a lawsuit and issuing a sentence. The injured party's request for payment of the surplus of the woman's Diya by the insurer before the end of the trial indicates the obligation of the criminal judge to issue a sentence against the insurer, but if the injured party neglects to demand his right directly from the insurer, the court has no obligation to issue a sentence and while writing the sentence of Diya, it only refers to the insurer's responsibility to pay the surplus based on accident insurance, which is not enforceable directly against the insurer.

Paying attention to the changes of time, place and gradual conventional circumstances of every society is necessary. One of the issues raised in Imamia jurisprudence is that the impure objects are not capable of being owned; previously confirmed by the custom of society as well. Due to economic, cultural and social changes, this view does not remain as strong as before and in certain cases, in addition to the change of the prevailing social attitude, the Islamic jurists have also changed their opinion as to the capability of these objects to be owned. As regards pet dogs which are among impure objects, it may be said that given the social changes, their customary capability to be owned is uncontroversial; however, the qualification of halal (legitimate) profit is not still imaginable for them and this has led to different approaches to protection and non-protection of the rights of owners of pet dogs and has also provided the basis for the issuance of controversial decisions in the jurisprudence of courts. It seems that considering the customary capability of these objects to be owned, which is verifiable from the viewpoint of law and some sources of Islamic jurisprudence, as well as Haghe Ikhtisas (a special right resulting for example from possessing something) that Islamic jurisprudence recognizes for the owners of these impure objects, the protective approach should be adopted and the effects of this protective approach (civil and criminal responsibility) should be accepted.

The expansion of arbitration rules and the increase in number of claims in insurance disputes have magnified the need for the acceptance of arbitration in this area more than ever. Although different prohibitions and limitations exist, the acceptance of the general principle of arbitrability reinforces the mindset where arbitration is allowed in insurance claims. Despite this, the legislator has not explicitly mentioned arbitration in the law on "compulsory third party liability insurance for motor vehicle accidents", and this silence and the existence of certain rules, has led to doubts about the acceptance of arbitration in such claims. Reservations regarding the issues that may arise in public order due to arbitration, the failure to mention arbitration in the provisions of the Compulsory Insurance Law, and the vagueness of some of the provisions of the law have led to the ambiguity of the arbitrability of insurance claims. Nevertheless, these doubts can be resolved if a clear distinction between civil liability and criminal liability insurance coverage is placed. Once this happens, there is no obstacle stopping the acceptance of arbitration. In this study, the descriptive and analytical method was employed. Furthermore, the legal limitations and prohibitions in referring insurance claims to arbitration, and the advantages and disadvantages of accepting arbitration, have been analyzed.

Article 50 of the Compulsory Insurance Law approved in 2016 is based on materials such as preventing the issuance of conflicting votes, reducing the number of cases, identifying false lawsuits and preventing the objections of the judged case. The compliance of this article with the provisions of civil and criminal procedure indicates the difference in the degree of involvement of the insurer in criminal and legal cases. The management of insurance claims plays an important role in the economic efficiency of insurance companies and the reduction of lawsuits against them. The management of these cases requires the effective involvement of the insurer in the proceedings, which is not an easy task due to the complexity of the rules of civil and criminal procedure. Article 50 of the Compulsory Insurance Law approved in 2016, as a special establishment, considers a special right for the insurer to intervene in legal and criminal cases, and in collecting to this regulation with the formalities of civil and criminal procedure, it should be said that the insurer intervenes in the management of legal and criminal cases, Is possible under the supervision of a judicial authority, and if the insurer claims an independent right, it is obliged to file a lawsuit in accordance with the regulations.

many of the harmful accidents are considered in order to be accompanied by bodily injury in the criminal courts and pay attention to the status of parties involved in losses, insurance interests and the judiciary to provide preparation of losses for the least amount of time and cost. History of judicial procedure shows that in some cases, such as death of the accused, the non-occurrence of a crime and … the criminal court has closed the case and the parties of the accident are referred to file a claim for damages. the present study is done in order to clarify the new approach of the legislator in compensation faster and less costly of bodily injuries and by examining the effect of Clause (1) of Article 85 of the Code of Criminal Procedure on the insurer, the theory of compensation for an accident in the course of a proceeding shall be strengthened in order to avoid duplication of claims and imposing costs on both sides of the case, insurance and the judiciary.

the method used in this research is descriptive - analytical and the existing decisions in the judicial procedure as the study documents will be used.

in addition to some of the disadvantages of the widespread interpretation of Clause (1) of Article 85 of the Code of Criminal Procedure, the analysis of economic and social consequences of the provision requires the necessity of a single investigation into the consequences of an accident and the new procedure of criminal courts also tends to this direction.

The scope of Clause (1) of Article 85 of the Code of Criminal Procedure in addition to the treasury, can be generalized to the fund for physical damage and the insurer. Also, by including the culprit and non-culpable injuries in the accident, the necessary grounds should be provided for the compensation of injuries caused by accident during a hearing.

In realization of the damages, the time is presumed as a description of the result and can’t refer the result to the cause, since there would be in every instance of the time the possibility of realization of a result with the presence of the conditions and causes and also with the absence of impediments. Though failing to establish this causation, the damages may be transferred to another period of time and the interference of some factors may accelerate or postpone the realization of the damages.
The aforementioned factors in which cause the result to be ascertained whether immediately or gradually before the due time are assumed as accelerating factors.
having considered this assumption that the damage is actually the effect of a specified cause and that its realization because of that cause would be conclusive but owing to the interference of the new factors, has been ascertained without involving that specified factors and before the due time, some authors have exempted the accelerating factor from the liability; while the rules of civil liability confront this idea with serious problem.