جستجوی مقالات مرتبط با کلیدواژه "محدودیت ها" در نشریات گروه "فقه و حقوق"

The head of state - the country, the highest political and administrative authority in all countries, including the three countries under study (Islamic Republic of Iran, the United States of America and the French Republic) is considered in this article. Since for any official (such as the head of state - country) there may be causes such as death, dismissal or resignation, etc. so that the responsible person cannot perform his duties, in the science of public law a tool called "administrative sponso rship", it is envisaged that in case of administrative sponsorship in order not to leave the position of the responsible person, this tool can be used to fill his position. Thus, the laws of different countries provide for such temporary successors to various political officials, including the head of state. In this article, in a descriptive-analytical manner, we examine the commonalities and differe nces between the causes, the officials elected for tenure, and the limitations of the term of office of the head of state-government in the three countries of Iran, the United States and France, and examine them. The finding of the present article is that there are many problems and shortcomings such as lack of reference for recognizing the temporary incapacity of the Supreme Leader, council leadership sponsorship, lack of specific time limits during the leadership sponsorship and political restrictions for the leadership sponsorship in the administrative sponsorship system. There is a head of state-government in Iran who should be amended or removed by reviewing the Iranian constitution.

Legislation under the Constitution of the Islamic Republic of Iran (Article 71) and France (Article 34 lies within the jurisdiction of the legislature. However, under the constitution, this right of legislation has essential restrictions. Article 75 of the Iranian Constitution and Article 40 of the French Constitution formulate the most important restrictions. This constitutional principle does not allow the Legislature to pass proposals and suggestions that will reduce public income or increase public expenditure.In past years, many questions about the role of the Islamic Consultative Assembly in the implementation of Article 75 have been raised and led to conflict and disputes between parliament, the Guardian Council and Executive Power. However, in France clear rules and proper mechanism in this regard has been devised which prevent the occurrence of such problems. Examining the French approach can prepare the ground for removing ambiguities in Article 75 of the Iranian constitution.Considering the necessity of the comparative study on Article 75, the central aim of this paper is to study the mechanism followed in implementing Article 40 of the French Constitution. This study shows that the French legal system has provided certain rules that determine the parliamentary jurisdiction by using expert opinion and thus does not allow the proposals in conflict with Article 40 to be presented in the Parliament.

The acceptance of the principle of publicity of the trial as one of the fundamental examples of a fair trial in the European system of human rights has its roots in the procedure of inquisition courts in the Middle Ages. Lack of publicity of trials and violation of the rights of the accused in these courts has given rise to this inference in European thought that the secrecy of the trial and the disregard for the rights of the accused are considered to be two interrelated cases. Accordingly, a public trial is justified by this argument that public oversight will minimize the grounds of injustice in the criminal justice system. Therefore, achieving this requires conditions and mechanisms that give personality to this principle and make it consistent, because the right to a public trial is a composed concept and can be decomposed into its different components, to understand and explain the true and precise meaning of this right, the sum of those requirements must be considered. However, in certain cases, the publicity of the trial can, like any principle, have exceptions and legal limitations. Therefore, in this article, we have tried to study the European Court of Human Rights rulings and examine the case law of this institution concerning the requirements and restrictions of public trial before national courts with a descriptive-analytical approach. The results of the study show that, in general, the European Court has been able to satisfy the requirements related to the actual realization of the public trial with an authoritative action and a procedure far from hesitation and to adjust its limitations in line with the rule of the principle of publicity of the trial

Today, the concept of economic freedom as one of the necessary conditions for achieving sustainable growth and development has particular importance, so understanding the concept and components of the subject, as well as the limitations and obstacles imposed on it, are essential for any legal system to achieve economic growth and prosperity by reducing or eliminating barriers. Therefore, in the present article, the quantitative limitations of the principle of freedom of trade as one of the components of economic freedom are explained by descriptive-analytical method, and the approach of the Iranian legal system was examined through scrutiny of laws, regulations and annulments of the General Assembly. The result is that the Constitution and related ordinary laws, such as the Article 44 General Policy Implementation Law, the Development Plan Law, the Export and Import Law, and the Customs Law, have been legislated in order to support the development of foreign trade, facilitate the processes of the licenses, reduced customs formalities and also the removal of non-tariff barriers. Contrary to the legislative approach, the executive sometimes creates or expands trade restrictions and prohibitions through regulation, but The Administrative Justice Court, as the body that oversees government approvals, relies on the rule of law, often with a narrow interpretation of the legal restrictions and citing to general legal principles such as the acquired right have protected the freedoms of individuals.

Although the principle of openness of the trial plays a privileged and significant role in the realization and guarantee of a fair trial, it is nevertheless restricted in international human rights and domestic law instruments of Iran. In this regard, the main question of the present article has been to what extent the limitations and exceptions of public hearings as well as the scope of these exceptions and the procedures for their application in the Iranian legal system comply with the criteria accepted by international instruments? The research findings show that the examples of public trial exceptions in Iranian law (including public order, public decency, parties' claims in private lawsuits, preliminary investigations and juvenile litigation) - despite some differences and challenges - are largely consistent with its examples. Complies with international human rights instruments. Regarding the realm of exceptions to public trials, although the constitution absolutely emphasizes the need for public and political trials to be public, with the passage of the new Code of Criminal Procedure, these crimes are also within the realm of exceptions to public trials. Regarding the formalities of holding the court in private, the reference to the new Code of Criminal Procedure on the need to issue a decision to make the trial closed - despite some legal problems - has brought the Iranian legal system closer to international standards.

Growing increase of transnational criminality, especially in the regional level, introduces its related legal and criminological issues. With a definition of regional crimes, that is organized and profit-driven criminal behavior affecting two or more countries by its commission or effects or transnational criminal behavior being committed in a given region, their causes and solution would be a noticeable subject with decisive national and regional strategic implications. To this end, This article firstly conceptualizes regional crime and doing so explains characteristics of this crime through fluidity of the criminals and the pandemic criminal activities, and thus analyzes regional crimes with a etiologic and solution-finding point of view. This analysis with considering factors that exacerbate the aforementioned characteristics defines political, economic, social and penal models indicating structure of opportunity, constraint, and thus unbalanced control. Therefore, application of preventive strategies and reinforcement of transnational/regional penal capacity, with reduction of opportunity and increase in constraint, would result in control balance.

The main function of a rahn (the property made as security for a debt/loan) contract is to reassure the creditor about the receiving his money. According to the view of most of Imamiyah jurists, which is also followed in the civil law, there are two restrictions under the titles of necessity of receiving the receipt of Marhouneh (the loaned property) property and the necessity of the item to be determined for a rahn contract. In some cases, these restrictions seems traditionally unjustifiable and in practice has created problems for economic activists using this institution. The question of the current study is what are the principles of determining these restrictions and how can these principles be criticized and the theory of non- restriction be strengthened?          Through examining the principles of most of Imamiyah jurists view, it is concluded that there are several criticisms of the views on the restriction of the rahn contract. In general, those who believe that the rahn contract should not have these restrictions are right. Therefore, since the views of critics are both jurisprudentially and analytically stronger and can better meet everyday needs, it seems that the legislator can abandon its current approach and reform the civil law in order to eliminate these restrictions.

The right to public health is one of the most important rights of urban dwellers, which is apply by municipalities and city managers. Coping with contagious diseases, which are examples of this right, is accompanied by measures such as compulsory quarantine, restrictions on traffic, business and mosquitoes, and compulsory treatment in cities. These actions are in conflict with other urban rights, such as the right to freedom of movement, privacy, and so on. Depending on the different models of governance that govern their performance, municipalities address this conflict of urban rights by taking different measures. With the emergence of corona disease in 2020, the issue of imposing urban restrictions and violating the principles of citizenship rights in cities with the spread of the disease has led to the emergence of theories on how to exercise public health rights in cities, considering the lack of accountability for models derived from the model. Became democracies. In this study, an attempt has been made to examine the duty of municipalities in dealing with infectious diseases and their adoption measures, to answer these questions: What is the conflict between the right to urban health and other urban rights? And secondly, with what solutions can these conflicts be resolved, and on what basis are the explanatory approaches of these solutions based?

Limited liability of shareholders of corporations is the primary principle of corporate law in most countries. Limited liability is however subject of debates by law and economic scholars. The research method applied in this research is theoretical analysis and the research approach is non-normative analyzing the possible solution without considering status que in search of most efficient solution. Limited liability is not efficient in terms of economic analysis of law, particularly in the context of company group, which is the main actor of the today’s world. The externalities created by abuse of company form exceed its benefits. Common law doctrine of veil piercing sets aside the veil of corporation and holding shareholders personally liable for company debts in case of abuses by shareholders or lack of observance of company formalities. This doctrine can modify the effect of the externalities and reduce moral hazard created by limitation of liability. Such theory or similar mechanisms, except with special regulations related to the tax and banking system, do not exist in Iran legal system. Therefore legislation in this regard is recommended.

Concluding of the arbitration agreement is based on the principle of party autonomy but this principle is restricted by public order. In other words, although the arbitration agreement is mainly based on the private agreement of both parties, it is not correct that the common will of both parties have an absolute authority to refer any disputes to arbitration. Sometimes the law forbid or restrict the reference of some disputes to arbitration, and the reason for these are based on the basic concept of public order and interest; thus, the settlement of some disputes are merely on the authority of the courts and if the arbitrators proceed to issue an award about such disputes, that award will not be applicable. This article will outline the opinions of Iranian scholars with regard to the effect of public policy on the arbitration agreements as it could help to understand the floating essence of public policy. In addition, this article set forth to analyses the most important cases in relation to arbitrability which are the Art. 139 of the constitution, bankruptcy claims, family disputes, intellectual property claims, securities claims and also labor and employment contracts.

Since the health of the human community is very important, and on the other hand, free trade has undeniable benefits, there must be a balance between the freedom of trade and the health of the community so that people benefit from both. Therefore, in order to minimize potential conflicts between commerce and health and maximize their benefits, there is a need for greater interaction between business and healthcare policymakers in mutual awareness of the policies of the parties, as well as the establishment of codified principles to support both of them , Next to each other.
This article attempts to examine the important and fundamental agreements of the World Trade Organization and the importance of the public health for the World Trade Organization.
In light of the review, it seems that the World Trade Organization has tried, while respecting its principles and objectives, such as free trade and non-discrimination, to take into account public health and, in its agreements, The conditions for countries to limit free trade, if necessary, to protect the public health and health of their societies.

The criterion of the democratic system in the international community , as set out in the Universal Declaration of Human Rights , is , on the other hand , a manifestation of the civilization of the nation-state and , on the other hand , a supreme necessity based on the freedom of civil society of the countries , but the expression of freedom in various forms , That freedom of the press generally requires the creation of a desirable atmosphere of rule of law . But the position of the press is in keeping with the constraints on the international human rights system . Freedom of the press in the Iranian legal system was first recognized in the Constitutional Constitution , and then , like the British legal system , the law was restricted by the law . The present article seeks to investigate the dimensions of the right to freedom of the press and its constraints in the light of human rights doctrines . The purpose of this research is to expand the literature on the rights of the press in the field of international human rights and to pay attention to the limitations , damage and challenges facing its implementation .

Some large areas of Iranian lands are Mawat lands[1] which are of great economic value. In accordance with traditional fiqh and taking some hadith and narration-based arguments such as «من احیا ارضا مواتا(میته) فهی له»[2] as a maxim, anyone can make mawat lands his own as much as he wants provided that he restores them. Regardless of social requirements and the necessities of distributive and equity justice, this approach is a capitalist approach that allows the wealthy to distribute their real estate to the desired extent, and in fact to deprive other social classes of the God-given blessing of the earth and its products. Because of the misuse of this traditional fiqhi approach by some rich people, some Imamiyyah foqaha especially the recent ones applied narration-based arguments with some purposes such as justice and equity and arguments such as the right of all people on ownership in land revitalization arguments. With the approval of the Bill of Allotment and Restoration of Lands Approved by Council of the Islamic Revolution, three elements of the need of the revitalizing person in restoring mawat lands, and his abilities and facilities in restoring the lands, and the expediency of the society in distributing lands among all citizens were considered as restrictive boundaries on the restoration of mawat lands.

There is a big controversy among the lawyers about the acceptance of exclusion or limitation clauses as a general principle in tort law. Some of them have rejected the acceptance of this principle with some reasons like the high risk of the clause for the victim and its conflict with the general rules of the contract law and being contrary to public policy and safety and health of the community. Some others believe that these types of clauses are not always contrary to public policy and the safety and health of the citizens and moreover, such clauses can be useful specially because of their role in creation of diversity of transactions and the decrease of production cost like insurance fee and its effect on allocation of risks among the businesses.
In the product liability law, for the existence of economic inequality among manufacturers and other businesses on one hand and the consumers who don’t have enough skill, experience and facilities to consider the products and determine their real interests on the other hand, putting more restrictions on the insertion and reliance upon such types of clauses is much necessary.
Since, the special protective rules like strict liability have been enacted with the presumption that there is an inequality of bargaining power between interprises and manufacturers in one side and the consumers of the products in the other side, it must be held that the exclusion or limitation clauses cannot deprive rights of the beneficiaries of these rules to benefit from them. also, when the general theories like negligence and breach of warranty are the basis of the action, legislators and courts are reluctant to let the injurer rely on exclusion clauses specially, in the case of consumer products and when the person in case has gotten personal damages, however there is no general rules of restriction there. Also, when there is no restriction on insertion and reliance on such a clauses, they try not to let the injurer benefit from them in practice, with the use of some special rules and regulations in construction and insertion of them.

In the international documents of human rights¡ concepts such as protection of morals¡ public order¡ public health¡ public interests¡ others’ rights and reputation have been mentioned as restrictions on freedom of speech. In other words¡ no one is entitled to neglect the above-mentioned restrictions claiming that he has the freedom of speech. Declaration of Islamic Human Rights has adopted an approach other than that of other global and regional documents of human rights and has added other cases such as Islamic rules¡ respect to prophets and sacred things and what which may lead to destruction of beliefs to these restrictions to freedom of speech. Because of extending the field of restrictions on the freedom of speech in the Declaration of Islamic Human Rights¡ this declaration has a status different from other international documents; and thus¡ the field of restrictions mentioned in this declaration and the reason behind it should be explicated from the viewpoint of human rights logic. The present writing compares restrictions governing freedom of speech (mentioned in the Declaration of Islamic Human Rights) with other documents of human rights and tries to find the reason behind difference between restrictions in this declaration on the one hand and other international documents of human rights on the other.

Human rights are the rights which human being has them without distinction of any kind. Public freedoms are regarded as an instance in human rights; and they are indispensable for such freedoms that are predictable in legal system and rules and are guaranteed the freedoms. Hence, they can be demanded by the freedom owners. But since public freedoms for all individuals in a population are predicted, the whole society and the freedom of others are also important; however, practically people don’t practice the absolute freedom. As a criterion of limiting public freedoms may vary from system to system, this article is intended to focus on the restricting public freedoms in the Islamic perspective and International human rights system.

In the contemporary era، technical revolution has provided new opportunities to create and save copyrighted works in digital format more easily and faster than before. Moreover، consumer preferences have shifted from using written works to digital ones. Consequently، the orphan works have become a more problematic issue. So far، different jurisprudences have adapted different solutions to solve this problem. Generally، these solutions may be classified into two general groups. One is ex-ante or upstream solutions، which intend to preclude the problem، and the other aims to cure the problem، which are ex-post or downstream solutions. Despite the enormous researches to find the best solution to resolve the orphan work problem، there is no unanimous solution، and the efforts to find the efficient solution are still continuing. Although finding a new solution is desirable، the aim of this article is to review the present solutions to find out their drawbacks and privileges، and finally، to propose a solution combined of the approved privileges of the main solutions.

Vertical agreements refer to agreements made between those entrepreneurs who are at different level of the production chain. These agreements may contain some restrictive clauses which are not compatible with competition rules and regulation. Some of them have both negative and positive effects on competition. Rule of reason and economic analysis can determine their prohibition or permission. At the same time there are some other terms which، due to their special features and inherent negative effects، are regarded as presumptively and Per se illegal and named as hardcore restrictions، such as minimum resale price maintenance and territorial restrictions. At the first part، this article discusses the concept of prohibited vertical agreements. It also examines various instances of these agreements، and analyses each instance from comparative perspective of European Union، United States and some other countries. At the second part of this article، Iranian competition law in the light of vertical restrictive clauses is examined. In doing so، some shortcomings of Iranian competition rules and regulation in respect of hardcore restrictions will be highlighted by presenting a practical and critical assessment. This article concludes by proposing some recommendations for reform of Iranian competition law as to restrictive vertical agreements.

Liberty on defense is a principle which has two effects: the right of defense personally and the right of free choices of defender. These two effects have two clear meaning. First means that the parties can defend themselves personally and the second means that they can choose their defender freely. There are some restrictions on those two results that we would analyze respectively in this article. Some of them are restrictions that seem the way of lawyer’s presence in the court and his facultative or mandatory presence.Free choise of defender has met also other restrictions that are known as forbidden: defendant cannot choose claimants ex or current lawyer as his lawyer in same case and ban of advocate acceptance versus the client and ban of advocate acceptance in case of relativity existence between judge and lawyer or his/her spouse and finally limitation by the cause of lawyers degree.

Recently, a significant change has occurred in the lifting aspect of the Security Council sanctions, namely, the inclusion of a fixed term in sanctions regimes. We first examine the emergence of the idea of a fixed term for sanctions regimes. With the disappearance of the situation justifying the imposition of sanctions, there is no reason to maintain them. Yet, each permanent member may oppose the lifting of sanctions and extend them indefinitely.The experience acquired, particularly from the sanctions imposed against Iraq has, since 2000, led the Security Council to introduce a fixed term in its sanctions regimes. Then we will examine the contribution of the time limit to the sanctions policy of the Security Council and the risk it may raise to the effectiveness of sanctions. Introducing a validity term in sanctions regimes is a key element and a guarantee for improvement in the suspension and lifting aspects of sanctions. Furthermore, the time limit can ensure the viability of the sanctions mechanism and will also contribute to their legality and effectiveness. Nevertheless, this policy change is not absolute.