جستجوی مقالات مرتبط با کلیدواژه « کارایی » در نشریات گروه « فقه و حقوق »

The usual way to oblige the delinquent obligee to do the work is to appeal to the court judge and file a case to issue a final judgment and also file a case to execute the judgment (prior actions of the judge) and the delinquent obligee may still refrain from doing the work during the execution of the judgment. In this assumption, by resorting to Article 237 of the Civil Law and Article 47 of the Law on the Execution of Civil Judgments, under the supervision of the litigant, the obligee or another will carry out its execution and collect its costs from the obligee. This method is erosive and expensive and harmful. The research question is whether there is a possibility of extrajudicial replacement of the obligee in breach by the obligor or not? We examined the answer to the question by proposing and explaining the theory entitled extrajudicial replacement of the obligee in breach in the modern law of obligations of France and the law of obligations of Belgium and while introducing the theory, the conditions and scope of its implementation were examined. In Article 1222 of the New Civil Code of France approved in 2016, the French legislator has provided for the possibility of replacing the obligee in violation. With the conducted studies, it is possible to propose a theory and the capacity to implement it in Iran's law of obligations, and the attractiveness of implementing the replacement theory is the elimination of the erosion process or the judge's previous actions and its high economic efficiency.

The unification of Judgement decision of the Supreme Court No. 810 of the Supreme Court -in addition to legal effects- it has significant economic effects because this judgement decision regards the effect of the termination of the first transaction on the subsequent transactions, even despite the ignorance of the subsequent buyers regarding the existence of the right of termination in the first contract. However, despite the existence of legal criticisms regarding this, there is no economic analysis in law and economics literature. Therefore, this article has tried to answer the question- while referring to the general principles governing the economic analysis of law and looking at the equivalence theory of Dr. Jafari Langroudi-how efficient and compatible is the discussed judgement decision with economic principles? The hypothesis of this article is that parts of the judgement decision no. 810 are considered ineffective due to negative economic consequences and are incompatible with some economic principles; This clearly shows that the economic analysis was not taken into account in issuing the said judgement decision. This research is presented with a qualitative method and the use of library study tools, in the form of two parts: the first part describes the judgement decision no. 810; and the second part analyzes it from the perspective of the economic principles and equivalence theory of Dr. Jafari Langroudi. In the end, specific short-term and long-term solutions are suggested to the groups benefiting from the results of this article.

One of the ways to control and prevent crime is cyber filtering or content filtering. Filtering has been widely used in Iran. Applying filtering to prevent crime, along with the benefits it may bring, has its expenses and costs. In order To limit resources and avoid unwanted costs caused by filtering, it is necessary to measure and evaluate the costs and benefits caused by filtering. In this regard, the present article aims to discuss filtering with the descriptive-analytical method and with the approach of economic analysis of law to "determine efficiency". In this way, the two main components of productivity, i.e. "efficiency" and "effectiveness" are the filtering evaluation indicators in this study. The findings of this research show that first; Content filtering, with all the high costs that imposed on the society for its implementation and as a result of its implementation, has had few benefits, so it does not have the necessary efficiency. Secondly; filtering lacks the expected and desired effectiveness for many technical and social reasons. The conclusion and theory of this article is that it is necessary to revise the current content filtering policies and use other methods of crime prevention in cyberspace.

In the economic analysis of civil liability, efficiency, i.e wealth maximization is the basis for justifying rules. Civil liability by reducing administrative costs, distributing losses among members of society, forcing agents to internalize external costs of their activities and taking precautions to prevent accidents leads to a reduction in total accident costs and thus increase wealth and efficiency. In this essay, the rule of joint and several liability is examined with the approach of economic analysis and efficiency criteria, the results show that applying this rule, depending on whether multiple causes of the damage are aware of each other's solvency or not, and also depending on the nature of the accident, can have different effects that lead to efficiency in only a few cases: where multiple causes of damage are not aware about the solvency of each other, in both joint care accidents and successive care accidents, joint and several liability leads to efficiency through deterrence; where one of the multiple causes is solvent and the other is insolvent, and they are aware of this situation, the exercise of joint and several liability, in addition to leading to precaution and efficiency in joint care accidents, also reduces administrative costs and thereby leads to efficiency.

The Parliament is an example of a society in which the determinants of its size have been less studied. The present article hypothesizes that determining the number of seats in a legislature is a balance between efficiency and representation. One of the important components to achieve the desired efficiency is to have enough people with the necessary expertise to perform the tasks. In case of shortage of personnel and consequently, lack of necessary specializations, the group will certainly not achieve the desired efficiency. Also, the larger the group, the greater the proportion of votes to the number of seats, parties, and representatives of the smaller groups. Based on this, the current research tries to investigate with a scientific-analytical approach through the demographic statistics of the parliaments of different countries, what is the relationship between the number of parliamentarians and the efficiency and representation of that parliament? Also, with a secondary question, after comparing the conditions of the Islamic Council of Iran with other countries in this category, it is tried to check whether the requirement of the two important duties of legislation and supervision (based on principles 71 and 76 of the constitution) with this Hasn't the number of representatives caused excessive use of Article 85 of the Constitution? According to the results, Iran's parliament ranks 236 among the 239 parliaments in the world in terms of the number of representatives. This issue can have a great impact on the efficiency of the parliament and also on the matter of representation.

One of the main questions in contract theory is the justification of the binding nature of contract; That why the legislator intervenes in this private field and determines some sanctions and remedies. In response to this challenge, in the common law three major theories have been offered: moral theory, economic theory and the rule of will theory. In Iranian law, legal scholars have based their theories on moral, social, economic and religious grounds. This article, while examining and evaluating these theories with an analytical-descriptive method, despite the support of most Iranian legal writers for theories based on social interests, defends the principle of autonomy of will and claims that other values can be unified with this principle. The main idea of ​​this article is that the most important and direct goal of the legislator from enforcing contracts should be to enforce the cooperative will of the parties to the contract, which is in line with supporting the higher value of autonomy. Also, efficiency as an economic value is included under autonomy and as an instrument plays a central role in formulating detailed regulations and the structure and how to support the contract.

Utilitarian and wealth-maximization readings have always been two main perceptions of efficiency. Philosophers and jurists have proposed both of these readings as the basis for the enforcement of legal rules. As a normative criterion, Followers of efficiency claim that the ultimate goal of legal rules should be to maximize utility or wealth. In the history of law and economic analysis, four main reasons have been used to defend efficiency: utilitarian, libertarian, conventional, and ultimately pragmatic. Critics, however, believe that the arguments that are supposed to reinforce the claim of maximizing efficiency face many ethical problems. At the same time, the concept of increasing wealth as the ultimate goal is not internally coherent. In this paper, through descriptive-analytical methods, the efficiency concept and efficiency evaluation criteria in both utilitarian and wealth-maximizing readings is analyzed. Finally, it was concluded that efficiency cannot be accepted as the fundamental norm and the core value of rights. Nevertheless, the positive value of economic analysis will remain & Its importance as a fact of economics will not be diminished to legislators.

Economic analysis of law is a theory that evaluates and corrects legal regulations by using economic tools, considering efficiency as it’s main goal. Reviewing some of the critiques, raises doubts about the possibility of utilization of it’s whole achievements in Islam. Despite some efforts to prove the theory on the basis of pure rational propositions and jurisprudence rule of expediency, those reasons cannot prove the theory totally. The important question that hasn’t yet been answered, is that can any foundation be found in Islamic jurisprudence that proves it totally? This article has been written on the basis of this necessity, proving the impossibility of concluding the totality of the theory from Islamic jurisprudence. It also presents, for the first time, a new attitude in light of the rule of system disorder negation. Although, it seems difficult to admit the possibility of correcting Islamic verdicts in order to gain private utility as a general rule, but if the inefficiency of verdicts or lack of them creates disturbance in economic subsystem’s interests in a big scale, lifting inefficient verdicts or issuing efficient ones will be allowed but necessary, because governmental verdicts, based on economic system disorder negation, are prior to primitive and secondary verdicts. Economic analyzing of Islamic rulings in order to preserve general interests is permissible just in cases of contradiction with governmental economic expediencies, it is also reliable as long as expediency necessitates and it doesn’t appose stronger expediencies. so it has a more restricted domain compared to the theory.

Governments set the main goals of their economic system on encouraging people to engage in economic activity and use resources fairly, but the achievement of these goals has been hampered by the formal and substantive shortcomings of private law in the field of contracts. Legal systems use competition law as a public and regulatory tool to respond to these shortcomings, relying on theories of justice at various levels from the constitution to statutory law, so that minimal government intervention leads to efficiency and optimal resource allocation. This article uses descriptive-analytical methodology to answer existing questions about the approach of the legal system governing competition law based on theories of justice and examines the change of approaches based on theories of justice in the Iranian legal system.

Morals are the fundamental values on which majority of a community are agreed based on norms and beliefs. Morals are principles such as: good faith, honesty, commitment to cooperation, lack of deception, fairness, justice, loyalty and non-discrimination. Ethics is inner which leads to utility, reduction of transaction cost, wealth maximization, efficiency and welfare by building trust, averting opportunism and, optimized commitment to obligation. It would be too expensive to apply for a contractual guarantee; to adopt a mutual strategy, which is sometimes against the initial incentives of conclusion, and an effort to gather more information in order to prevent the other party's opportunism. It seems that including explicit non-law clauses, such as duty of respecting morals in order to prevent opportunism, is not only regarded as a means of internalizing the costs and but also as a sequel of such measures, it comes with fall in transaction costs and rise in contract efficiency. Adhering to morals in contracts and adhering to them can lead to contract performance by reducing contract termination, breach of commitment, renegotiation, contract adjustment, moral hazard and adverse selection. Without consideration of the utility of exchange, as a cross between justice and efficiency, the commutative justice will be violated, because the inefficient contract, won't be fair either.

The rule of law is effective in the production of wealth and social welfare, so that any rule of law that causes a waste of resources must be reviewed. One of the functions of legal economic analysis is to evaluate the effectiveness of legal rules and determine the most efficient ones. In other words, the economic analysis of law is the application of theories of economics, especially "efficiency" as the basis of legal rules in order to evaluate these rules and, if necessary, correct them. In line with this, law and economics use economic rules, especially microeconomics, and determine the guarantee of optimal implementation in terms of the theory of "price of breach of obligation". Economic analysis of law also seeks to achieve the most valuable legal rule, the value that is referred to in the economic literature as the theory of "social cost". In the present research process, which uses a descriptive-analytical method, it is concluded that the right of lien has not only failed to achieve its goals legally, but also economically, has caused a waste of resources, increased transaction costs and increased lawsuits. It goes so far as to sometimes lead to the termination of the contract or its goals.

As a legal-economic event, bankruptcy, which leads to a halt in the business life of the business people, has a direct impact on the economic interests of a whole society. One of the proceedings associated with bankruptcy involves the restitution claims by third parties against bankrupts or vice versa. The question here is how the modern approach to bankruptcy, which is based on economic theories as independent bases for restitution claims, makes a difference in the way these claims are handled compared to the traditional approach that is based on the principle of equality of creditors. It is arguable that economic theories can be solid bases for the construction and enforcement of restitution claims in bankruptcy, their advantage over the traditional approach being that the ability to reclaim property in the new approach is attuned to the goal that the merchants’ capital be returned to them as much as possible. That is why this approach takes the bankrupt’s claim against the third party as the principal form of a restitution claim, and the claim of third parties against bankrupts only as exception. The modern approach is, accordingly, conducive to the restructuring of the bankrupt’s capital and will help, by offering amenable interpretations of, and modifications to, the relevant rules, to prevent the collapse of the society’s businesses and its adverse effects.

The present study explores the impact of partial payment of the debt on the release of the pledged assets regarding the legal and economic issues, with an emphasis on the new decree stipulated in Article 19 (a) of the Law on the elimination of barriers to competitive production and promotion of the financial system of the country. The results of the research in our law and Imamiyah jurisprudence show that Article 783 of the Civil Code, following the jurisprudents of the Imamiyah, has accepted the "rule of security agreement insolubility", according to which no part of the bail is released through partial payment of debt. By contrast, Article 19 (a) of the law on the elimination of barriers to competitive production and promotion of the financial system of the country, provided that the manufacturing unit has gotten some debt instruments from the a bank or a financial and credit institution, whether public or private, is subject to the theory of "rule of security agreement solubility" making an exception to the rule of the civil code. In terms of economic analysis, it is also clear that Article 19 (a) of the law on the elimination of barriers to competitive production, in comparison with Article 873 of the Civil Code, can lead to an increase in wealth and realize the efficiency.

The doctrine of the fresh start which is one of the modern concepts of bankruptcy law and is influenced by the school of the economic interpretation of the law, Seeks to relieve the Merchant from debts owed to provide an opportunity for him/her to rejoin society as a productive economic member. In fact, the theory of the fresh start for the productive and creative merchant, by discharging of a debtors debts that he/she has been unable to pay, protect his/her property and future income from creditors. Although the Iranian legislature has not taken a position on this theory, the UNCITRAL Legislative Guide on Insolvency Law addresses it separately. In this research, this theory is explained and studied with a comparative approach.

This article attempts to explain the reasons for the general theory of indemnity (arsh) in Imamiyyah jurisprudence and following that in Iranian law and to prove the reasons based on an economic analysis. In this case, the results obtained from the analysis will turn the general theory of indemnity into an efficient guarantee against violating party of the contractual commitments and proper and fair answer may be given to the breaching of the contract by Imamiyyah jurisprudence based on traditional - revised - systems. In addition to explaining the reasons for classical and modern theories of economic law with an emphasis on the question as to whether the execution of the same commitment is preferred or its indemnity, the article makes a comparative study of the subject matter in common law specifically American common law. The results obtained from of the research show that the general theory of indemnity can be completely proved based on the classical and modern economic theories. In fact, it can be said that the general theory of indemnity can be a combination of the Hick’s ethical theory of performance - mainly on the basis of Kaldor's performance theory - and the priority of compensating over performing of the same commitment and the theory of objectivity that aims to remove ethics in the area of contract.

Economic analysis of law is globally recognized in all the main legal systems. This approach is specially known to be efficient in the common law countries. In the contrary, in civil law countries such as Iran, where the judgments must be backed by legal provisions, the role of economic analysis of law appears to be less important. Despite this fact, these analyses are of paramount importance in the legislation phase or in the fields where the judges have a wider margin of appreciation such as in contracts.

Theoretical frame work:

One of the important issues that can be tackled with the economic analysis of law is the transaction intended to escape from payment. In these transactions, debtors hold the real intention to conclude the contract, but the motivation of their conduct is to escape from the payment of their debts.

From the economic point of view, sometimes third parties are affected by the contract. Although not having been considered in the estimated transaction costs and benefits, these effects can influence the welfare of the society either positively or negatively. In economics, these unaccounted effects are known as "externalities". Since, from the microeconomic point of view, the markets are competitive, such externalities can result in the market failure. Transactions intended to escape from payment are one of the main examples of these contracts that can influence potential third parties. The creditors may in fact be the third parties to this type of contracts, which thereby causes them externality. This situation can become even more complicated and vague when there is an asymmetric information distribution or access between the parties, which can in turn bring about the opportunism, too.

There exist some laws and provisions that deal with the transactions intended to escape from payment. Amongst the relevant provisions, article 21 of the procedure of financial penalties enforcement enacted in 2015 and the uniform judicial precedent rendered in 2020 related to the aforementioned issue are of paramount importance. Taking these laws and provisions into account, the main question that arises here is whether these available rules, provisions and jurisprudences regarding the transactions intended to escape from payment are effective and sufficient if one takes an economic point of view.Although there exists a relatively good literature on this issue, including “Protection of Creditors against Contracts with Intention of Escape from Payment of Their Depts In Iran and France’s Legal Systems” in 2012 by Qaboli Derafshani et al.  and“The Economic Rights of Trade Creditors in Order to Avoid Debt” in 2013 by Saberi et.al., the adopted economic approaches are not sufficient or not in accordance with the current changes of the law. Therefore, conducting a new and thorough research on the different aspects of the formation of such contracts and their validity as well as adopting the best fit economic approach to analyze the adequacy of the existing law and provisions and their efficiencies are inevitable. In order to answer the aforementioned questions, the research methodology adopted in the present study will be mainly desk-based and the results will be synthesized using qualitative and descriptive research methods. In this regard, the authors will first examine the transaction intended to escape from payment from a general point of view. In the second place, each principal element for the formation and validity of such contracts will be economically analyzed separately and thoroughly. It should be noted that the present study will not consider the economic analysis of the criminal, as it needs to be addressed in a separate paper.

Conclusions & Suggestions:

the research show that there are two types of solutions to deal with the effects caused by the transactions intended to escape from payment. The first one is the private solution. Through this solution, parties shall try to settle their dispute by means of negotiations and / or renegotiations. If the negotiations are vain, then the second solution, namely the public solution, comes to play.  By means of such solution, parties shall bring their case before the court for judgment. If such contracts are considered as enforceable, there would be the possibility to recognize their validity, however, if they are considered as incomplete, such possibility does not exist as their legal life is not fully formed.In addition, it is noted that the cost of applying article 21 of the procedure of financial penalties enforcement enacted 2015, which is applicable in the case of the transaction intended to escape from payment, is normally very high for the creditors. This clearly renders such a solution economically inefficient. The other drawback of this article is the fact that the good faith of the counter party of the debtor in the transaction intended to escape from payment also can play a role; however, by adopting such an approach in reality, the debtor will benefit from the transaction and prejudice the creditors.Overall, the authors are of the opinion that despite the numerous economically important provisions, these solutions are not effective enough to deal with such transactions in the Iranian legal system.

According to studies in the field of development, in the process of achieving economic development, "Law" should also be called for. Therefore, lawyers have a prominent role to play along this path. One of the most important legal institutions in question is the evaluation of the two areas: property law and contract law. In this, the institution of property is at the forefront and the entry of the institution of property is also the principle of "Numerus Clausus of Property Rights". Thus, in the process of extracting the underlying principles of the legal institution of property, "Numerus Clausus of Property Rights" is considered as the first fundamental principle. According to the mentioned principle, the choice of individuals to own property is possible only in the "limited number" and also in the "specific contents" identified by the legal system. In the meantime, understanding the economic foundations of this principle is important because of its role in the path of economic growth and development.

Theoretical frame work:

Given that fundamental analysis and interdisciplinary studies lead to the development of a legal perspective, the extraction and analysis of the foundations of effective legal institutions in the process of economic development is important. One of the effective approaches in legal research is economic analysis, which along with legal analysis helps to reform and develop legal principles.This article seeks to analyze the principle of "Numerus Clausus of Property Rights"; what is crystallized in Article 29 of the Civil Code of Iran. In the meantime, its economic analysis is considered as an introduction to understanding the participation of law in the call for economic development. In this way, it is written in two parts: The first part describes the "Numerus Clausus of Property Rights" and its elements. The second part presents the legal and economic analysis of the mentioned principle. In this regard, economic analysis has been proposed with the aim of "efficiency" and "reducing transaction costs".

This study attempts to answer the main questions of this research based on the descriptive-analytical method by analyzing various theories presented in the field of law and economics. In describing and analyzing the mentioned principle, examples of the Iranian legal system have been used.

The entrance gate of the property institution is dedicated to the Numerus Clausus of Property Rights Principle. As a result, a person cannot acquire whatever he wants in any way. Rather, he is required to proceed in accordance with the discretion of the legal system (statue and precedent) and to choose between "limited numbers" and "specific provisions".In the Iranian legal system, Article 29 of the Civil Code of Iran is one of the most important examples of the Numerus Clausus of Property Rights Principle. The analysis of this principle shows that the application of "Numerus Clausus principle" in a flexible format can bring order and predictability to motivate market participants in carrying out economic activities.

Conclusions & Suggestions:

This article concludes that it is necessary to application of the "Numerus Clausus Principle" in the property institution. Because this principle contributes to the prosperity of the market and creates a favorable environment for economic growth and development. Of course, it should be noted that the application of this principle must have the capacity to adapt to market needs. So, it must have a flexible position. For example, we can point to develop examples of security of property, including debt and intellectual property; which helps to increase investment and increase business transactions. In this regard, the question that has been answered is why it is necessary to apply this principle? Lawyers believe that this principle provides legal certainty that is effective in promoting freedom of ownership and the free movement of goods. Legal certainty indicates what property rights can be owned and which of them can be traded in the market. In this way, the market actors can understand a kind of predictability and expectability; this leads to an increase in the motivation of economic actors to participate in the market. As a result, with more actors and more transactions, the market thrives and ultimately economic growth and development is achieved.The issue was also analyzed from the perspective of economic law and it aims to "efficiency" and "reduction of transaction costs": The first analysis based on "preventing a reduction in efficiency", calls for a "ban on the extreme fragmentation of property rights." The second analysis based on "prevention of externalities", emphasizes the issue of "reducing measurement costs". In the end, the third analysis based on "prevention of mistakes and opportunistic behaviors", describes the concept of "common understanding" of individuals in relation to their property rights. Thus, all three analyzes emphasize on the necessity to identify the types of property rights and their contents by legal system.Finally, it is recommended for the Iranian legal system, while maintaining the "Numerus Clausus Principle" in the property institution, to take a more flexible approach in responding to market needs and identifying new property, including in the field of identifying the subject of mortgage contract.