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

The patent claims as an important legal part of the patent certificate are the most cited and the most challenging part of the patent certificate in patent infringement lawsuits. The evaluation of the jurisprudence of various countries proves that despite the significant impact that this part of the patent certificate has on the fate of infringement lawsuits, due to the arbitrary constructions, it has lost its pioneering role and the judgements are clearly incoherent. This article, in addition examining the judicial procedure of American courts and identifying the seven principles cited by judges, shows the necessity and importance of uniform, methodical and predictable construction by parties. Also, while refining and evaluating these principles in Iran's patent law, this research aims to provide clear guidance for Iranian judges when interpreting claims in settling disputes of infringement lawsuits. Nevertheless, the authors of this article, while acknowledging the special nature of the strategic findings of the judges of the American federal courts, use the aforementioned principles only for face these concepts, to explain the necessity of systematizing claims construction with the aim of preventing occurrence of conflicting opinions when interpreting claims in Infringement claims are suggested. Nevertheless, the authors of this article, while acknowledging the special nature of the strategic findings of the judges of the American courts, use the aforementioned principles only to face these concepts, to explain the necessity of systematizing the interpretation of claims with the aim of preventing the occurrence of conflicting opinions when interpreting claims are suggested.

Amendment of claim in application before issuance of the patent is considered accepted in most legal systems of the world. What is being challenged is allowance of the amendment of the claims in the application after the issuance of the patent. The Iranian legislature has limited the possibility of amendment before the issuance of the patent, and his silence regarding the possibility of amendment after the issuance of the patents indicates on impermissibility of them. American and British judicial proceedings insist on the permission of amendments even after the issuance of the patent. The European Patent Convention (EPC) is an important regional document that allows these amendments in terms of legal conditions despite the enumeration of the competitive risks of allowing amendments on the one hand and requirements of balance between rights of inventors and the standards of competition right and antitrust norms on the other hand. Our research is primarily library-based. The authors are trying to draw the legislator's attention to the benefits of the permission of the amendments even after issuance of the patent. And they are also trying to mention the rules governing the limitations of the amendments in the light of discussed jurisdictions

According to the decision No. 812 of the Supreme Court of Iran, the calculation of damages for delay in check payment is based on the due date. However, the application of the said decision and the different views among the doctrine and the judges caused that even after the issuance of the said decision, unanimity was not established among the judicial authorities and conflicting opinions were arisen in many cases. Some of the most important hypothetical disputes are the transfer of a check after protest, the passage of a long period of time from the due date and the lack of demand by the holder (rule of action) and the inclusion of the passage of time for commercial documents stipulated in Article 318 of the Commercial Law. The current research, by examining the view of the doctrine, international documents and especially the judicial procedure regarding the origin of the calculation of damages for the delay in check payment with a descriptive and analytical method, has reached the conclusion that the application of the decision of the Supreme Court does not lead to other legal rules such as expiration of commercial documents, failure to comply with commercial document transfer formalities or action rules to be inapplicable. Therefore, due to the special ruling, these cases are excluded from the application of the unanimous decision and the basis for calculating the damages for the delay in check payment will be generally from the date of claim.

Normally, upon rendering the arbitration award and serving it to the parties, the connection of the arbitrator with the case is terminated. However, in many cases the dispute between the award creditor and award debtor concerning the arbitration award, continues through the filing of lawsuit to demand annulment the arbitration award and to be dealt with it during the two stages of first instance and appeal. In practice, regardless of the outcome of the dispute, the arbitrator has very little involvement in the process of the proceedings dealing with the annulment of the arbitration award. This is so while he is the person with a greatest knowledge concerning the arbitration process that has taken place. Moreover, the outcome of the annulment of the arbitration award can damage the personal and professional reputation of the arbitrator or the arbitral body, and may provide the ground for the imposition of civil liability on the arbitrator or arbitral body. In this article, by considering one example of the judicial precedent, we shall examine the legal power of an arbitrator to defend his award during the proceedings of the annulment of the decision or after the final annulment of the arbitration award. In the end, it has been concluded that supporting the presence of the arbitrator during the annulment proceedings and the interaction of the court with the arbitrator is acceptable, and with certain conditions, it is possible for him to object as a third party to the annulment of the arbitrator award, and consequently, the award may be reversed.

There is disagreement in jurisprudence about the validity of litigation or the demand for proof of ownership. Some courts accept such a lawsuit and others issue a non-hearing order. Despite some legal research and judicial efforts, the current issue is still relevant and a well-established scientific perspective has not been formed. In this article, while explaining the issue in a preliminary way, the opinions of the proponents and opponents of the validity of such a claim and the critique of each are briefly presented. Then, an example of a judicial procedure based on opposing the validity of the mentioned lawsuit is given and analyzed. In the end, For reasons such as attention to the existence of a legal dispute in ownership, referring to the decision of ownership in some laws and the non-contradiction of the proceedings of such a lawsuit with the jurisdiction of the state registration office and other reasons, a detailed summary of the author on the validity of the claim for proof of ownership is presented except in exceptional cases and as a result of the superiority of the opinions of those in favor of the validity of the said claim.

The claim is considered against the defendant when the court can consider the judgment against the defendant, assuming that the plaintiff's claim is true. This statement is effective in a lawsuit with the same respondent and defendant. However, its effectiveness in the claim against the deceased is questionable; Because in this claim, the plaintiff's claim is against the deceased and the defendant is a person other than the deceased, ie his heir. Hence, the question is «how can we identify being the claim against the heir in such a lawsuit?» In this article, an attempt is made to provide an answer to this question by the library and field methods. In this regard, by searching the opinions of Imamiah Jurisprudents, it is observed that they have considered some conditions necessary for being the claim against the heir. In this article, while reviewing these views, which have been discussed below regarding the conditions for taking the oath to the heir, the hypothesis is strengthened and proved that the relationship between the conditions for being the claim against the heir and the conditions for taking the oath to him is general and peculiar in some respects meaning that by proving three conditions including death, remaining the estate, and the inheritance relationship between the decedent and the defendant, the claim is against the heir. In Iranian law, in addition to accepting the need to prove foregoing conditions to be the claim against the heir, inheritance certificate as a way to detect the death and the relationship of inheritance between the deceased and the defendant and the rules on acceptance and non-repudiation of inheritance as a way to detect remaining of the estate are identifiable.

The chapeau of Article 107 of the Iranian Civil Procedure Code states that the withdrawal and dismissal of actions “…shall be in the following order…”. Then, in three paragraphs, paragraph (A) mentions the withdrawal and dismissal of actions, paragraph (B) refers to the withdrawal and dismissal of actions before the end of the negotiations, and paragraph (c) provides the withdrawal of the claims after the end of the negotiations. In all three paragraphs, withdrawal of a petitions and claims are voluntary, and only in paragraph (C) (withdrawal of the claims after the end of the negotiations) the consent of the defendant is the precondition for dismissal. Even in this case, if the defendant does not consent, the plaintiff can resort to withdrawal and dismissal of actions. But the court should issue the writ of suit’s dismissal and the plaintiff no longer has the right to sue on the same matter. Therefore, according to this Article, the will of the plaintiff is effective in the withdrawal of a petition and claim and the will of the defendant or defendants has no effect. In addition, there is no mention of the court's obligation to rule on payment of the costs of the proceedings in the case of dismissal of actions. It is despite the fact that, undoubtedly, file a case and then the petition impose some costs on the defendant or defendants and the court has a duty to address it. Furthermore, four terms of petition, claim, termination of negotiations and dismissal of action are mentioned in this Article, but their meaning are not stated. This paper tries to discuss and critique this Article and compare it whit similar cases in French law.

In U.S there are two types of counterclcompulsory and permissive.In the first one the defendant must submit all the claims arisen out of the transaction or occurrence that is the subject matter of the claimant's claim as counterclaim otherwise his claims would be the subject of res judicata.In Iran by the wording of the article 141 of Civil Procedure submitting the claims arisen out of the same occurrence or transaction or the claims that have complete connection with the main claim as a counterclaim is permissive.Most of commentators view the expression “the same cause” in aforementioned article as unnecessary and useless.Since the reason for consolidation of claims is to avoid conflicting decisions on the same matter and there might be claims arisen out of the same occurrence or transaction still have no connection together. But it seems that above-mentioned expression has an important function.Because making decision on every claim is a consequence of the decision about the occurrence and transaction of which the claim is arisen out.So if claims arisen out of the same occurrence or transaction are submitted in separate cases, that might lead to conflicting decisions.so these type of counterclaims should also be compulsory in Iran.

Some requests and claims have the capacity to contain another claim. The proceeding of a claim involves the processing of another claim that is inside, such as a requirement to draw instrument under seal that ensures validity of transfer and the court properly confirmed. Is it possible for the court to hear the implicit claim? Jurisdiction, court costs and appeals against the court ruling based on which request should be made? It seems in such claims the court can hear the customary, rational, and legal requirements that is the inseparable part of claim. In fact, these issues have also been implicitly demanded by the plaintiff. In such claims, the jurisdiction and appeal of the judgment and the cost of the proceeding shall be determined on the basis of the ultimate claim. In France and in Arab countries such as Egypt such claims are not disputed but there is often resistance to acceptance in Iranian judicial practice. Since the acceptance of such lawsuits can undoubtedly facilitate litigation and reduce the social and economic costs of litigation in the Iranian judicial, we are going to examine the different aspects of implicit litigation in this descriptive-analytical article. By reducing the ambiguities, the way will be provided for the acceptance of implicit lawsuits in the judicial procedure.

When a person dies and leaves registrated heritage, final owners of heritage may intend to sale heritage because of practical problems of parcenary in ownership. Evidently, if sale of foregoing heritage is not peacefully feasable, claim to sale heritage will appear. Trial of claim to sale heritage is sometimes in contrast with the rules of trial and adherent to exceptional provisions. Hence, The claim to sale, which is propounded in the courts, will be heared only after propounding the claim to partite in documents and estates registration office and emissioning the certification of non-partition. The request of claim must be passing sentence in an exceptional mode and subsequently, the court determines to sale in an exceptional format. determining to sale in an exceptional format has effects. First, determination to sale is not subject to the functus officio and judgment of the judge rules. Second, although it is not possible to protest to determination to sale through ordinary and extraordinary ways established in civil procedure code, interested individuals can lawsuit for revocation of the determination to sale. Third, determination to sale is always contradictory.

Under Iranian Civil Procedure Act, claimant, when making Action, has to determine the cause of his/her Action. While according to the paramount opinion in Shiit Jurisprudence, principally the whole Actions have to be heard even when cause of Action has not indicated. From this view point, as a rule, it is the court that is bound, at the commencement of hearing, to explore the cause of Action and on that basis, makes judicial decision. By accepting this opinion which has been applied in some court's decisions, in addition to respecting the fourth principle of Iranian Constitution, it is possible to transfer the subject of determination and achievement of cause of Action, from the section of formal conditions of petition to the section of hearing bars which naturally results in changing the decision making authority from court clerk to judge. In French law, although the phrase "cause of Action" has not been used and defined in civil procedure Act and jurist has expressed different opinions in the matter, according to that Act, claimant is obliged to indicate legal and subjective bases of Action.

Abstract The referral of claims regarding public and governmental properties to arbitration, according to the Principle of 139 of the Constitution and Article 457 of the Iranian Civil Rules of Procedure and Evidence, is subject to the ratification of the cabinet and information of the Islamic Majlis. This limitation has made some challenges, in particular, in the field of international trade and investment. One of the ways for overcoming these challenges is to know when to take the permission for referral of the claim to arbitration regarding properties mentioned in the Principle 139. The time of the conclusion of the contract or inclusion of arbitration clause in the contract is not significant. This article tried, in a descriptive-analytical method, to justify that the time of taking permission for referral of the claims stated in the Principle 139 to arbitration is from the happening of dispute to the final phase of arbitration process and the execution of the award not the time of the conclusion of the contract. Key Words: Arbitration, Principle 139, Public and governmental properties, Claim, the Time of Taking Permission for Referral of the Claim to Arbitration

If the logical and mathematical approach to law is related to an argument with a valid form regardless of the matter and content in the form, the rhetorical approach can prefer the content to the structure and form. In the Toulmin’s rhetorical model of the argument, the acceptability of the content of argumentation firstly belongs to the judgment of audience to whom the argumentation is made. Secondly, the argument has a descriptive form to show common way of reasoning in the people everyday conversation, not prescriptive, like the methods prescribed by the logical approach. In the Toulmin model, at the first step, there is the claim that we need argumentation for; while in the logical approach we have initially some premises which necessarily bring us to the conclusion.

La Fin De Non-Recevoir in the Law of Iran and France Abdollah Shams (Professor of Law, Shahid Beheshti University)Mostafa kordzangene(Ph.D Candidate of  Law, Shahid Beheshti University )Abstract  “La fin de non –recevoir” is an institution that has been predicted as a defense against a litigant in the law of Iran and France. This institution works as a the guarantee for not having the right of litigation or the lack of action, which is addressed in details in France’s civil procedure. However, there are only a few regulations about this institution in Iran’s civil procedure. But recognizing the La fin de non-recevoir as an instrument that can be effective in settling the problems based on its principles and contents, shows that most of the lawsuits and cases are not enforceable and must be ended by a conclusive decision at the beginning. Therefore the recognition of this institution in France dynamic legal system and also comparative analysis of Iran’s legal system in this matter and consideration of both countries’ legal procedure have been studied in this article.

Statistics on registration function of Iranian patent office shows that the number of registered inventions has reduced between 1386-1393. The number of issued patents from 10346 in 1387 reduced to 3436 patents in 1392. This is while at the same time from 2008-2013 the number of Iranian patents registered in USPTO increased from 2 to 40. On the other hands there are many problems with commercialization of inventions in Iran and more than 90% of registered patents remain in the archives and never gets a way to the trade.
But what are the reasons? This article studies one of the probable reasons, legal defects on patent registration. So a comparative study on the patent Laws of two countries has been done. In this way it studied the laws and the issued patents from the two offices which are analyzed by technical expert. And it is proved that how different legal text effects the function of the patent systems.

The result of preserving the independence of dignity and human rights in society has caused right discourse is common at the present time. The right of Self-determination as the basis of many rights and freedoms requires in order that the one has power for Continuous monitoring and prosecution powers to limit it and guarantee the human rights and freedoms. Relation caused by the right of public oversight to power as many rights dispute. This different look requires the right of public oversight to power has been examined more. To determine the scope of necessary limitations of unnecessary restrictions. This would also make the content of right clear. In the present study component ruling on Hohfled’s bilateral relations and the elements of the right of public oversight to power will be analyzed. This attempt will be done to distinguish relations and rights and assignments. The result of this analysis shows that the analysis of legal relations and legal positions of claim-right and liberty-right can be used in analysis of right of public oversight to power.

One of the important issues in company law, is how to control managers in doing their different powers. Since in great companies, there is often separation between ownership and management, most of partners cannot have an effective role in managing the company. Also it is possible that the managers focus on their personal benefits instead of company and do infringements that may actually result in the company’s damages.
One of significant means to control the actions of managers, is the possibility of making liability claim on behalf of the company against them. The aim of this claim which is not necessarily made by legal representatives of the company but by some of stockholders or partners and on behalf of the company, is to protect directly the company’s rights against the infringements of the managers. Of course this legal support in Iranian law, contrary to French law, is in some aspects weak and subject to criticism.

Although the subject-matter of cargo and ship mortgage are similar (providing financial security for creditors),the regulations of these contracts, differ from each other essentially with regard to the conditionality of taking possession in concluding the contract, the possibility of endorsement and cession in mortgage document, the creditor s kind of real right, the preference of prior or latter creditor in vindication of right and the effect of mortgage loss on the contract and the possibility of recovery of claim. Moreover the cargo mortgage regulations are, in some regards and aspects, contrary to general legal rules and hence subject to criticism.

Arbitratide judicial organizations, are the investigativeauthority into claims in the most legalion institutions, alongs systems. In some countries, ajudgment made on the investigator’s authority into a claim has noresponsibility for compensating the parties' loss, whether limited or absolute.According to Principle 171 of Iran's Constitution, if a judge causes a loss toa litigant and it is due to the neglect or mistake of the judge, there is noresponsibility for compensation. If the loss has been caused with the judge'sintention and is deliberate, civil responsibility would without question beimposed on him. Now that arbitrators like the judges investigate the claim,are they also placed under the terms of Principle number 171 or vice versa?In this essay we discuss how judges have civil responsibility for the lossessustained by Parties to a claim and under what circumstances they are notliable under Principle 171. Therefore the scope of the judge's responsibilitycontains a specified aspect and it is different from that under the generalrules of civil liability.

According to some articles of civil procedure code (as articles 135, 136 and 143) some ancillary actions (such as counter-claim and impleader) should be made within certain time-limits. In case of not considering the time limits and bringing these actions outside the time-limits, there are three theories; A) dismissal of action, B) separating the action and trying the claim separately C) differentiating between the cases related to the main claim and the non-related ones, trying the firstones together and trying the latterseparately. There are viewpoints, reasoning and criticisms about acceptance and rejection of each theory. However, reasons of the third theory are stronger and its criticisms are weaker. So this theory is more acceptable.