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

Comparative law, as a method for the development and reform of national law, plays an important role in the dynamics of legal science, especially in private law. It enables legal scholars from different nations to draw on the experiences of other countries, offering proposals for the reform of legal concepts. On one hand, comparative study in private law facilitates the understanding of domestic law by revealing the different interpretations and solutions that exist in other countries through comparison and juxtaposition. On the other hand, by clarifying the strengths and weaknesses of domestic law, it allows for the utilization of achievements from the countries under study to address and improve deficiencies through legislative and judicial action. Furthermore, it provides a valuable opportunity to present the strengths of domestic law to international and foreign regulatory bodies.This research, conducted using a descriptive-analytical method and utilizing library resources, first examines the role of comparative law in private law across both civil law and commercial law branches. It then deepens the study with a case analysis of the obligation to pay, which is increasingly utilized in civil and commercial contracts and serves as a common example to elucidate the practical function of comparative law in both branches. It aims to demonstrate how comparative study and the juxtaposition of legal institutions can significantly contribute to the nurturing and engineering of legal institutions, especially concerning the institution of obligations and its reform within the context of private law, and to serve as a source for presenting innovative solutions. To clarify the practical role of comparative law in private law, which is the most suitable branch for comparative study, a case study of the obligation to pay in the legal systems of England, France, and Iran reveals the necessity for reforming the deficiencies in the regulations regarding obligations within domestic law. The experiences of the countries examined indicate that, firstly, to prevent potential abuse by contracting parties, especially in cases of imbalanced power where contracts are imposed, there should be a possibility to limit the principle of autonomy of will and contractual freedom, as well as to adjust the obligation to pay in order to establish equitable exchange and economic public order. Secondly, the framework for this intervention must be clearly defined to apply only to unconscionable, oppressive, or unreasonable terms, as failing to establish such a framework can disrupt contractual relations between the parties. Therefore, through comparative study, it is essential to legislate for the possibility of controlling the freedom of will of the parties and adjusting the obligation to pay as an exceptional measure, with a clearly defined framework and criteria for its application.

Absence of a legal framework for resolving commercial disputes and distinguishing them from civil contracts, made it necessary to create solutions to find an effective mechanism. This research aims to examine the structure and importance of commercial courts by using the indicators to distinguish commercial from civil contracts. This research is a descriptive-analytical type and has tried to achieve a coherent understanding of this issue by analyzing the researches related to commercial courts and differentiating them from general-law courts. Since one of the obstacles to foreign investment in Iran is the lack of commercial courts, the role of expert judges in dealing with commercial cases in the development of trade, facilitating investment and improving the economic indicators of today's societies is undeniable. Despite the formation of specialized commercial courts in French, British and American legal system and the emphasis on its legal and economic needs, the creation of these courts is still one of the reforms and necessities of Iran's judicial system. The establishment of these courts, in addition to being specialized aspects, can help speed up, reduce costs and make more reliable the processing of commercial claims that originate from the inherent and unique features of commercial law. Therefore, all efforts should be made to determine the structure and importance of these courts and in this way help the country's business and economy.

The institution of temporary order, which is also interpreted as urgent proceedings, is the institution that the petitioner requests from the court to prevent the violation of his rights in cases of urgency.The provisions of this order are stated in articles 310 to 325 of the Civil Procedure Law and it is possible to implement it in the lawsuits of commercial companies.Among the examples that can be mentioned in the field of lawsuits of commercial companies, the request to issue a temporary order to prevent the invitation of the ordinary general assembly of a joint-stock company, to prevent the issuance of shares in the capital increase of joint-stock companies, to prevent the issuance of shares of a private joint-stock company in Stock Exchange, preventing the issuance of share certificates or temporary share certificates in joint stock companies, preventing the issuance of share certificates or temporary certificates of anonymous shares in joint stock companies, preventing the arrangement of preferred shares in joint stock companies, preventing the publication of invitations Convening the second meeting of the ordinary general assembly in joint stock companies, preventing the distribution of annual special profits among the shareholders in joint stock companies, preventing the publication of announcements for inviting general meetings in joint stock companies, preventing the meeting of the board of directors in joint stock companies, They are aimed at preventing the capital increase of joint-stock companies, preventing the transfer of property and assets of the partners of the limited liability company, and preventing the distribution of benefits among the partners of the joint ventures.

Commercial documents, which are means of payment in commercial transactions, are considered a tool to help regulate commercial relations such as buying and selling, transportation and providing services and establishing order between merchants, and this role makes the mentioned documents more important and the existence of regulations It is necessary to be precise and comprehensive about them. In this research, the author is trying to refer directly to the sources and references in a library way and by using descriptive-analytical analysis to all the mentioned cases in this regard and how the signatories of commercial documents are responsible in paying for these documents in Iran with a view Respond to business rights and discuss them more carefully. The most important function of commercial documents is that they are a means of non-cash payments. Identifying the function of these documents as a payment system can be very effective in the realistic description and functional analysis of these documents. An approach that by using the economic analysis of the desired or efficient performance of these papers is the answer to many legal issues surrounding them.

Explaining the rules and regulations on payments of the board of directors in companies is very important for determining the legal duties of companies. In addition to the theoretical aspect, this issue has a wide range of practical effects on the companies. In this study, first, by examining the theories of relationship between the board and the company, the nature of the legal relationship of the board with the company is explained. According to various theories, there are four types of relationships for the board of directors with the company. 1) According to attorney theory, they are attorney of the company. 2) According to another theory, they are Legal agent of the company. 3) Some jurists consider the board of directors as employee of company. 4) And finally, the Organ theory that consider the board as a Pillar of the company. After rejecting the first three theories, the organ theory is accepted as a type of relationship between the board of directors and the company. according to this theory and the analysis of executive circular and legal article related to the payments of the board of directors in the commercial law, direct tax law, labor law, social security law and unemployment insurance law , it was found that the executive circular in some cases contradict with the relevant laws. Therefore, according to the importance of joint stock companies and the role of the board of directors in leading them, it is necessary to review and integrate the proposed laws.

The historical studies shows that Imamiyah jurists have not thought that there is no difference between mortgage (Arabic: رهن rahn) and pawn but they have defined rahn as loan collateral. But with the consideration of the limits of mortgage contract in our legal system and the impossibility of applying rahn for some assets or promises, some authors have tried by presenting new theories to deal with these limits. One of these theories is the dualities of mortgage contract and pledge. If it is possible to confirm two characteristics “having particular name and specific conditions and decrees” in law for the agreement of the pledge it can be resulted that the mentioned contract is of nominate contracts. The study of the present laws show that the conclusion of the agreement in the form of the mortgage contract is not possible in most cases because of the absence of one of conditions. The legislator has used the term ”وثیقه“ (pawn). These rules can be applied from two sides: first they prove that it has legal base and it has used several times in different rules. Second the legislator has used the term ”وثیقه“ (pawn) in the cases which one of the provisions of the conclusion of the agreement is not and he has refused to apply the term ”رهن“ (mortgage) through this, he has created a modern foundation (establishment) in the legal system.