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

The study of Iranians’ tort related writings explicates that most of the top jurists believe that there is a maxim called “the principle of full compensation”. Provided that the other two requirements of liability (causation and harmful act) exist, this principle states that all damages, regardless of their type, should be compensated without any need for a specific law prescribing the liability to compensate that kind of damage. Case law is in doubt on how to react to this principle and has since taken two different approaches. Contrary to popular belief, however, our search in the philosophical foundations (and also in the main goals of tort law) shows that there is no theory that stays adamant about compensating all kinds of damages in any circumstances. From only one theory we can infer such a principle, but because of some major defects in this conclusion, it has been widely criticized by tort law philosophers.It seems that the belief in such a principle (of full compensation) is not acceptable neither practically nor theoretically; it is unfeasible in practicality and reduces the power of tort law in organizing and arranging different kinds of social activities, and it is theoretically unsubstantiated. In this article, I propound this idea that invoking this principle should be avoided by our jurists, and as well as our courts.

Nowadays, in the framework of private law, most legal systems prefer to provide remedies and compensation to an injured person in violation of law or breach of contractual undertakings. The amount of the award limits to the loss of the injured. However, in some cases the injured person rather than seeks the incurred remedies or compensation, it seeks the restitution of the benefit that wrongdoer has gained by breach of victim’s rights. Although focusing on the gain-based liability instead of loss-based liability has been considered in Common Law for a long time but it is controversial as to the foundations of restitution for wrongs. With the descriptive-analytical method, the article explains the concept and definition of restitution for wrongs. While it illustrates some foundations of restitution for wrongs, it examines the foundation of such an institution in the Iranian Legal System. The article shows corrective justice cab be considered a foundation for restitution for wrongs in Common Law. Also, the rule “No man shall profit from his wrong”, the Lucrative Fault and social interests in tort law may provide the solution to accept the institution in Iranian Law.

In an event that more than one factor is involved in the occurrence of a loss to another, after having obtained that two or more factors caused a loss to another, each of them will be responsible for the compensation of the victim. But how is the share of responsibility for each factor determined and on what basis can each share be determined and the amount of damage distributed? Three criteria have been raised in this regard, distribution of responsibility in equality, distribution of responsibility by the extent of influence and distribution of responsibility by the degree of culpability. In this paper, by describing the various assumptions of multiple tortfeasors,  each of these criteria has been investigated according to the arguments and legal principles and objectives of civil liability, and it has been proved that the primary principle is the distribution of responsibility to the extent of influence, and with the lack of evidence and proof for the difference in influence or equivalence of the actions of the responsible actors in causing loss, the distribution of responsibility in equality is applied.

Since 1971, and concurrent with the dissemination of John Rawls’s theory of justice, his views on the concept of justice and its execution in the society has been at the forefront of the recent theories in the twentieth century. In the second principle of this theory (called the principle of difference) Rawls focuses on substances such as distributive and redistributive justice, material justice, inequality in favor of the poors and vulnerable deciles and ensuring welfare for all.
As we do not expect law and specially the branch of civil responsibility to be indifferent to new approaches toward justice, this essay tries to analyze  the first article of the Iranian civil responsibility Act in the context of Rawls’s theory.It is assumed that this article plays an important role in the legal system in this country. From the authors point of view the discussed article contains some characteristics like following legal formalism, centralization on formal justice (vs. material justice) and tendency to execute corrective justice (vs. distributive or redistributive justice). These features lead to obvious differences with Rawls’s considered approach about justice and equity.

In the Iranian laws, loss distribution is mainly the case when two or more causes impose damage and the interference of each one in the realization of damage is the basis for damage distribution between them. In common law, damage distribution in civil liability is considered in a broader sense and it is differentiated from the number of causes. In fact, under loss distribution, those cases are considered where the damages that should reasonably be paid by the imposer are distributed among members of the community via some mechanisms. Mechanisms that distribute damages are strict liability and insurance. Justifying participation of a group of people, who have no role in this damage and giving indemnity, is possible via economic meanslike promoting economic efficiency and realizing distributive justice in society and this is the subject of present study to investigate and analyze these basics.

The governments increasingly have intervened in contracts in recent decades. The nature and the foundation of these new interventions have been controversial and different viewpoints have introduced about them: First viewpoint treats these interventions as continuation of early ones in contracts and bases them on corrective justice. But, according to second viewpoint, these interventions are considered as paradigm and different from early interventions and based on distributive justice. This viewpoint is resulted in the rule of the public law in some areas of traditional contract law. Finally, this article concludes in favour of second viewpoint ofter scrutiny of different viewpoints.

Securities transactions, like any other transactions, are primarily subject to contract law; however because, of government intervention in trading, these securities, by passing special legal regime called “securities regulations”,can not be considered as a subject of pure private law any longer (corrective justice) as they are also now in a sense under public law (distributive justice).
If we consider that conflict rules are only applied in private law cases and their application in public law cases has been, generally, prevented by legislators, a challenge for private international law is inevitable in cases that securities transactions place in the field of public law. So, if the court describes the case as a matter of private law, conflict rules can be applied, but if the judge describes the case as a matter of a public law, applying conflict rules is not permitted, and the courts usually apply their own countries, legal regimes.
In this article, we initially try to shed light on different legal regimes to the extent, which is related to the securities law including property law, contract law and securities regulations. Then we study the possibility of applying conflict rules in each legal regime.

Despite of developments that have taken place in the systems of liability، fairness is yet effective. The role of fairness in the theory of justification of liability (corrective justice، distributive justice، and efficiency) and instances of that in the basics، parts and effects of liability، propose this question that if fairness is principle or exception? We tried in this essay، by induction at different parts of liability، to study the role and position of fairness in liability. This research shows the developments taken place in the basics of liability، spread of part of strict liabilities، system of distress liability، the role of lost fault، appearance of the concept of fault-profit، debt due to liability، etc. are based on fairness.