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

Hoarding is one of the important economic issues that  impacts economic order and stability. In this article, an attempt has been made to examine the examples of hoarding in the light of the government's involvement in the market from a jurisprudential and legal point of view.

The present paper is descriptive and analytical using library method.

Ethical considerations:

 In the present paper, the originality of the texts, honesty, and trustworthiness are respected.

Most of the jurists consider the examples of hoarding to be limited to a few food items because they are essential food items. From the point of view of famous jurists, hoarding is forbidden, and the most important conditions for the realization of hoarding are the detention and storage of goods, the needs of the people, the lack of another seller, and the intention to increase the price. From the legal point of view, hoarding is considered a crime, and keeping it with the intention of increasing the price and monopoly is considered as hoarding. On the other hand, from the perspective of Islam, the government has the right to interfere in the economy and regulate the market in order to achieve justice and fair distribution of facilities and economic order and stability.

If the necessity and need in the society is established, the order to ban hoarding can be extended to all edible and non-edible goods that are necessary for human life today, and all the effects and rulings of hoarding can be arranged on them. In fact, since the government has the right to intervene in the market and the basis for banning hoarding is the essential needs of people's lives and preventing the double increase of prices, therefore, based on the right to intervene in the market, the government can deal with hoarding in order to achieve economic order and give examples of it to generalize other items.

The concept of monopolistic concession and the emergence of chartered companies are based on three bases: the identification and integration of legal entities, limited liability, and monopoly. The institution of legal personality first emerged in guilds and regulated companies and the limited liability company is the product of chartered companies. But, among the three aforementioned bases, monopoly is the most prominent feature of a chartered company, namely the disqualification of citizens from an economic activity and its assignment to an internal or external person. Chartered companies are not a thing of the past; today, "charter" is also a feature of state-owned companies that are established to serve the public interest, relying on monopolies in business within the framework of law. In Iran, the law grants legal personality to such companies. This article uses a descriptive-analytical method to examine the legal basis of the emergence and disappearance of chartered companies and its impact on contemporary state-owned companies.

The purpose of principles 44 and 46 of the constitution is to create competition, prohibit monopoly, efficiency and monitor the economy in order to increase the welfare of the society and create justice. Despite Article 46, no person is allowed to prevent the employment of others with respect to the activity and job they do, there is a suspicion of monopolization in the regulations of areas such as treatment. In this research, we will examine it. By identifying such regulations, it can be amended, In the current research, library and internet materials were used and descriptive-analytical method was used to check the data. This article seeks to answer the question of whether the regulations established in the field of treatment violate the principle of non-monopoly. As an answer, by stating the monopoly components in the policy implementation law, Article 44, reviewing existing regulations and laws, we will deal with the contradictions of these regulations with Article 46 of the Constitution in the field of treatment. Finally, we have come to the conclusion that in the existing laws and regulations in the treatment sector, some monopoly components such as the very low capacity of universities of medical sciences, anti-competitive obstacles through the non-issuance of licenses for traditional medicine doctors, determination of medical tariffs by the doctors themselves can be seen, that as a procedural solution, these laws should be amended first and As fundamental solutions, the general anti-monopoly policies law, article 46 is proposed.

Recognition of competent persons to initiate a claim regarding declaration of nullity of patent certificates is one of the most important and challenging issues in patent law. Two main questions may arise in this regard: The first question is who may be considered as a beneficiary in these lawsuits. The second question is whether it is necessary to establish the fact that a party is a beneficiary in order for him to file such lawsuits.According to the express wording of Article 18 of the Registration of Patent, Industrial Design and Trademark Act, approved in 2007, beneficiaries are allowed to file a lawsuit for declaration of nullity.In this regard, an in-depth analysis of the issue shows that the concept of the beneficiary in the lawsuit for declaration of nullity of the patent certificate is a broader concept than that of the beneficiary in the civil procedure;Since the benefit that is the basis of the filing of a lawsuit regarding the declaration of nullity of the patent certificate is not necessarily a private one, but that it may include a public benefit as well.Therefore, non-governmental organizations and consumers, subject to the establishment of a rational and logic benefit, may be considered as the beneficiaries of a lawsuit regarding the declaration of nullity of the patent certificate.Also, in some legal systems, all persons, even non-beneficiaries, have the authority to intiate this claim.In this article, we show that taking into account the necessities of patent rights, adopting such an approach is not recommended and acceptable.

Competition law is a critical tool for managing and regulating markets to increase efficiency, welfare and economic freedom.Since it is desirable to improve the efficiency and well-being of consumers in any market, competition rules can be applied in all markets unless a particular market is excluded from the scope of these rules for a valid reason. Since the issues related to competition law and domain names in the Iranian legal system and their various legal dimensions are unknown, this paper explores how to enforce competition rules in the domain names market. The paper analyses since providing the domain name is an economic activity, the companies supplying this product and related services, i.e. ICANN and all registries and registrars, are considered enterprises and subject to competition regulations. Moreover, exempting this market from the application of competition regulations has no economic justification and logic.Also, committing some anticompetitive practices by firms operating in the domain name market is probable and conceivable. It suggests that as the sole authority to review anticompetitive practices in Iranian law, the Competition Council, may apply one or more of the sanctions of Article 61 of the Act of the execution of the General Policies of Article 44 of the Constitution (2007) to the infringing undertakings in the domain name market.This article provides an overview of competition law enforcement in the domain name market, using an analytical-descriptive method.

Competition rules apply to maintain market competition, and competition authorities are responsible for implementing competition laws and regulations and preventing the undertakings from anti-competitive practices; However, alongside Competition authorities, in certain areas, mainly when markets face monopoly or intense concentration, lawmakers set up sector regulators to monitor the monopolies. In some countries, regulatory bodies are partly in line with competition authorities, but in some legal systems, they perform differently and sometimes are in conflict; On occasions, sector regulators consider an obstacle to the implementation of competition laws. Examining the powers, duties, and objectives of sector regulators and competition authorities, and how they operate in different countries, presents a variety of situations from conflict to interaction. In this article, this issue has been studied in different legal systems using a comparative approach. Finally, the Iranian Legal system's viewpoint has been discussed, reviewing the latest developments in the laws and regulations and the most critical cases of dispute between the Competition Council and the regulatory sector (telecommunications, pharmacies, Bar Associations, and car pricing), using a descriptive-analytical method.

The undesirable effects that impose on environment by various economic activities is not hidden to anybody and it is caused the demolition of uncompensable environmental sources. Our country environment is not safe too in contrast damages done by harmful economic activities and is susceptible various uncompensable injuries. In regardless harmful effects of economic activities to environment, the goal of this paper is the consideration the economic methods for protection of environment and effects of competition and monopolization of economic activities to emphasis in legal system of Islamic Republic of Iran. This research is analytic descriptive and author investigate by library method and arrangement index and reference to various books, papers and statute laws. The findings indicate that regardless the existence the economic and financial methods in all countries specially Iran in various statute laws, the government has been successful in liability the private section to the regard to environmental standards but it has not been successful in liability the governmental section to regard to environmental laws because more of big factories in Iran is governmental and also the management of department of Environment is governmental too.

Lease is one of the most important legal relationships that, by its economic and social dimensions, has been a main concern for statesmen of any country. In Iran, since modern legislation, the question of how to regulate the relationships has been subject to ups and downs. Civil Code may be understood as a starting point based on the autonomy of will (supply and demand). Influenced by some evolutions, the lease gradually came to be a critical contract so that statesmen authorized themselves to intervene in leasing relationships. Looking at such lease Acts proves such interventionist trend. The trend, however, ceased to continue following Islamic revolution and by passing of the 1376 Act, it came back to its starting point (Civil Code). Such a turning fitted to the idea of market efficiency. This paper examines the said interventions on the idea of market efficiency first by reviewing the lease Acts in terms of interventionism and then by using economic theory, it examines some situations known as market failures and shows that the interventionist Acts of lease cannot be explained on the basis of market failure.

The contract is a vehicle for the transfer of wealth, and the law of contract is the responsibility of regulating this transfer. The contractual freedom principle forms the core of contract law. The principle of the free contract is Interdisciplinary principle that derives from economic and philosophical findings .Contract freedom can be the result of economic freedom in law. Accordingly, it is the duty of governments to only protection people's freedom in formation a contract, and governments should not interfere in the contract with which they contract with each other, as they do not interfere in the economy. But over time, the concept of government, the scope of its activities and duties in the community changed, and the government, while maintaining the duty to provide order and security, was responsible for social and economic duties and prosperity, and the concept of a welfare state arose. The goal of the welfare state is to maximize efficiency and maximize wealth, based on the market economy and private property. Private law institutions are also considered as factors influencing the market economy and the contract is a vehicle for the transfer of private property. But experience has proven that free trade does not always lead to maximum efficiency and prosperity, as it became apparent to all that market agents, due to individualist interest, have limited horizons and no awareness and interest in the public interest. Economists say that the conditions that a free market cannot fulfill their goals (efficiency and optimal allocation of resources) are referred to as market failures. In this situation, the government must intervene. Economists, monopoly, information asymmetry, external effect and ... are among the most important market failures. Private law in general and the law of contracts based government non-intervention did not have the means to deal with these conditions. Therefore, public order was the most important legal instrument available to government intervention in the contract and restrictions on contract freedoms, and the courts were able to invoke it without the approval of the new law. Public order evolved along with the role and function of the state in the economy. The interventionist government has also become a regulating government to pursue the best interests of the community with the tools of public law, pursuing economic policies that are best suited to protect the proper functioning of the market. In this way, the scope of the influence of the principle of contractual freedom and the results of this principle, such as the freedom to formation contracts, the freedom to determine conditions, and the freedom to choose the transaction side, were limited and limited, to the point where some scholars spoke of the fall of this principle. Economic public order is the product of the twentieth century studies has come under the influence of new attitudes to the law, and in particular the economic look into legal rules. The economic public order is based on state interference in the economy and has two major objectives, which are, respectively, to protection the poor and regulate of economic system. The guiding public order approach is to regulate the behavior of market actors in order to achieve maximum welfare and maximize wealth. Although the goal of this approach is the welfare of the community, it does not directly act contrary to the supportive order and is directly aimed at implementing the macroeconomic policies of the state. Economics from the legal system in a monopoly situation is expecting to confront this phenomenon. The legal system must not only lead the market to competitive conditions but also eliminate the monopoly formation. To this end, competition law has emerged as one of the branches of public economic order. While justifying the involvement of the government on the economic public order, in this paper, we tried to investigate the question of what the Iranian system of law in the conflict between monopolism and the principle of freedom of contract was adopted? Efficiency and optimal allocation of resources are considered to be the goals of economics, which in some cases the market will not be able to materialize and will be in short supply. Therefore, government intervention through regulation to regulate the economy and returning to the above objectives is necessary in these cases. Therefore, in many legal systems, the legislature seeks to compensate for these shortcomings by imposing laws contrary to accepted civil rights rules. Antitrust law and laws are set up for this purpose. In Iran, the legislator has also endorsed the Law on the Implementation of General Principles of Article 44 of the Constitution, the Law on the Protection of Consumers and the Law Electronic Laws. The legislator has to make a detailed study of the economic situation of the country, and to consider the economic situation of the country and not to translate the laws of other countries and to use foreign law to implement it with domestic law. Moreover, the freedom of the contract, despite the limitation of the scope, remains the legal principle that its constraints should be regarded as exceptional and only in cases of necessity referring to the exceptions. Consequently, it should be treated with the same sanction for contracts that are detrimental to the competition, because of the opposition to the economic public order, and on the terms and conditions that are in conflict with the contractual nature of the contract which are detrimental to the competition and, as a result, compromise the contract. In contrast, if the condition is not in conflict with the nature of the contract and the ability to distinguish it from the contract, it should only cancel the condition.

The public contract in the Iranian law is kind of formation contract that subject project tender law (was passed in open session on Tuesday 25,01,1383 passed by the house with amendments and Guardian council), according to this law government administrative is obligated to put their work out to contract by tender. In this law a bid is the competitive process to provide the desired quality (according to tender documents), in which the transaction subject the obligation the lowest price offered is appropriate, be delegated. Government official had to performance this process when they need to contract with their contractors. Completion is keystone of public contract and must be open and transparent. In the competition process government administrators to be able to procure their goods and services in best quality and best price. This article is discussed about the competition and its efficiency to public contract process.

Iran's electricity market is passing its second decade of activity and achieving the goals of this market depends on the existence of a process called "competition" to provide suitable structures for economic growth and development. Achieving this, requires an ordered and legal organization which formulates behavioral rules, provides the competition environment and eliminates monopoly to increase efficiency and quality of the service. "Regulation Board of Electricity Market" is the main regulatory agency in electricity market in Iran. This paper aims to investigate the similarities and differences of this organization and similar organizations in the United States of America comparatively to specify the advantages, disadvantages and the current shortcomings of both organizations. The results show that considering the legal, political and economic systems of both countries, the regulatory agency of electricity market in the United States of America has better efficiency and performance.

Following the victory of the Islamic revolution, especially with the end of the war and considering macro-policies of the system based on the reduction of control of the state, competition law has appeared more than past in the area of the legislative. Besides, if the people acknowledge that the rules coincide with their beliefs, they show more commitment to it. Considering that according to the Constitution, regulations must be based on the Islamic criteria, to determine the rules governing the behavior of economic actors, they must be justified based on the Islamic criteria. The principle of 'no harm' is among the most important rules under discussion in the Islamic law, and several theories have been formulated for the provision of this principle. We explain the concepts of principle of “no harm”, and attempt to demonstrate that firstly the government (like every individual of the society) is affected by the concept of this principle, and secondly, if the provisions of the principle of "no harm" imply that the issue that a verdict has been rendered for it, if its primary effect causes harm to others, such award is declared null. In other words, it is improbable that the legislator enacts a law that will harm others; therefore, by relying on this principle, the validity of the said rule will not be recognized.

The research and development sector in the pharmaceutical industry is very complex, and companies are constantly engaging in competition with each other for opening of their new products. In fact, the generic producers because principally have no research and development programs, are economically able to offer their products to the market with lower prices. Finally, this difference in cost can cause erosion of market share of the originator companies and consequently leads to the withdrawal of originator of the competition. For all these reasons, the originator companies tries to delay their entry or make them encountering the dead-end by getting the patents certificate and the related legal support to it and in the next stage by conducting the transactions with generic producing competitors, and protect their position in the market. The instances of these transactions are considerable in the contracts and the conflicts that are posed and discussed out-of-court. These transactions for the reason that it can be effective in commercializing of medicinal products and at the entry of generic producing competitor to the market, considered a satisfactory technique to protect the economic interests of Originator Company, which sounds very deliberative. Such agreements are currently placed under the anti-competitive practices. And the European Commission considers it irrelevant to the legal protection of intellectual property and an illegal practice contrary to the competition law rules to pay the fund in exchange for keeping generic makers distant from the market with the incentive of maintaining the market share and increasing the profits rate of the major manufacturers. This is despite the fact that the Federal Trade Commission of United States of America has taken a different stance on this issue.

The market for cultural and artistic goods has long faced two fundamental problems: unavailability of the copy right holders to the clients, and the illegal usage of intelligent properties of others. These difficulties along with economical considerations have led to the formation of the Collective Management Organizations (CMOs), who closed the communication gap between the producers and the users of their products. Considering the present expansion rate of the usage of all forms of arts, it may be impossible to protect the copy rights without the intervention and management of the CMOs.
The international policies to require the enforcement of a basic standard to protect the rights of the intellectual property owners within the international community in the recent years has brought special attention to the CMOs in our country. Obviously, formation and development of these organizations largely depends on their interaction with various legal entities and making their presence known to these entities.

Monopoly rights in our legal system is one of the new issues that there is no comprehensive bill to understand all its dimensions and aspects, and the existing laws do not have the required efficiency due to its dispersion. To solve this problem, a new law entitled the “General Policies of Article 44” and “Amendment of the Fourth Development Plan and the implementation of the general policies of Article 44 of the Constitution” were adopted that caused economic opportunities for the development of competitive environment and to cancel. state monopolies and at the same time it resulted in serious problems, as far as, despite the reduction in government ownership, desired results have not been achieved. Therefore, in this article have been tried to analyze the following matters in the legal lexicon: History, definitions, origins, resource and the basis of applying the anti-monopoly rules application, civil responsibility, law enforcement and finally the losses incurred to persons in violation of anti-monopoly laws in Iranian regulations. With respect to analysis positive regulations, we can concluded that the main basis for competition law and monopoly is public order because it results in achieving justice in society and public interest, And ‘Principle of no Harm’ can be invoked only when we are certain about the losses. About law enforcement of monopolies, unfortunately, due to the vagueness and deficiency of the Iran’s law, legislatives regarding the validity of the contract. Therefore, in many cases there are no appropriate legal enforcement and specific legal order. In other word, relative deficit of executive mechanisms in the regulations has made it difficult to control monopolies. In association with the basis of compensation in violation of anti monopoy and competion law, persons aggrieved by monopoly and violation of competition law based on ‘Principle of no Harm’ and civil liability provisions (especially article 1 of the law of Civil Liability) and special conditions of this regulations, have the right to claim damages.

To enforce general policies of article 44، ''law of enforcing general policies of article 44 of the constitution'' was recently approved by Islamic consultative assembly. The main objective of the present paper is analysis and study of aspects of criminal policy inserted in the law through identification of criminal behaviors and predicted responses. With respect to criminal phenomenon، study the different substances of the law implies diversity in behaviors in the form of traditional and modern crimes. So، different considerations form the basis of criminology including investment facilitation، preventing interferences in assignment process and supporting new rights called competition rights. In view of time، responses are divided into action and reaction responses. Privatization، disregulation، civil participation، determination of behavioral codes are action measures considered in this law. Reaction responses are also diverse and include different types of penal، administrative، civil and amendatory responses. Criminal policy inserted in the law coupled with aforementioned features indicate legislator moving to new items of removing crime، penal and judge.

File Sharing of the literary and artistic works are popular among different social groups.The advent of file sharing technology has allowed consumers to downloading and uploading music, books, video games, and other protected works. Download and Upload works of literary and artistic works are considered the exclusive rights for owners, thus it has considerably weakened effective copyright protection. Copyright exists to encourage innovation and the creation of networks, in other words, to promote social welfare. We analyze it through descriptive analytical method as the exception of copyright and highlight the different aspect of the file sharing and in final it will be allowed based on the equity doctrine.

The most fundamental issues of market is competition, because the market is without competition Does not exist and consumer rights, Investor security and transition and national development not be achieved. Thus the functional guarantee competition in the supply and demand, in the horizontal and vertical markets, not be a problem. Under the Regulation by government to intervene in the market occur that is said "Market Order". Therefore, for organizing the market situation, government Should be attended to regulation for competition in the market and the fight against monopolistic behavior. In this paper we two competition law of Iran (2007) and French competition law (1986) and to compare these two objectives through the operation of commercial law, especially imitation Iran from France in commerce law to review the shortcomings of competition law in Iran and solutions in France.

Limitations and Exceptions of Copyright is a main issue in the Intellectual Property Law and it determines national welfare. Limitations and Exceptions strengths the community. Thus, the justice among the owners and the community is essential. This article attempts to study the structure of Copyright and Limitations and Exceptions and provides appropriate recommendations.