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

One of the most important crimes is theft.This theft, depending on the case, may be done by one or more people.Obviously,one of the guarantees of the serious and main execution of the crime of theft is the restitution of the property by the thieves.In the assumption that several people commit theft, i.e. steal another's property together, the main question is, to what extent are these people responsible for returning the property?Is their responsibility joint and several or relative?In response to this question, there are many differences of opinion in the judicial procedure.The majority of courts, especially the Supreme Courts, have strongly opposed the joint liability of partners in theft.Of course, there are few judgments that do not agree with this, and this conflict of opinions provided the basis for issuing a unified judicial precedent.According to the unified judicial precedent No.799 dated 2020/10/06,the responsibility of the partners in theft is relative; this means that they are responsible for the amount of property they have stolen, and if it is not possible to determine the amount of property, their responsibility is equal.Despite this, the unified judicial precedent No. 799 can be criticized.In fact, it appears that the liability of partners in theft is joint and several.In other words, the thief is the usurper, and according to the rules of usurpation,the responsibility of usurpers is joint and several.Of course, the imposition of joint and several liability does not mean the final establishment of responsibility,rather, each thief is responsible for the amount of property she/he stole, and if it is not clear how much each thief stole, their responsibility is equal.However,the purpose of this article is to answer the aforementioned question in an analytical-descriptive manner and with a broad look at judicial opinions, jurists' opinions, doctrine and emphasizing on the mentioned unified judicial precedent.

Global development is the result of rapid, dramatic and unprecedented advances in science and technology and especially international communications. Undoubtedly the implementation of important development, industrial and economic projects requires the cooperation and interaction of various people and specialties and also investment security. The most important form of providing security for a country's foreign investment is achieved through national legislation. The Iranian legislature, following the developed countries, first in the article 107 of the Fifth Development Plan Act and subsequently in the article 24 of the Permanent Provisions of the Country’s Development Plans Act, has introduced the legal framework of the "Economic group with common interests" in one article and its following notes, to the legal and economic community of the country, stipulating the formation of these groups in the form of "Civil Partnership" and has explained the limits of the obligations and powers of the group’s members. However, in this law, cases have been raised by the legislator that are basically inconsistent with the rules of civil partnership and although this law is practically an adaptation of the law of France, the ratified text is fundamentally different from the French regulations. On the one hand, the legislative stipulation on the formation of a group in the form of a civil company implies the provisions of the civil law under the title of partnership contract which exclusively deals with the management of common property, but such rules are basically not enough to form and run a group. On the other hand, some of these regulations are not commensurate with the goals and functions of the group. In addition, the guarantee of non-compliance with the conditions set forth in this article is generally unexplained and it is not clear what responsibilities will be assigned to the members and managers of the group. It also emphasizes the joint and several liability of the members for the debts of the group

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.

Being the litigant of the insurer together with the responsible of the accident is legally and economically justifiable for the injured party, but explaining the responsibility of multiple defendants to pay a single debt is one of the problems of the judge in issuing a verdict; In such a way that in some cases the subject of litigation to one of the defendants is silenced or the litigation is completely rejected. The purpose of this study is to explain the position of the insurer and the person who caused the accident in the lawsuit with descriptive and analytical methods, in addition to recognizing the need to decide on each of them, to explain their responsibility in the sentence and to provide logical theories for compensation. The inference of the independent or collective liability of the insured and the insurer is based on various reasons. Sharing liability between the insured and the insurer has no logical or legal basis, and the liability of the insurer's collateral does not serve the purpose of better compensating the injured party. Court waiting for invoking the injured party to the insurance contract also does not solve the problem of explaining the liability of multiple defendants, and differences in the type and amount of liability remain. Recognition of joint and several liability of the insured and the insurer in the Compulsory Insurance Law adopted in 2016 is compatible with the aim of better guaranteeing the injured party, and some law bases and legal justifications justify the need for the theory of joint and several liability of the insurer and person who caused the accident.

In domestic legal systems, Joint and several liability provides the best assurance that the plaintiffs will be compensated for their loss. The rule means that when multiple defendants are found to have caused the same damage, each defendant can be obliged to pay up to the full amount of the loss suffered. It is common in international practice that several states or international organizations contribute together to the indivisible injury of a third party. Therefore, due to the fact that there are situations in which two or more international persons share responsibility for their contribution to an indivisible injury of third persons, is it possible to apply the principle of joint and several liability in the concept of domestic law regarding distribution of reparation in situations of share international responsibility? According to this study, based on the general principle of law as a source of international law in Article 38 of the Statute of the International Court of Justice and due to the relative lack of development of the rules of international responsibility in this field, comparison with domestic law is possible. Yet, the implementation of joint and several liability in the international law system will face the obstacle of the jurisdiction of international courts.

In the EU Council Directive to Protect the Consumer, ratified in 1985, strict liability is accepted as the basis for civil liability of the producer.In Iranian law, there is disagreement among jurists regarding the basis for the legislator's choice in the Protection of Consumers’ Right Act, ratified in 2009.The bases for producer’s liability in Article 2 of the aforementioned Act is not clear. Moreover, it is not clear whether in the production and distribution chain, the suppliers have joint liability or several liability, and to what extent such liability may be extinguished through exclusion or limitation of liability clauses.The results of the research show that civil liability in the EU Council Directive to Protect the Consumer, contrary to the general rule of liability, has been enshrined based on non-fault or strict liability. Thus, claiming damages from the producer and distributor does not require proof of fault.

Although the principle of separability of obligations is not mentioned explicitly in the civil code, many cases of its application in the civil code leaves no doubt about the authenticity of separability of obligations. Interpretation of intention, induction in civil code and some regulations about right of rescission prove separability principle in the Iranian civil code, and when invalidity, ineffectiveness or termination of part of an obligation occur, according to the Separability principle, the invalidity, ineffectiveness or termination will be effective only in that part and the other parts of the obligation remain valid.separability of obligations occurs in regarding to subject of obligation, plurality of parties and source of obligation (contract and condition) and in some cases as inseparatable nature of subject of obligation or explicit agreement by the parties about inseparability of subject of obligation or joint and several liability, obligation separate is impossible and these cases considered as exceptions to principle of separability of obligations. This article attempts to clarify principle of separability of obligations position, scope and exceptions by research in Shiite jurisprudents point of view and induction in Iranian civil code in compare with modern French civil code (In accordance with the reforms 2016).

Distribution of reparation in situations of shared responsibility has always been one of the main challenges of responsibility in international judicial proceedings. In all cases of shared responsibility, the question arises as to which entity is responsible and how responsibility should be distributed among several factors. The Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) and the Draft Articles on Responsibility of International Organizations (2011) provide only limited guidance on the distribution of reparation. Likewise, the international jurisprudence has made brief references to the sharing of reparation among joint agents. Distribution of reparation to joint agents is done separately, taking into account the extent of the responsibility of each of the agents for causing harm and damage. Although, as defined by the International Law Commission, causality has no place among the constituent elements of an international wrongfulness, it is one of the main means of distributing compensation. Moreover, the analysis of the relationship between different instruments in different situations of shared responsibility can be found to have an effective role in the distribution of reparation.

Attachment liability is one of a set of obligations in which several officials are committed to the ‎domain without the common interest and representation of one another, and each of them is ‎attached to the other. Of this kind of liability, there is no liability in the laws of the name of the ‎name, but some examples can be found in different laws. This has made it possible, in the sharing ‎of this responsibility with the‏ ‏joint and several responsibility from the aspect of the debt issue ‎unit, to consider the liability of the attachment as merely a branch of the joint and several ‎responsibility and make their separation unjustified. In this article, by analyzing these ‎responsibilities, their commonalities and differences were stated and the distinction between ‎these two responsibilities was discovered. Also, in order to identify the basis of attachment ‎liability and considering its social‎ implications, we have examined this in two categories social ‎basis and legal and given that the lack of advice on this responsibility, we have outlined a number ‎of important and controversial cases to provide a clear basis.‎

Among very important and influential issues involved in automatic liability are two issues of “combination of perpetrator and cause” and “combination of multiple causes” in committing loss. Article 526 of Islamic penal code covers the former while Articles 533 and 535 address the latter. However, there are two important criticism that can be raised against the legislator: first, the legislator fails to hold one stance in these articles; and second, provisions of the said articles are intrinsically problematic and questionable. Explaining the reasons of and providing a critical analysis of the change of stance of legislator in the said articles, this research provided a comparative study and suggested the view we deemed to be better in terms of quality of liability of multiple perpetrators of loss.

The study shows that the joint and several liabilities in business companies is contractual. The nature of this liability is stipulation in favor of third party. The history of legislation and the ideas of famous jurists in relation to effect of guarantee have created the ambiguity in the acceptance of the joint and several liabilities. Before the victory of the Islamic Revolution, the joint and several liabilities were expressed in several cases. After the victory of the Islamic Revolution, the legislator deleted some of the legal joint and several liabilities and in some cases restated it. By studying the legal joint and several liabilities, it was found that the legislator has accepted it. This acceptance shows that the contractual joint and several liabilities arent in contrast with the law and Sharia, because the objection of jurists is available in legal joint and several liabilities, too. So, business companies with contractual joint and several liabilities are justifiable in the law and jurisprudence.

The legislator of the Islamic republic of Iran predicts bankruptcy of several liable in Article 251 of Commercial Law. According to this article، several questions are left unanswered: Whether the legislator protects from the holder in condition that several liable were bankrupt or not? Whether the holder has priority or not? What is the position of the United State’s law in the presumption that several liable were bankrupt? The just protection from the holder in Iranian law is joint and several liability of the liable. In Iranian law، the holder has not priority. In the United State’s law، liability of the liable is not joint and several، and also the holder has not priority. The legislator does not accept the theory of provision in the Iranian and the United State’s law.