فصلنامه مطالعات حقوق خصوصی
سال چهل و نهم شماره 4 (زمستان 1398)

Law is essentially a social phenomenon, and therefore is in full association with other social sciences. A legal rule must be interpreted to be understood, and for interpretation, we will also have to argue therefore, the relationship between reasoning, interpretation and law is unbreakable. Besides this, the three categories of base, source and purpose of the legal rule are considered as the contributors to each legal system. Which are as a problem, is that if we are to seek social justice and fairness in law, why it takes shape different arguments, sometimes conflicting, in the same subjects? Will this not damage the realization of the order as one of the goals of the legal system? This phenomenon is explained as pluralism of legal argument, which is shaped by various factors, most notably ideology. The mutual relation between law and ideology in legal pluralism is controversial. Depending on what the ideology governing the mind of a legal practitioner is, his kind of argument in the interpretation of the legal rules will be equally different, which will be discussed in detail in this study.

Reforming official institutions as enacting economic laws and regulations and guaranteeing their implementation, these reforms need to form a collective action among its stakeholders. Although the formation of this collective action among actors with conflicting motives may increase the chances of such reforms succeeding, economic considerations face significant barriers such as transaction costs. After the theory of collective action for voluntary public procurement and transaction cost theory challenged the presumption of the omnipotent and benevolent government, how the decision-making processes within the public sector evolved. In this paper, we attempt to provide a conceptual framework for examining the transaction costs associated with the collective action of political, administrative, and economic actors to guarantee the implementation of laws as a voluntary public good. Such action requires the pursuit of information seeking, bargaining and negotiation activities, and ensuring that political, economic, and administrative actors perform the transactions. The results of the conceptual framework, developed on the basis of the combination of theories of collective action and transaction cost in this paper, show that 18 components influence the costs of collective action for institutional reform. The application of this framework for analyzing the enforcement of business environment facilitation laws, in particular the Law on Continuous Improvement of the Business Environment Approved in Iran in 2011 shows that in addition to the lack of legal enforcement guarantees and external oversight deficiencies, there are several components that can cost the collective action required to enforce these laws.

Issue of objective or subjective legal nature of shares and partners share was always place of difference for lawyers. Legal provisions in this regard have acted insufficient (poor). This caused the idea of some lawyers is that shares are considered among the subjective And accordingly, Contract transfer them to see for Transfer of debt. The purpose of this study is to disambiguation the nature of shares. Justifying of taxation on shares from the perspective of subjective nature of them is ambiguous. Incoming is taxation source due of business in its economic meaning (arts 17, 34, 119 to 123, 143 and repeated 143 of direct taxes act) that’s the meaning Makes a need to transfer the shares as an independent and integrated property. Studies library and taking notes from the sources, the main basis of this research is. The involvement of the subject of the study with issues such as taxation in the tax authorities has led to field researches by contacting these bodies and taxpayers. As a result; Topics mentioned Ownership interest objective explanation of the relationship between share and shareholder are known. Transfer of due not arising to actual acquire of income. Therefore, taxation on stock is not possible except in the form of a transfer of an objective property.

The issue of fraud against the law and its consequences, both in domestic law and international law, is one of the challenging issues about which there are different ideas. In Iranian law, there is not a legal article that clearly expresses the verdict of fraud, so a judge in the face of a fraud has to refer to and judge with valid sources or reliable jurisprudential Fatawa (Islamic Shariah and jurisprudence) according to Article 167 of the constitution. But the truth is that there is nothing about the fraud in the jurisprudence and there are some other topics which can be compared with the fraud. Reviewing these topics and comparing them with the fraud in this paper shows that we can not express a certain verdict about the fraud and it depends on each topic.

FRAND license as one of the strategies based on intellectual property law adopted by standard-setting organizations, faces technologies which have become technical standards because of their importance in particular art. Such license has significant role in developing technical standards, exploiting and transferring essential standard technologies. Having contemplated in approaches raised in different legal systems, this paper in descriptive – analytical method is going to clarify the notion of FRAND license and survey the situations that lead to employing such agreement by undertakings and competent authorities. The results show that drawing the structure of FRAND license by standard-setting organizations and courts has encountered serious challenges which in its turn has had adverse effects on determining process of rights and obligations of parties as well as using essential standard technologies. Iranian law lacks legal essentials in applying FRAND license and existing general rules impede extensive and efficient exploitation of such technologies rather than solve the problems. Accordingly having analyzed the driftnet aspects of subject and benefiting legal experiences and findings of other countries, current paper tries to provide some suggestions and approaches confronting particular matters of FRAND license in Iranian law framework.

Plagiarism means copying intellectual work belongs to another and passing off as one’s own that is overlapping with Intellectual Property Law. Hence, many academics think these two terms as synonyms, but this is a false impression, and all instances of plagiarism, such as the use of the idea of another, or self-plagiarism, are not subject to intellectual property law. The present paper tries to investigate the elements and enforcements of its implementation by analytical-descriptive approach and Library- empirical methodology (reviewing Sentences of Disciplinary Disciplinary Board). Finally, it concludes that plagiarism is just part of intellectual property law, but other part of it is subject to an independent system that can lead to administrative penalties.

In Iran law often believed that legal persons have full and complete capacity (Article 588 Commerce Act). But there are some doubts about legal person’s capacity in gratuitous contracts: 1. whether legal person can understand "beneficence" means and if such a sense is imputable to legal person? 2. Is gratuitous contracts compatible with legal person’s aims and nature; especially with commercial companies? 3. What is the range of state and public institutions capacity to gratuitous contracts? 4. Is there any capacity restriction to special gratuitous contracts such as testament; endowment; and personal suretyship? By analyzing the purpose of gifts and by induction from gratuitous contracts, except to cases which human relations and motivations are more important than financial aspects (such testament), or when a contract naturally specialized for human (such suretyship), or when gratuitous contract is incompatible with the subject, aim, and philosophy of the legal person, as a general rule any beneficence contract can be signed from legal person; whether as donor or donee.

Tort law is private law while the regulation by the state is public law. How should the two relate to each other? Tort law seeks to find the best person to bear the costs of conducts in social life and regulation seeks make obligatory standards of conduct that thought to be the best fo a civilized society but Both tort and regulatory law has regulatory effects and the aim of both is to shape the conducts of citizens. Many scholars have considered the link between these two but in a coherent system of conduct-regulation the aim of this paper is to analyze the role of the regulation in tort law. In this line some samples of this effect can be seen in many new laws like the case in which bringing litigation for a conduct of breach of competition law is dependent on a verdict of authority that tell a regulation has been breached. As will be concluded, regulation may mitigate tort law system and fill its gaps when the tort law fails to observes conduct regulation policies.

Linking to other websites content on the internet is a common practice which makes it easy for users to access their desired material. Two issues are raised as to linking. First, freedom of linking principle which has been justified by free nature of worldwide web and implicit authorization to link to all pages of a website by mere unconditioned presence on the web. The main reason raised by opponents is elimination of advertising profits of the front page of the linked website in certain types of linking. Another important issue is the probability of infringing the linked website owner’s copyright. Hence the need to analyze possible types of infringement i.e. direct and indirect infringement and material and moral rights exposed to infringement by linking. This article, through descriptive-analytical method, has studied the concept and different types and freedom or prohibition of linking and the relation between linking and copyright from the perspective of Imamia Jurisprudence and law and concluded that all links are not necessarily infringing and the advertising incomes of websites may be acquired through advertisements on deep pages and linking may be restricted through technological means.

Occasionally, the harmful act can be described simultaneously in the personal action, another person's action and object's action. This is an interesting question in French law that whether the victim’s claim can be based on the principles of all three responsibilities or he has to choose one responsibility and the court should choose one responsibility and which responsibility and it’s documentation is prior to the other. Therefore, one of the examples of the collection and option of responsibility is the determination of the domain of the personal action, another person's action and object's action. All three types of responsibilities are nowadays becoming the rule and it is necessary to determine the scope of each one. This issue has been raised in the French books of the law of obligations and from the induction in these cases, general rules can be found. Doctrine has not addressed this issue in Iranian law and the studying it in French law could provide the basis for its design in Iran which will be studied in a comparative manner.