فصلنامه پژوهش حقوق خصوصی
پیاپی 32 (پاییز 1399)

Abstract Research on value of doctrine in law stems from a question about the sources of the positive law. The fundamental question is Do the rules made by legal scholars have such a status that they are directly a source of law without being included in the law? Doctrine has always played an important role in deepening our understanding of concepts, organizations, and legal rules. Basically, a source of law is an authority that can set general, universal and binding rules on behalf of the general public, and the product of its work must be binding on all. The doctrine hardly fits into this definition. Today the doctrine is not a direct source of law and the courts cannot put the opinion of legal scholars under the same title. However, in the present era, in Iran, the views of legal scholars have been accepted to a limited extent under the heading of "valid fatwas" as a source of law. In this article, while examining the conceptual realm of doctrine, its position as a source of law has been criticized. 

the principle of dominance of the parties to the determination of the matter of the dispute, which is known in French law as the principle of dispositif, requires that the judge have no right or obligation to determine the matter of the dispute and its territory. The Judge is obliged to deal with disputes within the scope of the matters determined by the parties. nevertheless Sometimes what the plaintiff mentions in his petition has such rational and logical affirmations so that it is impossible for the judge to handle the litigation without addressing them. The reluctance of the court to deal with these instances stems from the fact that these matters have not been explicitly and directly mentioned in the petition, but according to the nature of the claim, the proving the demand would requires proof of its necessity. In this article we are trying to prove the hypothesis that the demand proves rational and logical requirements and it is not in conflict with the principle of dominance of the parties over the matter of fact and the principle of immutability of litigation.

Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention Of The Parties ,Having No Alternative Must To Interpret Of The Content Of Arbitration Clause ,Upon The Principles And Rules of Interpretation Of Contract .But Legislator In Some Cases Imposed On Will Of The Parties Of Contract ,Accepted Of The Arbitration Clause Or Referring Of Claims To The Jurisdiction Of Arbitral Tribunal And Contractual Nature Of Arbitration Clause Has Been Extinguished Or Limitation .In These Cases If Content Of The Arbitration Clause Faced With Ambiguity And Necessitate Of Interpretation, Arbitrator Must Intended To Detection Of The Legislator Will ,Upon The Principles And Rules of Interpretation Of statutes And Discussion Of Detection Of Natural Will And Common Intention Is Ceased .In This Article Interim Of Making Clear Nature And Criterion Of Distinction Of The Compulsory Arbitration Clause ,Causes And Grounds Of Independent Arbitration Clause Necessity From Basic Contract Present By Application Analysis And State Of Some Cases In The Law Of Iran.

Examining the Problems of priority the “Specific Performance” over “Termination of Contract” in Respect of Economic Abstract Including the fundamental question of the Economic Analysis of Law is problems of priority the specific performance over termination of contract that has occupied the minds legal and economic scientists. On the Legal Systems of Iran and America, these problems Subheadings the enforcement process, social norms, judicial error, jury trial, mitigation of damages and opportunism must be studied. Then, the solutions of mentioned problems in order to effective the provisions of Iranian Law in respect of economic outlook to Law. Of course, as a findings this article, mentioned problems is removed in two ways specialized approach to contract and the priority the specific performance and termination of contract based on their characteristic (ordinary, commercial and consumer contracts) or the internalization of external costs resulting from specific performance or termination of contract and process of settlement of contractual disputes can be resolved which will be discussed during article. the aim of this article, analysis of the above problems by adopting a comparative approach and Proposals for the reform of legal regulations of Iran in field of remedies of contracts.

As the judicial procedure ensures proper and lawful implementation of the law and statuary regulations, arbitration agreement is made for being sure of good performance of the contractual obligations. It is not exaggerate if assert that the parties may conclude the main contract based on its arbitration clause. So, it is expected that the arbitration agreement or clause has a firmer position than a revocable contract to have a proper function with the wills of the parties. In legal writings and lawyer’s views there is no definitive opinion as to whether or not an arbitration agreement or cause is revocable or Irrevocable, in addition article 481(1) of civil procedure law states that written agreement between the parties is necessary to decline the arbitration agreement which it associates irreconcilability of the arbitration agreement but in article 481(2) has considers death as a cause of declining the arbitration agreement. Researchers have neglected on literal and historical interpretation of the regulations on arbitration. In this research has been attempted through the aforementioned approach means literal and historical interpretation, stabilize inefficacy of each party’s death on arbitration.

Traditionally, in the legal system of France, the fundamental change of circumstances at the time of conclusion of a contract and its impact on the contract and parties to the contract raised two reactions. 1) A legal rule which specifically pertains to the fundamental change of circumstances at the time of conclusion of the contract, namely “imprévision”, which was mostly applied in administrative contracts 2) the other concepts which are not specified to the fundamental change of circumstances at the time of conclusion of the contract, however, they were applied in specific conditions, to avoid inappropriate results arising change of circumstances at the time of conclusion of the contract. Finally, As a result of the efforts of doctrine and the judicial precedent in France, the French Civil Code has been amended in 2016; so that the imprévision theory has been explicitly recognized as a rule of general rules of contracts in private contracts. This research will provide a comprehensive picture of how French legal system reacts toward the fundamental change of circumstances by means of analyzing these reactions and law amendments.

Moral right is one of granted rights to author in literary and artistic property law. Unlike economic right which considers protection of financial and economic aspects of author's rights, the function of moral right is to protect author's Character creativity, immaterial aspects and social interests. Despite the attention of countries following copyright system to economic right and having utilitarian approach, necessities such as internal and international (like the results of accession to Berne Convention) requirements, compelled these countries including UK and US to accept moral right. However, this right in these countries has less important situation, more limited instances and time protection rather than countries following author's right system: for example, waiver of moral right in UK has been accepted extensively and the rights such as right of attribution and right of integrity are not applied about some works. Moral rights in Canada are limited into two rights of attribution and integrity and waiver of this right is allowed generally or partially. Australia has the most comprehensive statute on moral right, infringement and remedies about that. This research examines the causes of accepting moral right in copyright system through comparative study on some of countries following this system.