نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 19 (تابستان 1402)

Tortious Liability has consequences that due to various reasons cannot be fully compensated in certain cases. Therefore, preventing this type of responsibility is the best way to deal with the damages caused by it. Although based on Iranian legal sources, it can be concluded that the prevention of non-contractual liability is a general duty, this has not been formulated as an independent theory so far, and this gap may have inappropriate effects. The purpose of this research is to study the possibility of providing "the theory of prevention of non-contractual liability based on jurisprudential and legal sources" as an independent theory in Iranian law. According to the results obtained, it is possible to identify this rule in Iranian law, and based on the available sources, by providing the theory of prevention of non-contractual liability, individuals can be required to take measures to prevent such liability. This prevention can be presented in two ways: that which concerns prevention of damage by the person who is doing the preventing and that which is related to compliance with regulations to prevent damage by others.Overall, it can be stated that Despite the fact that the prevention of civil liability has not been identified in Iranian law, this rule can be deduced from some jurisprudential provisions and sources, and there are useful bases and sources that can be relied on to identify this rule and appropriate regulations in the field of prevention. Imposed civil liability. The existing codified laws have distanced themselves from the institution of prevention by limiting themselves to the existing regulations and relying on traditional and unhelpful intimidation in the necessity of compensation. Although this issue is useful in compensating for past losses, it does not explain the main function of the government and individuals, which is to prevent losses and damages. The legal vacuum in the issue of prevention and the possibility of evading responsibility in the assumption of creation with new tools (insurance), liens and other cases that lead to non-compensation of damages (lack of proper judicial system, delay of proceedings, etc.) reduces the intimidation effect of compensation. Has been in some cases, losses occur and insurance companies pay, and as a result, even though the cause of loss, who must compensate for the loss, does not incur losses, the intimidation intended by the legislator is not created. In some cases, damages may remain uncompensated. Based on the results of this research, prevention is the best tool to support people in non-contractual liability. If this goal is achieved, the society will be healthier and people will be safer in their activities. Life is more secure and social rights are supported. As a result, legal problems will be reduced and referrals to courts will be reduced.

One of today's important needs that jurisprudence and legal rules must respond to is the demand for damages that, due to the delay or non-fulfillment of the obligation by the oblige, lead to the loss of the opportunity to gain benefits or the occurrence of possible future losses for the obligee. Undertakes In the past, many jurists were of the opinion that only certain losses can be claimed, and because the opportunity to gain benefits or avoid future losses has not reached the certainty stage, the losses resulting from such cases cannot be claimed. does not have However, the investigations carried out in the works of jurists show that nowadays there is a consensus on the ability to claim and compensate for the loss of opportunity. Based on this, this article has tried to prove with a descriptive and analytical method that not only due to several jurisprudential rules such as "harmless" and "waste", the loss caused by the loss of the opportunity to delay the payment of monetary obligations can be claimed, but the approach of the year The recent decisions of the Supreme Court of the country and the generality and legal principles governing civil liability, including the principle of full compensation for damages, also indicate this.t can also be concluded from the legal principles and provisions of the mentioned unanimity votes that, contrary to the current opinion, the damages for the delay in payment of cash are allocated to the same item specified in Article 522 of the Civil Procedure Law and it does not have a determining index and it seems that the legislator in the said article merely The minimum damages are predicted and the oblige has the possibility to demand all customary damages. The doubt that may be raised regarding the possibility of claiming damages for the delay in payment due to the loss of opportunity and the ability to collect it with the damage caused by inflation is that by accepting this point of view, the situation of the injured party will be better than before the loss, which should be said to dispel this doubt. According to the accepted way of compensation, usually the amount of compensation is not equivalent to the amount of actual damages caused to the victim and depends on the amount of lost luck and opportunity, although in the evaluation of the amount of damage, the future benefit and the degree of its probability are taken into consideration.

The Universal Declaration of Human Rights is one of the most important texts of international law. Its effect shows that it is not unfounded. Now the question is, what are the basics of the declaration, especially its basics about justice and freedom? Because the introduction and the text of the declaration consider freedom and justice as the most basic human rights. To understand these basics, it is necessary to have a brief look at the ideas raised in the philosophy of law in order to understand the place of freedom and justice in the Universal Declaration. This article analyzes the principles of the Declaration by focusing on the ideas of Kant and Hume about justice and freedom. This analysis is based on a case study of several evidences from the preamble and materials of the Universal Declaration. The Universal Declaration of Human Rights is the result of epistemological and philosophical thoughts in modernity; therefore, the foundations of this declaration should be sought in the thoughts of the great philosophers of this era. Although the modern era has seen great thinkers, the ideas of Kant and Hume have been turning points in the history of the philosophy of law and politics in this era. The findings of this research show the alignment of the declaration with Kant's thoughts in the field of justice and freedom. Although Hume had a significant influence on modernity, the theme of justice and freedom in the Universal Declaration was more influenced by Kant than by Hume. In Kant's view, freedom is an important feature in human life. It can almost be said that Kant's intellectual foundation in the field of practical reason is based on freedom. This shows that Kant considers justice and freedom as an eternal and inalienable right and value. In fact, Kant considered freedom as a comprehensive and absolute principle that does not depend on the will of the legislator; like other liberals who considered freedom as the highest value and justice as subordinate to it. The writings of these two thinkers in the field of justice and freedom show the ups and downs of justice in modernity, as a result of which Hume's ideas lost their effectiveness due to numerous problems, and after that, Kant's beliefs were able to give new life to legal and political liberalism, which is the product of It is the Universal Declaration of Humanity as a comprehensive prescription for the development of liberalism. Despite the abundance of writings about the Universal Declaration, the difference of this article is in determining the relationship of this declaration with justice and freedom based on the reading of these two thinkers. Not to examine the general concepts of justice and freedom or their relationship with the general concept of human rights.

One of the inalienable principles of civil procedure is the principle of two-stage proceedings when dealing with merits of claims. Based on this principle claims are handled in a two-level manner. Acceptance of the new claim in the appeal stage will lead to a one-stage process. Accepting a new claim at the appellate stage violates the above principle and is therefore prohibited. In French law, a change in the grounds of action at the appellate stage is not considered a new claim and is admissible if it does not alter the purpose of the first claim. In this article, considering the impact of French law on Iran's civil procedure law, first the rule of prohibition of new claims and its exceptions in French law will be examined, and then the aforementioned rule will be discussed in the light of Article 362 of the Civil Procedure Law. Article 362 of the Civil Procedure Act, contains the rule of prohibition of filing new claims and its exceptions. This article has been examined by utilizing a descriptive-analytical method based on library studies. Article 362 of the Civil Procedure Law specifies the rule of prohibiting new claims in the appeal stage and has raised exceptions to it.

To meet their needs, people form communities and establish different relationships, including legal relationships. In legal relations, the discussion arises from the creation and collapse of obligations. Different legal systems have provided different methods for the collapse of obligations, the most important of which is the fulfillment of the obligation. The problem statement of this paper is that, although the most natural mode of payment is payment by a committed person, sometimes the discussion of payment by a third party or a non-debtor person is also raised. The Civil Code of Afghanistan in its articles 806, 898, and its subsequent articles, and the Civil Code of Iran in its Article 267 have accepted the third payment institution with the effect of the fall of obligation and recourse. Although the appearance of Article 267 of the Civil Code of Iran considers the third-party payment conditions to be permission, according to some Iranian jurists, the permission of the mentioned article is a presumption of not intending to donate.Therefore, the condition of the third reference is the lack of intention to donate, not permission. Accepting this theory, the basis of reference in both legal systems will also be the third payment institution itself, so there is no need to look for other legal formats for third-party reference. In this research by using the descriptive-analytical type of qualitative research method we come to the conclusions of this paper. The results of this paper showed that, in both legal systems, the reference condition is the intention not to donate, not permission. The third party can appeal to the debtor by proving that he did not intend to spend at the time of payment, even in cases where the payment was made without the debtor's permission. To prove this condition, can use evidence such as the debtor's permission to pay, to have an interest in payment, to be used as a proxy, etc. The third appeal is possible in the cases where the condition of the intention of non-eligibility is proven. As a result, when a third party has made a payment in a situation where there is neither the debtor's permission to make the payment nor the official guardian, if the third party can prove his intention of not donating with various proofs, he can go to the debtor to receive what he has paid. At the end, in this research, practical suggestions have been presented to solve the problems of third-party recourse to the debtor and to resolve the contradictory perceptions that have arisen about the condition and basis of recourse from the articles of the civil law of Afghanistan and Iran.

According to the principle of relativity of contractsو the rights and obligations arising from the contract only affect the parties concerned and have no effect on third parties. However, this principle has faced many exceptions, including obligation towards the subsequent parties to the contract. One of the most important issues in this regard is the possibility of filing a direct claim against the primary obligor. The purpose of establishing this right is to perform the obligation or compensate a third party in a faster and easier way. In the new trot law, interested third parties have the right to file a claim directly against the primary obligor for compensation for damages caused by breach of contract. Direct claim (Action Directe) is a privilege that in some cases (and exceptionally) is granted to a third party to directly sue the primary obligor. In French law, initiation of a direct claim against the primary obligor started in cases dealing with insurance in traffic accidents. However, such claims did not remain limited to traffic accidents and were extended to other areas of tort law as well. In Iranian law, this question has not yet been answered absolutely, and has only been raised in some areas for compensation of damages, such as traffic accidents, and the judicial precedent has not yet issued clear rulings in this regard. Now, this research seeks to answer the question as to whether it is absolutely possible to use the possibility of filing a direct claim in various areas of tort law in order to speed up and facilitate compensation for damages, despite the principle of principle of relativity of contracts. To answer this question, we must see how this method of compensation for damages entered French law and examine the possibility of its compliance with Iranian law. It can be stated that the direct claim against the insurer is one of the most important examples of direct claim. In this lawsuit, the injured party has the right to demand compensation for the damage caused to him from his liability insurer before going to the cause of the loss, and the insurer is required to compensate all losses. Despite the belief of many lawyers, this lawsuit is not foreign in the country's legal system, but the history of its acceptance goes back to the social security law. This lawsuit does not conflict with the principle of relativity of contracts and does not ignore the principle of equality of creditors. Because it prevents the principle of relativeness from being used against principles such as the principle of full compensation.