The Extent of Intuition and Reasoning in Process of Judgment
Mohammad mehdi
Alsharif
Associate professor, Faculty of Administrative Sciences and Economics, Department of Law, University of Isfahan, Isfahan, Iran
author
text
article
2017
per
The intuitionalists contrary to formalists have considered judge’s formal reasoning as being in contrast with the substantive reality of judgment itself in process of Judgment and argue that the essence of reasoning is much more reflective of mysticism and legal intuition rather than logics and formal rationale. The notion of intuition is a conflict resolution immediately and unconsciously pictured in judge’s intellect when he, for the first time, happens to cope with the detailed realities of a case brought before him and automatically attract him. It seems that according to different scopes of Intuition and reasoning whatever we emphasize in their mutuality, judicial reasoning continues to be conducted under the dominance of the rules governing the reasoning. For what comes out of intuition is a picture of what could have been a just result for the judge deciding on a case, however, under obligation of judge he is supposed to justify its judicial decision under reasonable legal reasoning dealing with logical and rational standards. Under this process, the result coming out of intuition should be the logical result of the rudiments mentioned for its justification.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
1
30
https://jls.shirazu.ac.ir/article_4090_1e0cf80e8b852144759e7772ed01bd22.pdf
dx.doi.org/10.22099/jls.2017.4090
Anti-mergers and Their Remedies in Iranian Law
Mohammad Reza
Pasban
Associate Professor at the Allameh Tabataba’i University, Tehran, Iran
author
Abolfaz
Gholami
LLM in Private Law, Islamic Azad University of Tehran, Tehran, Iran
author
text
article
2017
per
Although companies’ merger help out the enterprise from financial trouble improving their competitive strength, leave undesirable effects on the competition, from economic view incur some negative consequences on the market. In order to prevent anti-competitive mergers, the Iranian legislature in chapter 9 of the Implementation of the General Policies of Article 44 of the Constitution Act 1386, has provided some criteria such as concentration. As the Iranian Law on this crucial topic is at its early stage of development, from the competitive rules point of view suffers gaps and ambiguities both for offering criteria to recognize anti-competitive mergers and setting up a mechanism as well as appropriate and deterrent remedies. There are remedies such as annulment, recession division and suspension whose practice is faced with some difficulties as well as ambiguities.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
31
55
https://jls.shirazu.ac.ir/article_4091_78f3b9176bc27680f5a7986e3f06c263.pdf
dx.doi.org/10.22099/jls.2017.4091
Criminological analysis of pyramid companies phenomenon
Mohammad Ali
Haji Dehabadi
Associate Professor of Criminal Law and criminology, Facilty of Law, University of Qom, Qom, Iran
author
samira
khadem
Master of science in Criminal Law and criminology, Faculty of Law, University of Qom, Qom, Iran
author
text
article
2017
per
The Pyramid Companies phenomenon with its very own destructive effect has emerged in Iran under the pretense of network marketing and electronic trading development. In 2005, during the process of criminalisation of these businesses, a single article was added to the Penal Code for those who Disrupt The Economic System. However, the increase in the number of cases, revealed that this article did not work effectively. Therefore, paying attention to the understanding of the reasons and applying non-criminal reactions seem necessary. Individual factors such as greed, the lack of knowledge, the desire of becoming independent and earning more money together with problems arising out of a business environment with no sense of economical security will cause such crimes. Economical and social system factors such as unemployment, the lack of meritocracy will also eventually lead to such criminal offense. Respecting the economical and social rights of people in the society, training them and developing the culture for improving the individual personality in the form of Social Prevention, supporting the network marketing and consumers rights in the form of Situational Prevention are those non-criminal approaches that can be useful.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
57
87
https://jls.shirazu.ac.ir/article_4092_87554764e72c70ad47057740c6f98f25.pdf
dx.doi.org/10.22099/jls.2017.4092
Ambiguity of the Civil Code in the Case of Unpunctuated Woman in Pureness State and its Relationship with Accuracy of the Divorce
Seyyid Mahdi
Dadmarzi
Assistant Professor at Private law,
Faculty of Law, University of Qom, Qom, Iran
author
text
article
2017
per
This article discuss about this question according to 1140 and 1141 Article in the Civil Code: Does the sexual intercourse disturbs the divorce while the pureness is posterior? If the divorce is void and one woman getting marry after that divorce, and the intercourse is occurred the marriage is void and they are eternally forbidden to each other even in the case of ignorance. Regarding the appreciations and the reasons of the supporters of these two standpoints among the jurists and the lawyers and their focus which is on the related codes in the Civil Code and regarding the inattention to this issue, it has been proved that the intercourse is disruptive and this view has many supporters especially among the jurists and contemporary Marja and the Istibra of the menstruation can supply our purpose.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
89
107
https://jls.shirazu.ac.ir/article_4093_511c0fa042cae6eadc3c7604c5353360.pdf
dx.doi.org/10.22099/jls.2017.4093
An Analysis on Different Internet Links from the Perspective of Copyright System
Ebrahim
Rahbari
Assistant Professor of IP Law & Cyber at Shahid Beheshti University, Tehran, Iran
author
Saied
Nejatzadegan
PhD Student in Private Law at Shahid Beheshti University, Tehran, Iran
author
Hamid
Nejatzadegan
PhD Student in Private Law at Azad University, Science & Research Branch, Tehran, Iran
author
text
article
2017
per
Nowadays, it is almost impossible to design a website without utilizing of links. Different types of Web links (Hyperlinks, IMG links and Frame links) circulate users on the web and refer them into places which linker had determined previously. This issue may endanger exclusive rights of intellectual property holders. Although sometimes Links had infringed trademarks and somewhere are recognized as unfair trade practice, the most important talented point of their controversies in the intellectual property system is located under the copyright and possible infringement of its exclusive rights. This article tries to describe technical and legal issues of various types of links and their functions and determine the rights of web page owners in this regard. In addition, this research endeavors to differentiate cases which can be considered as unconventional linking in contrast to legal linking in the light of judicial precedent and related established copy rights in the leading countries and Iranian rules specially Electronic commerce Code.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
109
139
https://jls.shirazu.ac.ir/article_4101_25b2500acf72e3b88dcece50d8e0346b.pdf
dx.doi.org/10.22099/jls.2017.4101
Customary International Law Solutions to Protection of Cultural Property in the Event of Armed Conflicts
majid
zahmatkesh
Ph.D. Student in international Law, Department of Law, Islamic Azad University of Najafabad, Najafabad, Iran
author
Alireza
Arashpour
Assistant professor, Faculty of Administrative Sciences and Economics, Department of Law, University of Isfahan, Isfahan, Iran
author
text
article
2017
per
Since the status of the property indanger during armed conflict and armed conflict can bring irreparable damage to their body, international law has began codification and adoption of rules and regulations on the protection of cultural property in armed conflicts. But the question is that because of the failure of treaties, whether international law has enough customary rules of international law on the issue?
With surveys had done in respect of international case law, states practice, and own treaties regulation – can recognize as a instance for international custom – we reach the result of the income of customary international law regarding the protection of cultural property the armed conflict has sufficient power And moreover despite recognition of acts against cultural property as a crime under different pretexts, it has also ability to impose punishment and punish the perpetrators of those crimes.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
141
174
https://jls.shirazu.ac.ir/article_4102_608b28ce2f3b7d752fa999414a6eb6a2.pdf
dx.doi.org/10.22099/jls.2017.4102
Criterion for alimony in jurisprudence of Shiite and civil code of Iran
Majid
Sarbazian
Assistance Professor at Private Law, Faculty of Law and Political Sciences, Shiraz University, Shiraz, Iran
author
Golam Reza
Barzegar
M.A in private law
author
text
article
2017
per
One of the important matters in family law is standard of determining the amount of alimony. There is no Consensus on this issue among the Shia scholars. For example, while some have considered canonical status of husband, the majority of Shiite jurists believed to personal status of wife in relation to amount of food and to social status of wife about other needs and quality of it. In this paper, It was concluded that legislator in article 1107 of civil code amended in 2002/11/10 has shown willingness to the majority opinion of last social status wife and father in law’s family in the before of marriage. Hereof, both subjective and objective standard has been used to identify and distinguish the territory and application of alimony.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
175
204
https://jls.shirazu.ac.ir/article_4103_6fb0bf48a65f0ee204e6945c3532c169.pdf
dx.doi.org/10.22099/jls.2017.23676.2221
freedom of contract versus protection of consumers: examining exclusion clauses in product liability Law
Hosein
Simaei sarraf
Associate professor of Islamic and private law. faculty of law, Shahid Beheshti university,Tehran, Iran
author
Jaber
Esfandi Sarafraz
LLM (the University of Geneva and the Graduate Institute for International Studies and Development), Master in International trade law, Shahid Beheshti University
author
text
article
2017
per
There is a big controversy among the lawyers about the acceptance of exclusion or limitation clauses as a general principle in tort law. Some of them have rejected the acceptance of this principle with some reasons like the high risk of the clause for the victim and its conflict with the general rules of the contract law and being contrary to public policy and safety and health of the community. Some others believe that these types of clauses are not always contrary to public policy and the safety and health of the citizens and moreover, such clauses can be useful specially because of their role in creation of diversity of transactions and the decrease of production cost like insurance fee and its effect on allocation of risks among the businesses. In the product liability law, for the existence of economic inequality among manufacturers and other businesses on one hand and the consumers who don’t have enough skill, experience and facilities to consider the products and determine their real interests on the other hand, putting more restrictions on the insertion and reliance upon such types of clauses is much necessary. Since, the special protective rules like strict liability have been enacted with the presumption that there is an inequality of bargaining power between interprises and manufacturers in one side and the consumers of the products in the other side, it must be held that the exclusion or limitation clauses cannot deprive rights of the beneficiaries of these rules to benefit from them. also, when the general theories like negligence and breach of warranty are the basis of the action, legislators and courts are reluctant to let the injurer rely on exclusion clauses specially, in the case of consumer products and when the person in case has gotten personal damages, however there is no general rules of restriction there. Also, when there is no restriction on insertion and reliance on such a clauses, they try not to let the injurer benefit from them in practice, with the use of some special rules and regulations in construction and insertion of them.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
205
226
https://jls.shirazu.ac.ir/article_4104_86719a053ba76f6a3a560b2ff238c6e8.pdf
dx.doi.org/10.22099/jls.2017.4104
Citation to the Spirit of the Law in the Trial
Mohammad Bagher
Ameriniya
Assistant Professor, Department of Law, Islamic Azad University of Yasooj, Yasooj, Iran
author
Ali
Jamadi
Assistant Professor, Department of Law, Islamic Azad University of Yasooj,Yasooj , Iran
author
text
article
2017
per
Citation to the spirit of the law has considerable importance whether in evaluation of the private contracts and recognition of their integrity, or alignment and inconsistency of the acts, the instructions ,and the circulars which are published from the institutions of power in a society, or in ambiguity or vacuity of law, so that it can be considered as foundation of a fair trial . Inclusion of the Spirit of the Law in some legal regulations and necessity of the judges to pay attention in their judgeship demonstrates its admission as a firm documentary in the justice system. However legislators do not give one clear definition and assign its implication and applicability to the assessment of the judge.
Recognition of the Spirit of the Law, the legal base, and the juridical solution, the law for its recognition and also pathology of this process are among subjects which have scrutinized in this paper.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
227
241
https://jls.shirazu.ac.ir/article_4105_6074e094669d928f14fac8627108d30d.pdf
dx.doi.org/10.22099/jls.2017.7467.1373
Recursion of a Witness from his Testimony and its Effect from the Perspective of the Procedural Law
Hassan
Mohseni
Associate Professor of Private Law, Faculty of Law & Political Sciences
University of Tehran
author
text
article
2017
per
Recursion of a witness from his testimony is an article in both Civil and Islamic Criminal Code. The relationship between the recursion and the perjury is obscure. The recursion is dissuasion of witness from his testimony in the court before an official authority who listens to the testimony. In the perjury, a witness does not relinquish from his testimony and stay on it but its falsehood is proved by its defiance to the fact. If the recursion is made before the definitive verdict, it is resulted in its unreliability or ignorance but after the definitive verdict, it do not cause the annulment of the verdict which is based on recursion except before the performance of Hudud . The recursion may annul a verdict in normal cases, however in unusual cases; the recursion is not a reason for annulment. The refusal of the recursion do not causes in opposition of the definitive verdict with Sharia.
Journal of Legal Studies
Shiraz University
2008-7926
9
v.
1
no.
2017
243
275
https://jls.shirazu.ac.ir/article_4106_0ed47d1468412d9bc3404e6e45b649ed.pdf
dx.doi.org/10.22099/jls.2017.4106