Roya Ghafari; Mohammad Abedi; Abdollah Khodabakhshi Shalamzari; Sayyed mohammad mahdi Ghabooli dorafshan
Abstract
In compensating for damages, paying attention to the guaranteed rights victim and in examining the pillars of civil responsibility analysis of the harmful act of the cause of the damage is the focal point. The economic analysis of law, with social engineering, to achieve social goals takes into account ...
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In compensating for damages, paying attention to the guaranteed rights victim and in examining the pillars of civil responsibility analysis of the harmful act of the cause of the damage is the focal point. The economic analysis of law, with social engineering, to achieve social goals takes into account all actors and activists. This instrumental approach promotes the triple goals of prevention, distribution of damage and compensation. The condition of compensable loss such as predictability and directness and certainty and non-compensation of loss in legal analysis is based on fairness, ethics and justice. Every loss cannot be considered claimable, civil liability must have a logical and fair limit and an unlimited liability cannot be tolerated. In economic analysis, the reduction of the final cost determines the characteristic of compensable loss and compensability of any loss is not reasonable and efficient. The economy is a guide in determining the fault of the harmful act by providing an objective criterion and makes the relationship of causality, contrary to the conventional concept, efficient, and. This relationship exists between the loss and the factor that avoids with less cost
hamid afkar; M abedi
Abstract
Objective: The bodily damages supply Fund has been established to protect the victims of vehicle accidents in order to be responsible for compensating the bodily injuries of the victims together with the insurance institution. Although several legal and jurisprudential principles justify the need to ...
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Objective: The bodily damages supply Fund has been established to protect the victims of vehicle accidents in order to be responsible for compensating the bodily injuries of the victims together with the insurance institution. Although several legal and jurisprudential principles justify the need to establish this fund, but maintaining the fund's position in society based on jurisprudential and legal criteria is not enough and examining the economic efficiency and desirability of the establishment strengthens its social foundation; Therefore, in this study, an attempt is made to assess the efficiency of the bodily damages supply Fund from the perspective of economic analysis of law and its economic justification.Research Method: The present research method is analytical and descriptive.Findings: Adopting new financing methods of compensation requires the establishment of legal institutions based on economic analysis studies. The economic analysis of a legal entity means the use of economic tools and ideas in the process of legal analysis to inject economic data into the body of the legal system to maintain the dynamism and desirability of the institution. Planning the operation of the bodily damages supply Fund in the form of the cost-benefit principle and various efficiency criteria justifies the need for the survival of the institution and increase social welfare and the evaluation of the function of the bodily damages supply Fund in the light of economic theories leads to the strengthening of the foundation of the fund based on the economic analysis of rights.Conclusion: The benefit of having social security and removing the feeling of dissatisfaction resulting from the violation of the security duty of the government covers the cost of establishing the fund based on the cost-benefit principle. Although it is difficult to match the efficiency of the fund with the Pareto efficiency criterion, the difficulty of justifying most of the social and legal institutions with the said criterion makes the lack of economic efficiency of the fund negligible, based on the said criterion. Identifying the economic optimality of a legal entity based on the Caldor-Hicks criterion requires a comparison of efficiency in the assumption of the existence or absence of that entity and the superiority of its benefits. Placing the bodily damages supply Fund in the format of utilitarianism theory instills a feeling of pleasure more than pain and suffering to the society, and despite the apparent conflict of the efficiency of this institution with the Posner criterion, the possibility of quick recovery of economic power and achieving a sense of social security is a great help to maximize social wealth. Doing public duty arising from the thinking of distributive justice in compensating damages and providing the basis for social growth and excellence resulting from the good governance of the welfare state also justifies not only the role and position of the bodily injury fund in compensating for traffic accidents, but also strengthens the idea of expanding compensation funds in non-traffic accidents.
mohamad abedi; abdollah khodabakhshi
Abstract
From the view point of jurisprudence and civil code, and according to what has already been inferred, we have seen in the judicial procedure in the event of the deception, the deceived person (usually the plaintiff) is limited to one of two options: "termination" or "maintaining the contract". Thus, ...
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From the view point of jurisprudence and civil code, and according to what has already been inferred, we have seen in the judicial procedure in the event of the deception, the deceived person (usually the plaintiff) is limited to one of two options: "termination" or "maintaining the contract". Thus, a difference in the value of the subject of transaction cannot be demanded if termination of the contract is not plausible for the deceived person. The deceiver, could not, however, prevent the termination of the contract by paying the difference in value of the disputed subject.
Economic analysis while preserving justice demands a strategy that must be adopted and to be presented a new plan; formulating a rule that can impede the termination of the transaction by asking for or paying the price difference and to move on in accordance with the principles of Pact Sent Servando and retention of contract, which is rooted in economic custom and the community's desire for stability and security of contracts. This line of argument has been initiated in the judgment of the Court of Appeal of Markazi Province, where the court heard the claims of the price difference from deceived person (judgment number 9609978617000383, 22 November 2016). This is a wise view that seems to be against the established principles of Iranian law, but the economic and fair analysis of the basis of the judgment and some jurisprudence and legal trends confirms that.
The innovative effort of the Court of Appeal of Markazi Province has not yet been reported in judicial procedure. Judicial procedure is even more important in the law-based legal systems, because in the face of economic developments and customary precedence, new ways are found that lead to better and more meaningful compensations, namely the maintenance of contract and the economic equilibrium of both parties.
The question arises as to why the deceived person should control the termination of the contract and acquire the economic value of the subject of the date of the contract at deceiver expense? We know that the value of property in the majority of cases increases over time. In this case, if the deceived person is not able to compensate the difference between the actual price and the contract price, he will actually be losing and the Pacta Sunt Servando is also distorted. From a legal point of view and with respect to proper economic considerations, the contract should remain and prevent the revocation of documents, because compensation of the deceived person is a solution that results in more efficiency. The result that the deceiver must adhere to that.
It is noted that lawyers are used to traditional systems and principles, especially procedural laws in the current century with more than a thousand years history (in jurisprudence) regarding deception and so, change is not always welcomed. In particular, the fundamentals of the right to terminate are not so much strictly linked with economic developments, whilst the courts have a little information about these developments. In this case, it is difficult to change and re-design the basic principles. The analysis of some academic lawyers is that the right to revocation of the contract is based on the implicit condition and some based on the rule of Prohibition from harm. It seems that the preference should be given to the recent rule and the provisions of civil code should be justified on this basis, because this is based on economic analysis and, for example, if the base of the deception is for the compensation of the damages, why paying the difference between the price cannot be prevented from dissolving the contract? Some jurists and legal professors answer this question positively but this time, a judicial procedure has also come into force which recognizes the right to receive money in return for payment.
In economics, there is a theory of "exchange cost", which includes those unforeseen costs which are imposed on the other party due to the non-compliance of one of its obligations. In other words, the costs of the exchange are those that parties incur in the process of economic exchange to define and guarantee their property rights. It will include the cost of obtaining information about the seller and the buyer and the quality of the goods or the service that is exchanged, the costs of contract and oversight of the opposing party and, most importantly, the costs of defining property rights and ensuring the enforcement of these rights. Such analysis also affects the foundation of deception.
In economic developments, instead of insisting on the technical rules of the contract and its dissolution instruments, solutions move toward balance and efficiency. However, when efficiency gains are prioritized over the rule of abuse of the right, one hopes that contracts change the way to balance and better compensate for the weaker (deceived) party and flexible and efficient rules replace those which are technical and non-flexible.
