Scientific research
sayyed mahdi moalemi
Abstract
Introduction
Economic justice has a special place in the field of justice, attracting the attention of many scholars. The main issues in economic justice are the quality of distribution of income, occupation, opportunities, economic freedom, leisure, rights, and privileges and in general the distribution ...
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Introduction
Economic justice has a special place in the field of justice, attracting the attention of many scholars. The main issues in economic justice are the quality of distribution of income, occupation, opportunities, economic freedom, leisure, rights, and privileges and in general the distribution of economic benefits among individuals and groups (Tavassoly, 1997).
So far, very diverse views have responded to economic justice issues. Scientific activities in the field of justice can be Simulate the building that realization of each stage is an introduction and an opportunity to enter the next steps. Hence, various views on justice-related issues are due to the differences in the viewpoints of previous stages. Meanwhile, the application of appropriate method is the key to achieving the principles of economic justice. Each justice theorist has to be able to prove the legitimacy and rationality of his proposed method for achieving the principles and standards of justice. Positivism, Deontology, Pragmatism, and Socialism have been the most important methods of human schools based on self-centered rationality to answer the main questions of economic justice.
Muslim scholars, with different interpretations of Islamic teachings, have presented various views on economic justice. It should be noted, however economic justice in human schools has evolved out of the ideas of the scholars and identified principles. Yet, in the Islamic economy, we are faced with the theoretical structure of the existing structures (Sadr, 2003). Therefore, the methodological explanation of the principles of economic justice in Islamic teachings is necessary.
Theoretical Framework
So far, foundationalism has dominated Islamic methods of justice in general, and economic justice in particular. However, some perspectives on the signing of the lawful orders in the economy, the position of rational and customary foundations in the determination of economic law, and the principle of the guidance of religious orders in contracts, have caused differences in the way Muslim scholars confront the issues of justice in the economy. These methods are: “Text Foundationalism ”, “Rational Foundationalism” , “Vilaiee and Natural Foundationalism “Functionalism coherentism of Foundationalism”. In this study, each of these methods has been investigated.
Methodology
The broad spectrum of Muslim thinkers' views on economic justice has caused the difficulty of analyzing their main elements. By classifying, simplifying, and knocking out the effective components in these theories, it is also possible to increase the speed of its recognition and analysis. Typology is one of the classification methods that is often multidimensional and conceptual, and is explained by the names of each species (Bailey, 1994).
This article, by means of a philosophical analysis, verifies the methods of Islamic scholars in order to answer the main questions of economic justice and evaluate each one.
Results & Discussion
We should khnow the base of the belief in “Text Foundationalism ” is only religious texts and not else. One observes a spectrum of narratives in the justice of religious research whose common aspect is the inadequate attention to intellectual teachings in a research process. The Ahle Hadith, the Ash'arites, and the Prophetical School are various groups of constituencies.
Aside from the epistemological faults of this method, the cruelty and dogma in this theory leads to its ineffectiveness in economic policy.
In “Rational Foundationalism” by discovering the cause of deserving, financial rights, which are fundamental pivots in determining the principles of economic justice, are discovered. There are two trends in this way: The first trend determines desirability based on the cause of the subject and the second tendency based on the ultimate cause. In the first tendency, the cause of existence is the origin of the creation of the right and the cause of entitlement. When the cause creates the disability, it has the right to seize the disability and prohibit others from seizing it .For instance, a person who plant a tree and he will take of it until the fruits, this is his right that use this fruits, because that fruits was because of its taking care of. (Mesbah Yazdi, 2002). But, in the second tendency, for recognize of the rights in justice right plan, we should consider relative between capacity and the purpose of his creation. (Motahari, 1983).
However, this method is possible to discover of the causation in position of SOBOOT, bout It is impossible in position of ESBAT, to discover of the finance rights by rationality. This approach leads to a deadlock in the theory of economic justice.
The basic belief in the “foundationalism of creation” is revelation. Every epistemology of religion must have a reasonable relation with revelation (Quran and Sunnah). According to this method, justice does not mean every right is right or does not attract maximum benefits for social life. But justice is rooted in the inalienable desire for the expansion of monotheism. Justice means “the realization of the relationship of monotheism in the world, including the social life of man”.(Mirbagheri, 2013) Hence, Divine Providence should govern the process of establishing the recognition of economic justice. This method has a basis for epistemological reasons due to the negation of the truth and falsehood of scientific propositions.
"foundationalism coherent functionalist" is a combination of basic beliefs, coherence, and function which begins in the long run from the basic beliefs and leads to the coherence and ultimately the functioning of the theory. (Khosropanah, 2012)
Conclusions & Suggestions
" Functionalism coherentism of Foundationalism ” due to a comprehensive look at Islamic teachings and attention to the ends and purposes of Shari'a in deducing financial rights - which plays a significant role in economic justice- is far off the defects of previous methods, such as jumble, dogmatism, inefficiency, and impasse theorizing. On the other hand, this method is more authentic and efficient.
Scientific research
sayyedmortaza shahidi; Nasrollah jaafari khosroabadi
Abstract
The intermediary and representation in the capital markets means that the persons cannot trade directly and it is necessary to trade through brokers. At the same time, the legal nature of brokerage and consequently the rights and obligations of the interface is less clear, and lawyers have not obeyed ...
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The intermediary and representation in the capital markets means that the persons cannot trade directly and it is necessary to trade through brokers. At the same time, the legal nature of brokerage and consequently the rights and obligations of the interface is less clear, and lawyers have not obeyed vision unite. Some lawyers know the nature of this act as a "broker" and some of them analysis it based the Article 10 of the Civil Code and other groups have separated the Stock Exchange and the Commodity Exchange. In this regard, according to the officials responsible for the performance of contractual obligations by the brokers behind the third party, the agency for all transactions is more acceptable theory and in terms of legal analysis, brokerage operation under the general title "representation" is known and if the dealer does not manifest itself in transaction, to his party, he is free on referring to him.
Scientific research
mahboubeh abdolahi
Abstract
Electronic transaction means any exchange of funds where, at least, one operation is conducted using electronic means. In such transactions, operations are mainly performed by the transferring bank, which is the bank ordered by the issuer of payment order to carry out the transfer of funds. In this kind ...
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Electronic transaction means any exchange of funds where, at least, one operation is conducted using electronic means. In such transactions, operations are mainly performed by the transferring bank, which is the bank ordered by the issuer of payment order to carry out the transfer of funds. In this kind of transactions, although it is the customer that directly requests the transaction from the transferring bank, several other factors have a role in the transaction including the banking systems, mediating bank, telecommunication and internet service providers and even the customer's action, and it is not clear what obligation the transferring bank has to the customer and what it is based on when transaction is not properly performed; is this bank liable for the actions of people who collaborate with it or not? In the present article attempt is made to analyze the existing regulations including guidelines approved by the Central Bank, and conduct a comparative study of UNCITRAL Guide on the electronic transfer of funds to explain the basis and limits of the transferring bank's liability in such transactions, and suggest complementary solutions to these regulations.
In international level, UNCITRAL has created two documents in this regard. These documents are UNCITRAL Legal Guide on Electronic Funds Transfers provided in 1987 and UNCITRAL Model Law on International Credit Transfers approved in 1994. UNCITRAL’s aim is that policy makers use these documents as a model to approve and analyze the legislations related to this field, thus, eventually, all countries may have uniform laws which may prevent any probable conflict.
In Iranian law, no exhaustive legislation has been approved and the only existing provisions in this regard are certain e-commerce laws of the Central Bank’s instructions such as instructions on drawing payment and fund transfer order and regulations for payment service providers. In addition, an adjoining contract will be made between the bank and the customer on which the legal relation between the two parties is based. For instance, the legislator has not explained the kind, basics, and limits of the bank’s responsibility and the ways of disclaiming bank’s responsibility. Legal system regarding the banks’ responsibility in classic banking cannot satisfy the need for electronic transactions because their mechanism is completely different from the classic one.
It seems that bank’s liability against the customers is a professional responsibility which is a combination of conventional and civil liability called legal liability. The bank as a profession owner is liable against the customer and if it violates its conventional commitments or legal requirements, it will be liable. In addition, Bank liability is a strict liability, which means that when a transaction is not carried out correctly and the customer incurs loses, there is no need to prove fault to claim damages from the bank. Moreover, given that under the contract with the customer, the bank is required to carry out the transaction correctly, and according to the theory of professional liability, the bank is liable for the actions of collaborators and those whose services it uses to fulfill this obligation including telecommunication service provider, the mediating bank, or the mutually beneficial center, and proof of damages to the bank cannot relieve the bank from its obligations to the customer, and it is only through proof by the force major or customer's fault it can be exempted from liability.
In some transactions such as the payments by the ATM machines, it is difficult to prove that the loss had been made by the client or a third person who has had access to his or her account through criminal acts, tricks, or frauds. It is possible that the customer has given his/her card and its password to another person advertently or inadvertently or the third person has forged the card and could get access to the password through penetrating the system. In such cases, the petitioner has a major problem, and that is proving the dispute. In the American and UK law, to overcome this problem and avoid involving the courts in the complex process of proving the dispute, it has been anticipated that when a customer's card has been abused, damages should be shared by the bank and the customer without the need to prove loses due to customer action, so that a ceiling is considered for customer liability.
Given the above, to reform Iran's legal system with respect to the banks' liability in electronic transactions, it is necessary to develop a comprehensive law in this respect. It is recommended that in developing these regulations, the bank's strict liability in performing correct transactions and its liability for deficient means of banking and actions of its collaborators including telecommunication service providers should be explicitly asserted in order to avoid the need for judicial arbitration. Moreover, when there is doubt that customer is at fault, it is recommended that the American legal solution should be used to facilitate the flow of disputes, and divide the liability between the bank and the customer, by setting a ceiling for customer liability.
Scientific research
mojtaba zahedian; reza alipour; mahsa moshar movahhed
Abstract
In the present study, an attempt has been made to gain insight into the status of law in relation to agency costs using an analytical-descriptive method. The issue of agency costs and the urge to present regulations for the agents involved in the commercial ties between companies have been always of ...
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In the present study, an attempt has been made to gain insight into the status of law in relation to agency costs using an analytical-descriptive method. The issue of agency costs and the urge to present regulations for the agents involved in the commercial ties between companies have been always of research value for lawyers. Such costs, if appropriate measures not taken, can create formidable barriers to the potential interests of stakeholders which eventually puts businesses and investments at jeopardy and may lead to the loss of opportunities to attract dispersed capital of the community. Since the interests of the stakeholders are based on the actions of the agents, it is possible for them to abuse their position, which would be in conflict with the fundamental purpose of the companies. Accordingly, high agency costs can generally place undue burden on the stakeholders of companies, leading to unproductivity of their institutions.
The concept of agency costs was first introduced by economists, and for this matter, the realization of such costs in its very economic essence is beyond the scope of law. A number factors took agency costs into consideration such as asymmetric information phenomenon among corporate activists, opportunist measures, lack of competitive market, and the conflict between stakeholders and agents, to mention but a few.
In normative sense, one of the main functions of any legal system is to create efficiency, or in other words, maximizing wealth in society. Thus, the science of law, by providing various solutions, including ex-ante and ex-post approaches, has used all the capacities defined in the legal system of exploitation and legal rules in order to manage the agency costs.
Categorizing legal solutions into the dichotomy of regulatory and governance solutions is due to the differences existing between business and corporate activists. Considering the significant costs for establishing collaboration among stakeholders, implementing governance strategies by stakeholders in monitoring the agents has not been met with much success.
Therefore, the legislator attempts to lower the agency costs by prescribing regulatory strategies. Because in such situations, regulatory strategies, which have mandatory character, have proven to work more efficiently thanks to their restricting role, and by doing so, the interests of the stakeholders will be respected.
By assigning stakeholders in charge of electing and dismissing the managers as a regulatory tool, in the one hand, it is possible to avoid such costs by choosing the competent agents; and in the other hand, when the agency cost is imposed on the stakeholders due to the measures taken by agents, they can prevent the costs by resorting to the right to dismiss them.
Finally, by acknowledging the right to approve the decisions of the company by the shareholders, another regulatory card will be given to the stakeholders, based upon which a revision of the company constitution will be solely possible on the condition of reaching a consensus by the majority of the stakeholders.
Moreover, setting a minimum legal capital or a prohibition on the distribution of profits among shareholders is because of the fact that the legislator prioritizes the rights of creditors to reduce the agency. In fact, the goal of enforcing warranties against self-dealing transactions and limiting the granting of loans and credits to the agents of the company, is to support shareholders against agents.
Also by defining the requirements regarding the disclosure of information by businesses, the legislator's goal is to prevent the costs. Subsequently, shareholders, even minor shareholders, can be exempted from these costs by using the right to transfer shares or the right to evaluate and resell their shares and leave the company. On the other hand, the rights of the creditors and the parties transacting with the company will be protected with any assumptive change in any case. So if these changes are risky for the creditors of the company, the right to demand their claims before the due time is recognized. Also, in case of merging companies, all the commitments and contracts will be transferred to the newly-merged company, and these companies will be required to fulfill their contractual obligations.
Scientific research
hasan mokarami; ebrahim taghizaadeh
Abstract
Introduction
In our era, motor vehicles, especially land vehicles such as cars are among agents with greatest possibility of harm and danger. Accidents caused by land vehicles have become one of the top problems of the present era. In the complicated market of production and supply, on many occasions, ...
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Introduction
In our era, motor vehicles, especially land vehicles such as cars are among agents with greatest possibility of harm and danger. Accidents caused by land vehicles have become one of the top problems of the present era. In the complicated market of production and supply, on many occasions, costumers are not aware of the materials of the goods, the quality of production and the manner in which they are used. On the other hand, the vehicle may be defective, and the consumer may be harmed by using this product. Lack of consumer awareness and their trust in the supplied products lay the grounds for the misuse of some manufacturers. Enjoying appropriate and safe goods and services with good quality and free from defects is a basic right of consumers. One of the best tools that may fulfill this goal is guarantee. Product guarantee is one of the most important methods of consumer right protection because despite all the efforts made by the manufacturers in producing healthy and high-quality products, it is possible that some gaps are neglected by the manufacturer in the course of manufacture and production process, or as a result of inaccuracy or defect, and thus the product may not have the required quality. To prove their good faith, manufacturers guarantee their products within reasonable timeframe, thus assuring the consumer that the products they buy have good quality and are safe, and in case of any problem, they can be fixed for free. The scope and extent of this guarantee will also cover third party damages caused by defective manufacturing. The nature of the guarantee is initially entirely contractual and based on the manufacturer's commitment to the buyers. The importance of guarantee in the relationship between producer and consumer has led governments to meddle in these relationships in recent years and to turn a completely personal and contractual binding into a legal obligation. For this reason, in order to protect consumers who are in a weaker position than the manufacturer, the legislator established certain consumer protection laws in 2007, most of which are concerned with guarantee period. The guarantee period, its effects and the necessity of providing it by car makers are roughly organized in the Automobile Consumer Protection Act. The mentioned law, while determining the minimum time and function for guarantee, obliges car makers to ensure the health and safety of their manufactured goods. Under this law, the supplier is obliged to eliminate any defect (caused by the design, assembly, manufacture or carriage) of the car within the duration of the guarantee period for free, since justice is required to support consumers against large industrial and manufacturing giants and to ensure the health of the society in advance.
Theoretical Framework
As far as the author of the article is concerned, no independent and direct research has yet addressed the issue of guarantee in car production, yet previous works have touched upon it briefly specially in books such as “production defects” written by Dr. Katouzian and “civil liability of products: written by Dr. Jafari Tabar and an article written by Dr. Badini known as “a critique of law on sponsoring car consumers’ rights passed in 2007”. On the other hand, the judicial procedure available to the public in this area is also very limited. In the laws of the western countries, there is a general rule of liability for producers of goods against consumers. Among the EU-member countries, the European Union has laid down criteria for protecting consumers rights, one of which is the protection of consumers' rights in the form of guarantees or product conformity warranty. EU member states have amended their rules and added clauses to their civil law to comply with the mentioned laws.
Research method
This was a descriptive and analytical comparative study using library resource. It also used case-by-case judgments from the primary courts, the Supreme Court of the Islamic Republic of Iran.
Findings and Discussion
The goal of laws is to bring balance and equality to the relationship between individuals, thus laws tend to protect the rights of car users. Lawmakers have passed a consumer protection law because of the importance cars. In this law, due attention is paid to the right of enjoying healthy products without defects and dangers, and in order to achieve this goal, the legislators have provided safeguards such as the guarantee period under certain conditions. Specifically speaking, guarantee is a subordinate obligation of the suppliers of goods, especially cars, to ensure quality and function of the good and standard within a specified timeline. The guarantee may have contractual or legal nature. When the suppliers commits to a guarantee, it has a contractual nature, but if, in spite of the uncertainty in seller's obligations, the law requires the suppliers to fulfill certain commitments, it has a legal nature. Guaranteeing, the subject of this research, with due regard to the circumstances, creates a sole responsibility for the persons involved in the supply chain or supplier. As a matter of fact, the commitment and responsibility of suppliers is not absolute, but they are subject to conditions and constraints. Supplier's liability is subject to emergence of defects or problems during the guarantee period. In this type of responsibility, it is enough for the consumer to prove that the flaw has led to an accident. The purpose of this responsibility is to impose the guarantee on the basis of the outcome not its quality. In other words, this guarantee should protect the costumers to rule out the possibility of elimination of any respectable right.
Results
Commodity guarantee is one of the legal mechanisms, according to which the supplier completes its defective commitment to provide goods to the customer according to the contract. The guarantee may be granted by law or by contract, which will respectively have a legal or contractual nature. The practical result of this division is that there is the possibility of limiting the contractual guarantee and agreement against the guarantee, but in the legal guarantee, no agreement contrary to guarantee can be made. The safeguards and provisions of guarantee are established in the Consumer Protection Act in 2009. The Law on the Protection of the Rights of Consumers of Automobile adopted in 2007 is the primary act and the Law on Protection of Consumers approved in 2009 is a later law. If the Automobile Consumers Act of 2007 on car user rights does not entail a decree, then one may refer to the Consumer Protection Act of 2009, which is a more extensive law regarding consumer rights in general, and if both laws are silent, the general rules of civil rights may come to use. The mechanism of the guarantee is organized in the Law on the Protection of Car Users approved in 2007, especially in Articles 3 and 4. As one can see, the Consumer Protection Act is a step forward because car suppliers are responsible for compensating consumers and third parties for damages, including financial and physical losses, the cost of treatment due to defective vehicles, the cost of car transporting to the repair workshop and supplying similar replacement vehicles during the repair period. The law of protecting car users during the guarantee period is a kind of sole liability. Therefore, in this type of liability, there is no need for the consumer to prove the supplier's fault and to engage in complicated issues. In addition, the supplier is required to fix any defects caused in the vehicle resulting from the normal use of the vehicle during the guarantee period.
This law tries to provide even more consumer protection, and it has been rather successful in this regard, but there are some shortcomings as well, which are mentioned in the following:
- Law on the Protection of the Rights of Consumers of Motor Vehicles, including Articles 3 and 4 approved in 2007 only addresses the supplier's liability during the period of the guarantee. The same interpretation is seen in judicial processes. Therefore, to rule out any uncertainty, the legislator had to determine the liability or non-liability of the automaker outside the guarantee period.
- The 2007 law of right protection only refers to the supplier's liability during the guarantee period, but the law does not determine whether the consumer can ask for compensation from anyone involved in the car manufacturing and distribution chain, including the manufacturer of the defective part, the sales agent, Sales representative and car manufacturer. In this regard, the Law on the Protection of Consumers of Automobiles could establish a liability for all agent involved in the production and supply of the product, since given the crucial role of deterrence in civil liability, if all the agents of the supply chain are held liable within the guarantee period, It will be more evident in fulfillment of consumer rights and product quality.
- Given the fact that cars are precious commodities with a large share in family expenses, one-year guarantee is too short (paragraph 1 of article 2 of the protection law) for the consumers. Thus given the short duration of the guarantee, such a protection is minute and trivial. Hence, the legislators could have set a longer guarantee period to have an appropriate protection of consumer rights.
- Due to the technicality and specialty of defective vehicles, the Consumer Protection Act did not provide a clear definition of defective vehicles. It was necessary to provide a clear definition of vehicle defect or to provide general criteria so that the consumer could easily refer to.
- Given the fact that the culture of recall by the automobile company to address the vehicle's defects and the commitment of car users to refer to the producers is very important, it was necessary to stipulate on the recall procedures, and the manufacturer's duty to recall and the consumer’s response to the recall would be determined, which is why the law is incomplete and due legislation is inevitable in this regard.
Scientific research
Hassan Rahpeik; Mohsen Shamsollahi
Abstract
Introduction
The share represents the right of its holder on a part of the company, but it is distinct from the Joint ownership of a property. Although the nature of the right of the owner of securities is closer to the objective rather than subjective right, intangibility of the securities make it ...
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Introduction
The share represents the right of its holder on a part of the company, but it is distinct from the Joint ownership of a property. Although the nature of the right of the owner of securities is closer to the objective rather than subjective right, intangibility of the securities make it difficult to identify featuresand assess the quality of the securities for potential investors.This aspect of securities has resulted in imposing the duty to disclose the information on securities transactions on the primary and secondary market in some legal systems. In Iranian law, Securities Act of 2004 created the mandated disclosure system for securities transactions in the primary and secondary market. In this article, it is intended to examine if this duty is justifiable according to the special foundations of the Iranian legal system; and if yes, based on what foundations. In short, it can be stated that, given the special features and specific rules governing securities transactions, it is a significant imbalance between investors and powerful market participants in accessing to the information there, and it seems to be necessaryto impose the duty to the disclosure of material facts on the stronger party.
Theoretical Framework
Traditionally, according to the principle of contractual freedom, the parties are free to maintain their own interests in the contractual relationship, because they are free to enter into legally binding agreements. Thus in the contract law, when one of the parties hasthe information that is necessary for the other party to decide about entering into the contract, he is not obliged to inform the opposite party. In this article we have examined, contrary to the general rules of contracts and the general rule of freedom, why the issuer is obliged to disclose all of the material information to the public in securities law. We think that since the material information about the issuer is necessary for the investors to decide about buying or selling the issuer’s securities and only the issuer’s duty to disclose the information allows the investors to make informed decisions, imposing this duty on issuers is necessary.
Methodology
In this study, apart from using descriptive and analytical methods, we have done a comparative study, in order to discover a logical relationship between securities law and contract law and why in securities contracts the issuer must inform the other party and in other words the public.
Results and Discussion
In the first place, we examined if the establishment of an information disclosure system in the securities market is theoretically necessary .In this regard, some commentators believe that in order to protect investors and enable them to make informed decisions, the duty to disclose information is necessary in the primary and secondary markets, and can eliminate the imbalance existing in the market, enabling the investors to make the right investment decision. In contrast, some believe in the inadequacy of disclosure requirements to protect investors. Unsophisticated investors, even if they have all of the important information about the issuer, will not properly comprehend this information due to lack of expertise. Therefore, they suggest that prior to the issuance of the securities, the securities market regulator should not allow issuers, whose securities are undesirable, to issue securities.
Secondly, we have examined the factors justifying the imposition of the duty to disclose information in the securities market on the issuers. In this regard, this issue has been investigated in terms of economic and contract law. In terms of contract law, we have discussed that this duty is not only intended to protect the weaker contract party, but also to eliminate informationalinequalities and to create informational balance between different market activists. Economically, we have examined this duty from the perspectives of institutional, operational, and allocational efficiency, and we have also studied the impact of information on securities price.
Conclusions and Suggestions
Firstly, we think that a disclosure-based system can better protect the investors unlike merit-based systems owing to their various problems, such as high costs associated with their implementation.
Secondly, the main basis of the establishment of a mandatory disclosure system is to protect the investors and make it possible for them to make informed decisions. the intangibility of the securities has eliminated the possibility of objective examination of the securities; while in accordance with Article 216 of the Civil Code, detailed knowledge is a necessary element for concluding the securities transactions. On the other hand, these securities represent the right of the holder to the company, and the main determining factor of their value is the current status of the company and its future financial situation, while it is difficult for non-shareholders and even shareholders to obtain this information. Therefore, to inform the investors and enable them to make informed decisions, it is necessary to oblige the issuers to disclose all material information which may have an impact on investor decisions and securities price.
