Scientific research
sayyed mohammad hadi Ghabooli dorafshan; mohammad taqi fakhlaei; mohammad hasan haeri
Abstract
Introduction
The legal status of contracts with illegal purpose is one of the most important issues raised in law and Islamic jurisprudence which in different legal systems is analyzed under the topic of motive. As far as this issue is concerned, three situations have been distinguished in Iranian ...
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Introduction
The legal status of contracts with illegal purpose is one of the most important issues raised in law and Islamic jurisprudence which in different legal systems is analyzed under the topic of motive. As far as this issue is concerned, three situations have been distinguished in Iranian law: The first situation is where the illegal purpose has entered the contractual scope, the second is where the illegal purpose is merely in the mind of one contracting party, and the last situation is where only the other party is aware of the illegal purpose. Under Iranian law, an illegal purpose makes a contract void, only if entered the contractual scope. Article 217 of the Iranian Civil Code appears to declare the contract as void only if the illegal intention is explicitly stipulated in the contract; nevertheless, there is controversy among Iranian legal scholars as to the interpretation of this article; the question is: When an illegal intention renders the contract void? The study of these scholars' different opinions, while considering their foundations in Imamia jurisprudence, prepares the ground for an exact and correct interpretation of article 217 of the Iranian Civil Code based on realities of the society.
Theoretical Framework
The purpose of a contract is the main motive of one party which has, explicitly or implicitly, entered the contractual scope.
Purpose of contract must be distinguished from similar concepts such as cause of contract which is typical in all cases of a certain contract, regardless of each party's personal motives. Object of contract is another concept which must be distinguished from purpose of contract. The latter, as the main motive of the contract, enables the parties to achieve the object of contract.
By illegal purpose, it is meant each case where the purpose is contrary to public policy, ethics and religious rules, even if there is no specific legal provision on it.
Public policy, generally, is a status in which the main frameworks and redlines of legal rules are respected.
Methodology
The authors, after defining the main terms used in this article (the theoretical framework), applying an analytic-descriptive method, discuss different opinions offered by legal scholars and Imami jurists about the remedy of illegal contracts and criticize and study the justifications put forward for those opinions.
Results & Discussion
The Iranian legislator has, in article 217 of the Iranian Civil Code, made the effectiveness of illegal purpose of a contract subject to its explicit stipulation in the contract. According to article 217 of the Iranian Civil Code, "it is not necessary to stipulate the purpose of contract but in case it is stipulated, it must be legal, otherwise the contract would be void". The results of the present article show that a category of Iranian legal scholars, following the famous opinion of the Imami jurists and by means of a literal interpretation, believe that illegal purpose makes the contract void if communicated by the party with such a motive, to the other; the adherents to this opinion see it in favour of legal certainty and security of legal relationships. On the contrary, a group of Iranian legal scholars, following the lesser known opinion of the Imami jurists, consider the above said interpretation inconsistent with the philosophy behind the enactment of article 217 of the Iranian Civil Code and treat the contract as void in case one party is aware of the illegal motive of the other.
Conclusions & Suggestions
The authors believe that the lesser known opinion of Imami jurists and legal scholars is more consistent with legal and economic interests of the society. This issue is, nowadays, of special importance with regard to contracts affecting the economic field, since believing that only explicitly stipulated purpose makes contracts void is harmful to the society and paves the way for conclusion of contracts made with the intention to disrupt public policy.
Scientific research
seyed mohamd mahdi sadati
Abstract
Smuggling in Iranian criminal law is infraction or economic crime. Smuggling by false statements and documents is a kind of smuggling crimes. Complexity of economic affairs, lack of legal analysis about the constituent elements of this crime and new adoption of these statues make analysis of this crime ...
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Smuggling in Iranian criminal law is infraction or economic crime. Smuggling by false statements and documents is a kind of smuggling crimes. Complexity of economic affairs, lack of legal analysis about the constituent elements of this crime and new adoption of these statues make analysis of this crime inevitable.
Smuggling is defined in law dictionary as: “import or export of goods illegally for example without paying customs” (Curzon, 2002: 392). Smuggling is a crime and in various statutes and bills in the Islamic Parliament such as the bill of “Establishment of Anti-corruption Agency” is named as “economic crimes”. One of the most important types of smuggling as discussed in this article is smuggling by false statements and documents. The main problem of this issue is the definition and the elements of forming this crime.
This crime does not fit the crime of smuggling in common definitions (Pazhooyan, 2006: 46/ Jafari Langroodi, 1998: 51) Because in this crime essentially a commodity may not enter or exit. So only offering and presentation of False Statements and Documents make the action of the person smuggling. On the other hand, definition of smuggling refers to the laws that in them some acts are considered smuggling or has the smuggling sentences, while the purpose of definition basically is to demystify the terms. So, in definition, the term should not refer to the laws.
According to the description above, the definition of this kind of smuggling is: “submitting false documents or declaration to customs on arrival or departure of the goods or vehicle, so that there is a possibility of harm to state.”
The legality of crime and punishments principle implies that actus reus and mens rea must be determined in statutes (Sadeghi, 2014: 57).
In Iranian law, smuggling by false statements and documents are criminalized in various laws: Paragraphs "a", "b", "c", "d", "c", "d", "e", "f", "g" of article 2 of the act of “combating smuggling of goods and exchanges”, articles 93 and 94 and paragraphs “a”, note of "b", "c", "d", "e", "f", "g" of article 113 of “customs act” and the article 24 of the “health promotion of administrative system and anti-corruption” act.
On the implementation of the act committed by legal provisions, first we must refer to “combating smuggling of goods and exchanges act”, since it is enacted earlier than other statutes. Then we recourse to the “customs act”. However, it should be noted that none of the customs act articles have explicitly or implicitly been abrogated by “combating smuggling of goods and exchanges act”. In the third level, if the act is not subject of the penalties set forth in one of these two laws, we must refer to the article 24 of the “health promotion of administrative system and anti-corruption Act”.
The actus reus of most crimes has three components: physical behavior set of conditions and circumstances and results. Physical behavior of this crime is a submission of the false documents, false declaration or non-declaration.
The criminal responsibility of who made omission is based on a duty to act, but he has not fulfilled its duty (Sadeghi, 2013: 31).
Among the conditions of this offense, four conditions are all important: First, the documents or statements must be false. The term “false” means contrary to the fact which may be in the material or content of the documents. Submission of false documents or declarations to the competent authorities (Ahmadi, 2012: 81) and being the subject of smuggling the goods or vehicle are the second and third terms. The possibility of harm to government revenues is the fourth condition in committing this crime.
This crime is a conduct crime and merely false declaration and submission of false documents may form this crime, whether the goods or vehicle exit from the customs organization or not. It is also sufficient to commit this crime by any mens rea and makes no difference whether the documents or statements are untrue deliberately or unintentionally. It is called “strict liability crimes” that some jurists believe that may happen without any men rea or fault (Goldouzian, 2007: 414/Sadeghi, 2014: 435).
Attempt to crime in smuggling by false statements or declarations are considerable, in spite of the view of some jurists (Noorbaha, 2005: 223/Ardabili, 2013: 316).
Methodology
This article by analytical method, on the basis of literal and conceptual interpretation of the articles of smuggling by false statements and documents in the various regulations, study the constituent elements of this crime. Also, domestic judicial decisions and legal practices in some countries are applied to explain this study more.
Results and Discussion
As a result, it is safe to say that the legal element of this crime sporadically are some articles in several regulations. This crime has strict liability and committed by action and omission. The false document or statement, its submission to authority, goods or vehicle issues and possibility of loss to the state are the terms that should be considered in formation of this crime. Strict liability of this crime makes demonstration of mens rea needless.
Scientific research
ayat moulaee
Abstract
Introduction
The concept of negative externality is one of interdisciplinary phrases that has been discussed in the field of economic sciences since the last decade of the 19th century. In the following decades, this concept gradually entered the law literature. Although, in nature, it lies within the ...
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Introduction
The concept of negative externality is one of interdisciplinary phrases that has been discussed in the field of economic sciences since the last decade of the 19th century. In the following decades, this concept gradually entered the law literature. Although, in nature, it lies within the economic discussions, its main relationship to the field of law is because of the fact that this issue is linked to individuals’ “ownership and responsibility” and negative externality is a clear example of individuals’ responsibility that is necessary to be reflected upon to economize the means of fighting with it.
In Iran, one of the few documents that has mentioned the issue of negative externality is the “Wastes Management Act”. In this document and its executive regulations, the legislator has considered the legal arrangements for confrontation with negative externality and has mentioned the tools for this purpose.
Theoretical Framework
The theoretical basis of using the tools can be discussed from two economic and legal perspectives. From an economic perspective, the justification for using tools should be sought in the word "economizing". From the legal perspective, on the other hand, the basic justification for the use of tools ought to be searched in the concept of “right”.
Methodology
In the present article, economizing the tools of fighting against externality in the "Waste Management Act" was investigated from the perspective of public law using a descriptive – analytical method.
Results and Discussion
The concept of externality has two aspects: positive externality or external benefit and negative externality or external cost. In the present article, the negative aspect of externality has been discussed. Negative externality is the external consequence of the conditions caused by production or consumption, which is incurred upon a third party in the form of costs, without being reflected in the market price of the goods or services and without the third party having been satisfied with this situation. But what is the relationship between negative externality and legal issues? The answer is that if an action is related to individual, collective and social rights and leads to the violation of these rights in any way, in this case this issue lies within the scopes of law.
As it was mentioned above, In Iran, the most common document in the field of common or public goods related to negative externality is the Waste Management Act and its executive regulations. There are three types of tools to deal with negative externality: voluntary, compulsory and combinatory, which can be briefly named the “VCC” model. Voluntary tools include "family and community", "volunteer organizations" and "private markets". A detailed examination of this act and its executive regulations revealed no voluntary tools.
Compulsory tools include "regulations", "government corporations" and "direct supply". It can be observed that using the regulatory tool has been used in various forms and it can have a considerable effect on general policy makings. The "direct supply" tool has been used in a limited form. But "government corporations" tool has not been explicitly mentioned.
The Most common forms of the combinatory tool include: "information and advice", "subsidies", "auction of property rights" and "taxes". "Information and advice" tool has been used at a reasonable level although its implementation method may be a matter of controversy. On the one hand, the use of the subsidies tools has not been adequately addressed and, on the other hand, the legislature has not paid any attention to the tool of property rights auction. Finally, that green tax tool has not been seriously attended to by the legislature.
Conclusions:
The results from this study indicate that although the mentioned act is the most important measure taken by the legislator for identifying the negative externality in the Iranian legal system. At first glance, it seemed that because this act is the latest legislative action for confronting the effects of negative externality, it has been approved in response to the current needs of the society. However, it was found in the present article that this act has not been successful at least in the area of application of tools.
Accordingly, it should be stated that, first of all, in this act, in the framework of the Iranian legal system, the concept of responsibility has been founded upon responsibility based on fault and, as a result, suffering parties of negative externalities will have a difficult and, sometimes, impossible task in proving "causality”. Second, by understanding the new realities of social life, the law−maker should think of some mechanisms to economize the tools and use new tools for facing the negative externalities. Third, the law−maker could properly use appropriate tools for changing “waste” from “garbage” to an “economic good” using the master key of “recycling”.
Suggestions
It seems that considering the two economic and legal perspectives, some suggestions can be made in the area of voluntary and combinatory tools as follows:
− Development and extension of private markets tools: In the area of voluntary tools and within the framework of economic logic, the best mechanism for waste recycling garbage is "economic valuation" for the wastes. The most important combinatory tool supporting private market tools is the Green Taxes.
− Changing the approach towards the two institutions of ownership and civil liability.
Scientific research
sadegh safari; Farhad Shahveisi
Abstract
The purpose of changing laws in the capital market is to encourage potential and actual investors. In developing countries such as Iran, it has become mandatory to codify revelatory laws and regulations as to clear financial information in order to help increase transparency of these pieces of information ...
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The purpose of changing laws in the capital market is to encourage potential and actual investors. In developing countries such as Iran, it has become mandatory to codify revelatory laws and regulations as to clear financial information in order to help increase transparency of these pieces of information and create a culture of investment in the Stock Exchange. Codifying laws and regulations related to the stock exchange is a necessity to protect the rights of investors and organize, maintain, and develop the capital market.
Stock Exchange Act (ratified in 2005) is a legal act, consisting of sixty clauses and nine subsections, which aims to organize, maintain, and develop a transparent, fair, and efficient securities market passed by Islamic Consultative Assembly on 22 November 2005, effective as from four months later. The term ‘Fair Market’ signifies that all market participants should be able to act under the same rules and conditions, so no continuous and excessive inequality as to access to information, access to the market, and no order fulfilment priority will be caused.
This research aims to recognize the effects of laws and regulations governing Tehran Stock Exchange (Stock Exchange Act ratified in 2005) on the analytical behavior of financial analysts.
This research covers the analytical behavior of financial analysts in Tehran Stock Exchange during the following periods: 2000 to 2005 (before the ratification of 2005 Stock Exchange Act) and 2006 to 2011 (after the ratification of 2005 Stock Exchange Act). That’s why the behavior of financial analysts is studied according to Forecast error, Forecast dispersion, and Forecast number. Member companies of the investment industry group accepted into Tehran Stock Exchange constitute the subjects of this research. The required information of companies was gathered from the databases of Tadbirpardaz, Rahavard Novin, and the official website of Securities and Exchange Organization of Iran. Afterwards, these pieces of information were summarized and estimated in Excel, ready to be analyzed, and variables of interest in this research were calculated and underwent the final analysis via the following statistical software: Eviews and Minitab. The reliability level used to test the hypotheses and examine the assumptions of the classical regression is 95 percent. To test the hypotheses, the regression analysis was used, and to choose among the panel and integrated data (pooling) F-Limmer test was utilized. Based on F-Limmer test, the panel data was selected to test the first and third hypotheses, and the integrated data (pooling) was selected to test the second hypothesis. In order to determine the type of panel data (random and fixed effects) in the first and third hypotheses, the Hausman test was used in a way that the first hypothesis was tested via panel regression with random effects, and the third hypothesis, via the panel regression with fixed effects. The Jarque-bera test and cox-box transformations were utilized to check the normality of the data. The controlled variables of the current study, controlled in accordance with the evidence about their influence on the dependent variables, are as follows:
1. Company Size (Size), 2. Return of Assets (RoA), 3. Systematic Beta Risk (Bet), 4. Financial Leverage (TDTA), and 5. Altman Z-score (Alt-Z)
The results show that the implementation/execution variable of Exchange Act (Z) does not affect the analysts' forecast error (FE), because the significance level for this variable is %47, which is more than %05 error level. The implementation/execution variable of Exchange Act (Z) affects the analysts’ forecast dispersion (FD), because the significance level for this variable is %0133, which is less than %05 error level. On the other hand, the estimated coefficient for variable of Securities Exchange Act (Z) is positive. The number of financial analysts’ forecasts is not affected by the Exchange Act, because the significance level for this variable is %0896, which is more than %05 error level.
The results of this research show that there is no significant differences in Forecast error of earnings which, in turn, signifies special economic and political conditions governing the country in order to obscure the information and create a climate of mistrust in the business environment. This law has been able to affect Forecast dispersion positively, which reflects the existence of obscurity in the information available to the analysts. It is recommended to investors in Iran Capital Market (especially the newcomers) to invest more cautiously; due to the uncertainty in the market, they had better invest in investment funds and companies, and use the of analysts' forecast dispersion as a criterion to invest in the capital market.
The Forecast number of analysts shows no significant differences as to the implementation of this law; it can be put down to the notification of Fast Revelation of Information Regulation (2001) by the Stock Exchange Supervisory Council affecting the Forecast number. As a result, the behavior of analysts has been influenced in terms of Forecast dispersion after the ratification of the Stock Exchange Act in 2005.
Scientific research
Sam Mohammadi; Majid ABBAS TABAR FIROOZJAH; Ali Sedaghati
Abstract
The purpose of legal rules and procedures is to regulate social relationships and maintain order in a community to pave the way for economic and social improvements. Based on this, legal rules are to be adaptable to different contexts, and the legislator is to be well-aware of the realities of the society ...
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The purpose of legal rules and procedures is to regulate social relationships and maintain order in a community to pave the way for economic and social improvements. Based on this, legal rules are to be adaptable to different contexts, and the legislator is to be well-aware of the realities of the society and observe them carefully. Rules and regulations concerning unauthorized transactions, which have been dealt with in the Iranian law since a long time ago, are established based on the assumption that supporting the owner would lead to the prevention of theft and fraud. Accordingly, the rules associated with unauthorized transactions set the principle that no one can grant nor sell anything that does not belong to them whatsoever. This principle has enjoyed great integrity and use in the past, now, however, the world of business calls for a change due to the transformed nature of trades and transactions which clings on the decision-making speed.
This paper aims to investigate the ineffectiveness of the rules and regulations concerning unauthorized contracts from philosophical and economic points of view. To do so, first we will deal with the issue of Domain of Knowledge, which posits that knowing the real owner is not logically possible for the potential buyers. Alternatively, we will illuminate the notion that the principle of Yad (the principle which considers the owner to be the one who currently possesses the possession) in the realm of contracts is closer to the theory of appearance comparing to the rules concerning unauthorized transactions. Finally, we will analyze the issues at hand from an economic point of view to see which one can maintain the transactional order in a society.
In this day and age, it goes without saying that human cannot grasp the naked truth, and can only resort to the appearance of things. Knowing this, it is obvious that no potential buyer would be ensured of the real owner, so the transaction is to be carried although there is no way to know whether the seller is the owner of the possession or not. The transactions are chiefly done based on a mere conjecture rooted in the compelling evidence showing that the possessor is the owner. In other words, people cannot be expected to thoroughly investigate the ownership of the seller before a purchase; however, they are to look for it to a standard minimum extent so as to know the owner and observe the principle of speed in the transactions. That is why people would always trust the appearance of things and regulate their behavior based on that. In view of that, the rules concerning unauthorized contracts impose responsibilities on people which are beyond their capabilities. Legal rules and procedures should be set in accordance with the common behavior of people. Otherwise, transactional order would disturb and people would always be in stress whether the possession they have purchased belonged to others or not.
The documents regarding the principle of Yad do not accord with the interoperations given for this principle. One instance of the documents, which is used a lot in fatwa-decreeing (religious decrees), is the one related to Hafs Bin Ghayas, in which the Imam has used certain terms [لولم یجز هذا لم یقم للمسلیمن سوق] to justify this principle indicating the transactional order. This would only make sense if we believe in the validity of an authorized transaction. The main evidence of this is the principle of common sense (manner of the wise). The common sense does not consider an unauthorized contract to be nullified and calls for more evidence in this term.
In an economic examination of the issue at hand, the acceptable rule concerning unauthorized contracts is to be the ones which reduce theft and crime in the society, and impose less cost on the parties. Executing the rules concerning unauthorized transactions and supporting the owner would increase the negligence on the part of the owner and thus impose unnecessary costs and problems on people who have not made any mistakes. On the other hand, in case of executing the theory of appearance and supporting those who trust the appearance, the owner would be more careful and avoid negligence in cases like not registering the transaction, and he/she would protect his/her possession; secondly, the buyer would be more meticulous in knowing the real owner to be later supported by the law. This happens because the commodity will be given to the purchaser in good faith. In this way, we will observe both transactional order and a reduction in the possibilities of theft and fraud, and thus an acceptable social security will be seen in the society. In addition to this, the acceptance of the rights of a purchaser in good faith will enable the parties to sign a given contract after conventional examination of the ownership. However, in case of mere supporting of the owner, buyers should do more than the conventional examinations, and investigate to see whether the seller is the real owner or not. This would reduce the contract costs and, as there is no way to know the real owner, would undermine trust in the market and thus it will lose its credit, which is of great importance economically speaking.
The purpose of owning a commodity is no just the mere possession of it, but the usages it can bring. Accordingly, insisting on the tangibility of the concept of ownership is kind of neglecting the truth. It is because by an appropriate compensation, the owner will get back what he/she has lost. Accepting the theory of appearance would dismiss many of the legal rules; however, we should bear in mind that the aim of legal rules is to meet the demands of the society, and currently the society calls for it. What is actually practiced in the society is based on supporting the ones who trust the appearance, while the law has not provided an answer for this yet.
Scientific research
mehdi haghighatjoo; Ebrahim Rahbary
Abstract
There are various and different strategies for expanding business influence in commercial markets. External extension of corporations can be regarded as one of the most important ways for influencing on markets and increasing productions.
There are some similar strategies that have same performance ...
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There are various and different strategies for expanding business influence in commercial markets. External extension of corporations can be regarded as one of the most important ways for influencing on markets and increasing productions.
There are some similar strategies that have same performance like External extensions, but we should not have analogous perception from them. Joint venture, cartels, foreign investments and other similar concepts are similar strategies that can be regarded as same concepts.
Certainly there are too many differences between these two expressions. First, we should study about External extension concept.
However, having vague concept and obscure scope makes its recognition hard. The importance of this ambiguity reveals when we concern controlling rules in markets. Without any comprehensive knowledge about its scope, market administration does not have appropriate utility.
The most significant point is that external extension is related to the markets orders and it can be included as an anti-competitive procedure. So, it connected to competition law and it should be figured as an effective instrument in market. Consequently, market authorities should compare its matter with competition law principles. Without any exhaustive understanding about its extent, they cannot manage markets correctly. So, understanding its concepts requires analyzing its structure.
External extension can be regarded as some commercial strategies for expanding companies’ activities by using other companies’ sources. In other words, a company that is seeking to expand its activities, takeovers other companies sources by external strategies. So, it is a commercial way for using external benefits. Accordingly, "external" refers to every benefits that are happened out-side of the company.
So, after illustrated meaning of external, we should study about the scope of this concept in markets surface.
By analyzing external extensions in economic markets, we can reach that “merger and acquisitions” are its exclusive subjects. So, we Should not extend its scope to the other business instruments. For this respect, joint ventures, cartels, and other similar ways do not have conformity with the scope of external extension. These strategies concern internal source and try to expand companies activities from inside. So, we cannot have the same generalizations from these two ways.
In this way mergers are external extensions, because transferee company, by absorbing other companies property, takes the commercial position in market. So, transferee company expands his activities by taking outside benefits.
As well, acquisitions can be regarded as external extension ways, because it has the same performance. In acquisitions, transferee company acquires "chief shareholders" of other companies. So, by taking possession of main securities of transferor companies, they can aquire there controls. In this situation, transferee company takes transferor company source and expands his activities in economic markets.
So, on the basis of above observations, mergers and acquisitions have the same performance. Because both of them can be regarded as external extension strategies.
The result of this study is that today we should regard external extension as a common way in commercial world. In the meantime, our territorial markets are not excepted from these waves. using these methods its available by irainian and forign company. So that it can be exercised in our market without any impediment.
Today by increasing private sector, these strategies can be resolved as a common way in markets. but without any exhaustive control from market authorities, it can be regarded as a dangerous procedure. Therefore, we need exhaustive controlling system to protect markets orders from its uncommon angles. The exhaustive controlling system is a unique collection that has perfect substance and appropriate content to all of its corners.
Our studies have some conclusions and suggestions. External extension has narrow scope and limited kinds. So we can only regard mergers and acquisitions as its subjects. Accordingly, they have similar structure. Although we cannot deny their same roots, there are too many differences between them. Because they have two different natures. Merger creates special effect on markets that are different from acquisitions. If directors use mergers to influence on markets, they reach the most scope of extension in markets. On the contrary, if acquisitions are used, extension has frivolous effects. Because of their different effects, they create various ranks of monopolies in economy. Therefore, mergers have more sensible extension. When directors use it, we can see a solid union on markets. But acquisitions effects are not very obvious. It can be regarded as a weak way for penetrating in markets.
From above text, we can recognize there separates natures. In addition, these differents natures have necessitate some special controls. In other word, for controlling these natures markets authorities should exercise diffrent rules. So that, mergers and acquisitions necessitate various control. On the absent of these, we couldn’t reach to oure desire about markets orders. First, we should have an exhaustive comprehension these different nature. Without any exhaustive comprehension about these different natures, we cant control market from these ruined effects.
Unfortunately, in Iran’s Acts, legislator didn’t attend to these different natures. So in oure rules we have unjust combination between these two natures. In this situations our suggestion is that we should exercise different control on each contractual forms.
