Seyed Massoud Mousavi Ardabili
Prof. Rabia Eskini
To achieve its research goals and spread the views of legal elites, this center manages the semi-annual scientific-research journal of "Comparative Law", which was previously published under the title of "Legal Letter" within the scientific-research journal of “Letter of Mofid” (Nameh-ye Mofid). This journal is now well-known as an independent popular journal among the state legal journals and has published numerous articles by elite professors and researchers of the country. The main policy of this publication is to study, analyze and compare legal issues and achievements in the original legal systems, expand and promote legal knowledge, analytical study of the Islamic legal system and its comparative study with other contemporary legal systems, etc.
Implication of Scope of International Derived Responsibility: Comparative Study of Responsibility of States and International Organizations
Mahdi Haddady; Mohamad Setayeshpur
Draft articles of International Law Commission (hereinafter ILC) on International Responsibility of States (2001) (ARSIWA) and International Organizations (2011) (ARIO) have considered responsibility for act of another party, called Derived Responsibility. Its scope is not clear enough, although being exclusive. In order to clarify the the scope of its application, the present article seeks to investigate the articles in the two said documents in connection with derived responsibility. Therefore, this will be dealt by comparative study of relevant articles in these two drafts. The comparative study of the two said drafts shows that, ‘Aid or Assistance’, ‘Direction and Control’, ‘Coercion’ and ‘Circumvention’ hav been regarded as the for scenario in respect of international organizations and states, the both. In spite of the fact that the cirumvention the international obligation has not been mentioned in arsiwa (2001), is also applicable to states. Derived responsibility in addition to the fundamental foundation of the law of international responsibility (ie derived responsibility), may lead to justice in the exercise of responsibility.
Mechanism of Supervision on State-owned Companies: a Comparative Study in Iranian & French Law
Maziar Ghasemi Goudarzi; Mahmoud Kazemi; Vali Rostami
Supervision on State-owned companies, to some extent, brings about health in the function of them. Different Supervising referrals are based in different judicial systems for supervising these companies. France is a country in which many structures for giving State-owned companies a proper supervision has been foreseen. Conducting an analogical study in Iranian & French Law can result in profound effects on our law system. The main question of this study is how the structure of supervision bodies works. To answer to the question, There are in total two chief structures to supervise State-owned companies; internal supervision, and external one on which each of them given to special aspects of the companies’ affairs. In this article, by applying a Descriptive-analogical method, an assessment of supervision bodies of State-owned companies in Iranian & French Law carried out, and eventually concluded that in French law the most important factor that helped to The quality of supervision on State-owned companies mainly regards the concept of transparency and constant Reporting of supervision results of the companies to the public.
Preparing Mechanisms for Protecting Traditional Knowledge in Iran Utilizing the Experiences of India
Nasser Alahvakil Jazi; Manucheher Tavassoli Naini; Rasoul Mazaheri Kouhanestani
Traditional knowledge is a kind of science and experience that has been gained after many years of experience in indigenous and local communities in certain geographic regions. With the increasing expansion of trade exchanges in the international arena, the need to support this knowledge is felt more than ever. The efforts of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which began in 2000 with the aim of drafting an international document for the protection of traditional knowledge, has continued, and various countries have, in parallel, taken actions in their domestic law to support traditional knowledge. In Iran, the Intellectual Property Policy Council is also preparing a draft law to support traditional knowledge. This research seeks to see if Iran can use India's experience in supporting traditional knowledge in legislative and implementation. The result of this research is stated Since India has taken actions in supporting traditional knowledge from many years ago and has achieved some success both domestically and internationally given the historical, cultural, and legal affinities of India and Iran, its experiences can be useful in the field of legislation and more than that, the establishment of mechanisms for the collection and consolidation of information and protection of Iranian traditional knowledge as one of the richest sources in Asia. Looking at India's experiences in developing and implementing the traditional knowledge system, this research offers suggestions for developing and implementing the mechanisms of this issue in Iran, including the method for collection and maintaining traditional knowledge databases.
The Study of the Business Judgment Rule in Americans Corporate Law and its Comparison with Iranian 's Law
Alireza Bariklou; Mohammad Sardoueinasab; Mahdi Mirjalili
The business judgment rule as a central and a judicially created doctrine in commercial companies’ law immunes corporate directors from personal liability for decisions they make on behalf of a corporation in order to manage it. There are two approaches about its reliability in American law. According to the first approach, the court can hold directors liable only if their decisions do not correspond with management standards. According to the second approach which is considered as “The Abstention Doctrine”, the courts can’t basically and usually review the board’s decisions and actions. Based on this approach, directors are personally liable against corporation only in special cases. The distinction between these conceptions matters a great deal and essentially comes down to who has the burden of establishing the existence of the factors that would grant or deny business judgment rule protection. In this article, we deal with these two approaches and its differences with Iranians commercial regulations comparatively.
The Emergence and Meaning of the Constitutional Conventions in the Legal-Political Systems of Iran and the United Kingdom
Seyed Ahmad Habibnezhad; Zahra Ameri; Mohammad Javad Hosseini
The roots of Constitutional Conventions depend on the political, cultural and social contexts of any society. The characteristics of the parliamentary regime in the United Kingdom and the relationship between the head of state and the head of government and the evolution of the role of parliament from advisory to special function can be the source of some Constitutional Conventions and arise from these customs and is equally important in quantity and quality. Which is used in Constitutional Conventions to regulate the relations between the two irresponsible elements (queen = king) and the responsible (prime minister) and to fill the gaps in the unwritten constitution, including in regulating the relations between the cabinet and the parliament. In Iran, the Constitutional Conventions have a hidden and of course important role in the political-legal life of society, and in all government institutions and in the relations between these institutions, traces of these customs can be seen that in addition to the field of behaviors, establishment Some institutions, such as the Expediency Council or the creation of some phenomena, such as the revision of the Constitution in 1989, are practical examples of the impact of these customs. A comparative study shows that the origins of customs in England are rooted in tradition; Thus, in England, customs are more stable, but in Iran, customs are typically born of the exercise of power by institutions of power, and for this reason, they try to cover up the custom of law.
The Effects of Choice of Court in Iranian Private International Law and Hague Convention 2005
Mohammed Mjed Kabry; Azam Ansari
Respect for the party autonomy principle has many various effects on private relationships at internal and international levels. The enforceability of choice of court agreements in the private international context is one of the most important effects of this principle. This effect has clearly been expressed in the law of some countries and the related international instruments. Recognizing such an agreement has effects on both the parties to the jurisdiction agreement and national courts. The article seeks to illustrate the effects of such an agreement. This article with the descriptive-analytical method and comparative approach with a focus on some national laws especially Iranian law and some related international instruments shows that recognizing the exclusive choice of court agreements has negative and positive effects on the parties and the courts. The negative effect is excluding the jurisdiction of the courts of one country and the positive effect is conferring the jurisdiction to the courts of another country.
Judicial Review of Administrative Official’s Error of Law in Iranian Administrative Law with a Comparative Approach to the Legal Systems of England and France
Error of law of an administrative official means ignorance of the law in the sense that the administrative official has a misunderstanding of the law or gives an interpretation contrary to the purpose of the legislator. But the important issue is how the judicial review occurre. In English law, in the traditional approach, only jurisdictional errors and error of law on the face of the record were reviewable from all types of Intra vires errors, but in the new approach, error of law in the broad sense of ultra vires is one of the causes of judicial review and was abrogated the distinction between jurisdictional and non-jurisdictional; so all the errors of law are reviewable. In French law, all types of administrative official’s error of law are reviewable, too. In Iranian administrative law, judicial review on error of law has not been explicitly provided, but it seems that it is possible to use the two bases that provided in the law for judicial review: "legality" and "departure from the limits of authority", although this is not same in the competence of the General Assembly and the branches. In the present research, by studying England and France legal systems in judicial review on error of law, rules and judicial procedure of Iran have been studied and to Identify this concept and judicial review on it, a solution from other legal systems is presented to provide the possibility of judicial review of the administrative official’s error of law in the administrative law of Iran in full.
Investigating the Components of the Labor Concept in Comparative Law
Atefeh Zabihi; Ahmad Rafiei
One of the issues that are discussed in the legal system of the countries is defining the concept of labor )as a subject of labor law( because precise explanation of its components leads to the determination of the territory of labor law. In order to achieve these components, the present study compares the labor law of various legal systems, (including Roman law and common Law) in countries such as France, South Africa, America, Egypt, Jordan, Japan, etc. Therefore authors are compared the criteria presented in countries under study by Investigating the definition of worker in provisions, judicial procedure and the doctrine then they classified these criteria in four major components. These conceptual elements include" provision of services by an individual", "performing the work personally", and "entitled to wages for work performed for employer", and "legal and economic employee’s subordination and dependency ", which can be taken into consideration in the country's judicial and quasi-judicial centers.
The Nature and Effects of Contract for Difference in Law and its Application to Jurisprudence
Zahra Sohrabbeig; Saeid Kheradmandy
Contract-for-difference (CFD) between the transaction and the asset value without the transfer of the underlying asset. It is true that such a new business, which has not yet been subject to any legal and juridical review, will face doubts in terms of legitimacy. If what is given as a change is the increase in the value of the subject of the transaction, it is a matter of the intangible nature of the transaction, and that the price and value of the subject are not known at the time of execution, it is a doubtfulness of the gambling and the existence of ignorance and ignorance. The present study answers all possible controversies and suggests that, on the one hand, CFDs do not pay an additional amount for the same subject, but at the end of a CFD, that issue really has a value and a price more than its beginning. However, the change in the value of the subject of the transaction is not a function of pure-chance and probability, but is entirely based on logical and mathematical reasoning and real-market motion. Therefore, it is not only gamble, but even ignorant, this ignorance is required by most Imamie-jurisprudents Therefore, given the great benefits of this business, the recognition of the nature, and the establishment of new laws relating to It is essential.
Analytical Mechanisms in International Documents and Domestic Laws and Regulations
Seyyed Aliakbar Mousavi; Gholam Hossein Masoud; Masoud Raei
The great revolution of the twenty-first century in new technologies has led terrorist groups to use less expensive and easier weapons and methods to achieve their goals in line with these developments. A clear example of them, is the use of biological weapons and the application of biological threats. The importance of bioterrorism threats and their extensive works led to increased international attention to this phenomenon. In domestic law, some documents, such as the Fifth and Sixth Five-Year Programs and the Biosafety Law, have addressed this issue. The present paper aims to "study bioterrorism in international documents and domestic law" using descriptive-analytical method and data collection in a library-documentary method. The results showed in domestic law although positive steps have been taken, due to the lack of serious biological threats, the low speed of the legislature and the lack of a differentiated view, the mechanisms of combating biological terrorism not efficient and the Iranian legislature has not been convicted the Bioterrorism as an independent crime. Therefore, in order to determine the response to that behavior, it must adapted to other general criminal titles. In the international arena, the shortcomings and ambiguities in some international documents and the problem of verifying the performance of government’s, are the weaknesses of international standards in the field of biological weapons.
Role of Electoral Systems on Women’s Parliamentary Participation (Comparative Study: I.R Iran & I.R Afghanistan)
Yones Fathi; Nusratullah Nabeel Rahimi
The equal political participation of men and women is one of the fundamental goals of democracy and human rights principles. According to new researches one of the most significant and effective steps for political empowerment of women is to strengthen their parliamentary participation. However, the level of women's parliamentary participation is strongly linked to the electoral systems. The level of parliamentary participation of women in states which are using the proportional system is much better or higher than the states which are following the majoration system. So the main question in this article is what is the relationship between the electoral system and the parliamentary participation of women in Iran and Afghanistan? Based on the results of this study, it can be said that there is direct correlation between the electoral systems and the status of women's parliamentary participation. Due to the use of the two-round Plurality and Majoration system, the level of participation of women in the Iranian parliament is weak. In addition, the use of a Single Member non-transferable voting system (a system which has more overlap with the majoration family) in Afghanistan has also increased dependence on gender quotas. This article is applied research and data analyzed by using the Descriptive and deductive method.
Inadmissibility of Resorting to the Principle of Overriding for Inclusion of Article 167 of Constitution over Penal Lawsuits (Studying the Topic from the Viewpoint of Islamic Jurisprudence Rules and Islamic Penal Code)
Hossein Jafari; Amin Khedri Amirian
Inclusion or lack of inclusion of article 167 in the constitution towards penal lawsuits, has been disputable by lawyers from long time ago. In order to avoid breaching the principle of legality of crime and punishment in the constitution, most lawyers believe that article 167 is allocated by article 36 and it is not included penal lawsuits; but some lawyers by virtue of principle of overruling in Islamic jurisprudence, are going to generalize the concept of the word law to codified and uncodified law (Fiqh) and also place the penal lawsuits in the scope of inclusion of article 167. In this writing, while detailed explanation of the principle of overruling, it is proved that there are not the terms for implementing this principle in articles 167 and 36 from the viewpoints of Islamic jurisprudence. In the following, ignoring this fundamental problem, referring to Fiqh in quadruple punishment has been examined based on Islamic penal code acted 1392; and resorting to the process of legislation in unspecified penalties and also the viewpoints of Imam Khomeini (Peace be upon him) and his practical procedure in law of penalties, it is proved that in this kind of punishments, we can not refer to Fiqh.