First Pages
text
article
2021
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Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
1
5
https://jcl.ut.ac.ir/article_82788_93ca6329741e496250f24dee8662558f.pdf
dx.doi.org/10.22059/jcl.2021.82788
A Comparative Study of Physicians Civil Liability to Non-Patients in Iran and U.S.A.
Atefeh
Ajori Ayask
Assistant Professor of Law, Faculty of Literature and Humanities, University of Birjand, Birjand, Iran
author
sedigheh
Mohammadhasani
PhD Student in Private Law, Razavi University of Islamic Sciences, Mashhad, Iran
author
text
article
2021
per
The legitimacy of medical treatment depends on the patient's informed consent. Medical law, therefore, recognizes the "obligation of information" as one of physician duties. This duty is not limited to informing the patient. Rather, despite the principle of confidentiality in medical law, in many legal systems, it is accepted that the physician in order to protect non-patient must give necessary warnings to the patient or to the exposed person at risk from the patient. Otherwise the physician will be responsible for any damage to non-patient. Considering that this liability been raised for the first time in American law, and on the other hand, considering that Iranian law and jurisprudence have not addressed this issue; This article, based on descriptive-analytical method, comparatively studies the conditions of such liability in US and Iranian law, in order to clarify its various dimensions and to provide suggestions for Iranian legal system. The present article shows that US and Iranian law on the liability of physicians to non-patients have common principles and the American legal system, which is a leader in this field, can be used to regulate the conditions of this liability in Iran.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
1
21
https://jcl.ut.ac.ir/article_79118_43730d63e70eff319300aae32ea14833.pdf
dx.doi.org/10.22059/jcl.2020.312303.634095
Comparative studies of Agreed Damage Provision du to non performance of contract in Iran and Afghanistan Law
Goudarz
Eftekhar Jahromi
Professor, Faculty of Law, University of Shahid Beheshti, Tehran, Iran
author
Mohammad Ishaq
Rahimi
Assistant Professor, Faculty of Law & Political Science, University of Balkh, Mazar e Sharif, Afghanistan
author
text
article
2021
per
Agreed Damage provision due to non-performance of a contract is one of the contractual sanction breaches that parties to a contract agree to. At the conclusion of a contract damage caused by violations, measured and calculated in accordance with different criteria, are agreed to on the basis that, if one of the parties violates the obligation they have been in charge of implementing they must pay agreed damages to the other party. In agreed damages provision, due to non-performance of the contract, the main aspect is subordinate to the main contract and extends irrevocable and non-revocable of the main contract to that. Of course, the agreed damages provision, are absolutely binding whether the main contract is revocable or irrevocable and as long as the revocable contract is not terminated, provision contained therein are enforced. Consequently, the implied terms of the original contract remain in force and until the original contract loses its validity.
However, the condition for determining the contractual damages is the nature of the condition of the conditional act and sub-obligation. Although the condition of damages is a subordinate obligation and the condition of the contract, like other commitments and conditions, it is based on principles. Thus, as with the threefold theories of the basis of contractual obligation, the theory of the rule of will, the theory of moral obligation, and the theory of law, the same theories apply to the basis of the condition of damages. Of course, today, none of the three theories alone can be the basis for fulfilling a contractual obligation; Conditions, including the condition of contractual damages, each plays a role in creating their binding force to the degree of its importance. As the importance of the agreement of the will of the parties cannot be completely denied, but its role is not so limited. On the other hand, social needs do not cause the government to ignore the individual and his wishes in all cases, but the government intervenes in guiding and supervising contracts according to needs and will be ineffective if the agreement of the conflicting parties with social interests is reached. In addition, due to the influence of Iranian and Afghan civil law on Islamic jurisprudence, the basis of the obligation of the parties has a valuable face and the basis and principles of the obligation to implement contracts and conditions, including the condition of contractual damages are ethics, verses and traditions.
The condition of determining the contract of damages causes the contractor to enforce the provisions of the condition in case of violation of the contract, and in case of violation of the provisions of the condition of the contract, he can request legal enforcement or termination of the contract from judicial authorities (Afghan law). In fact, the obligation to implement the provisions of the condition and the termination of the contract in the Afghan legal system are intertwined. As the contractor has the right to force or terminate the contract through the official authorities, but in Iranian law, the obligation to implement the provisions of the condition and the termination of the contract are mutually exclusive. In such a way that the conditional can terminate the contract only if it is not possible to implement the provisions of the condition. Otherwise, if conditional coercion is possible, the ground for termination will not be provided. On the other hand, termination is a non-judicial act due to non-implementation of the provisions of the condition in Iranian law, and the probationer can terminate the contract without going to court.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
23
40
https://jcl.ut.ac.ir/article_82747_5b72d419d3d098cb9e22e5754542346c.pdf
dx.doi.org/10.22059/jcl.2021.323516.634192
A study of the conflict of law rule applicable on Security agreement against a right to payment of a monetary obligation under UNCITRAL Model Law on Secured Transactions: Approaches for reviewing Iranian law
Hossein
Hamdi
Ph.D. Student in Private Law, Faculty of Law and Political Science, Kharazmi University, Tehran, Iran
author
Alireza
Salehifar
Assistant Professor, Faculty of Law and Political Science, Kharazmi University, Tehran, Iran
author
Seyed Ali
Khazaei
Assistant Professor, Faculty of Law and Political Science, Kharazmi University, Tehran, Iran
author
Sahar
Karimi
Assistant Professor, Faculty of Law and Political Science, Kharazmi University, Tehran, Iran
author
text
article
2021
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The UNCITRAL Model Law on Secured Transactions which was approved by the UN General Assembly in 2016 has provided for rules on conflict of laws to determine the applicable law on secured transactions. These rules separate the contractual aspects from the property aspects of each secured transaction. The contractual aspect includes the mutual rights and obligations of the grantor and the secured creditor. Contractual aspect involves the mutual rights and obligations which are created between the parties to the agreement. It also includes the effects of the contract against third parties who might be affected by this contract. The effects of a contract on secured transactions will affect three parties. The first party is the guarantor who demands money from another person as collateral. The second party is the guarantor who accepts the mortgaged property. This contract is considered obligatory for the guarantor, but it is regarded voluntary for the other party. The latter whenever wishes might waive the collateral and if the guarantor has incurred costs in enforcing the collateral, the guarantor must reimburse these costs. The third party who owes money although is considered to be a third-party collateral for the contract. However, because his liability is the source of his debt, if he is notified of a security right in a receivable he is obliged to fulfill its obligation upon request. The second paragraph of Article 1 of the Model Law extends the scope of this law to the transfers of receivable contracts. This paragraph states that: “except otherwise is provided in Article 72 to Article 82, this law shall be applied to transferees by agreement of the parties”.
Property aspect of a contract on secured transactions involves the creation of effectiveness for third parties and priority of a security right among competing creditors. This distinction has been made on the basis of the protection of certainty principle and predictability objective as well as the protection of reasonable expectations of involved parties and also the protection of third parties’ rights. The model law considers that the law chosen by the parties would be the applicable law on the contractual aspect of security rights. In the absence of a choice of law by the parties to a contract on secured transactions, the law of a State that the security agreement has most closely connected with it will be applied. This place is the place where the characteristic of the agreement as the most important part of the obligations arising from security agreement have the most resemblance with the law of that country. Because the monetary obligation owed to the debtor of the receivable is used as encumbered asset, the UNCITRAL Model Law on Secured Transactions, makes the relationship between secured creditor and the debtor as the subject of applicable law between the debtor and grantor as the principal creditor. This is to protect the debtor’s rights regarding the property aspect of the security agreement, the law on the location of the grantor has been determined as the applicable law, although there are exceptions to this rule.
The purpose of the UNCITRAL Model Law on Secured Transactions is to establish a new system for endorsing obligations by means of movable property, both tangible and intangible. This law provides for conflict resolution of laws to determine the law governing the agreement. Protecting certainty and predictability, as well as the legitimate expectations of stakeholders are considered as criteria for determining the rules on conflict resolution. The contractual aspect deals only with the rights and obligations arising from the contract and is limited to the relationship between the guarantor and the pledgee and the debtor of a monetary claim. Regarding the contractual aspect, the law governing the mutual rights and obligations of the guarantor would be their chosen law. In the absence of the selected law, then, a law which has the closest connection with the contract shall be applied. The benchmark for the determination of the closest relationship is to realize which of the parties fulfills the most important and major part of the obligation so that the law of his place of residence can be considered as the governing law. In this vein, the most important part of the contract relates to the nature of a contract, and it is a part of a contract which the contract was mainly created because of it, and if it does not exist, it is not a contract.
The selection of the most important part of a contract does not have a precise criterion and is at the discretion of the court and can lead to conflicting results. In the relationship between the guarantor and the debtor of a monetary claim, as the contract cannot restrict the rights of third parties, the same law governs the contract between the debtor and the main creditor, namely, the guarantor. The financial aspects of a contract include the conclusion of a contract and relying on third parties and applying the priority of collateral over various creditors. In these cases, the principle of sovereignty of the guarantor is not governed and the model law in accordance with the type of property has developed a conflict resolution rule. If the mortgaged property is tangible property, the law of the place of occurrence of the property will prevail over these aspects. However, if the property is an intangible property, the law of the place of pledge of the guarantor will govern these aspects to protect the rights of third parties. In the context of the Iranian law, all contracts are governed by Article 968 of the Iranian Civil Code and Article 27 of the International Commercial Arbitration Law of Iran. These two codes do not distinguish between the contractual and property aspects of a security agreement. This study suggests that in the Iranian law, the model law approach should also be implemented to determine the rules of conflict of law so that the applicable law on security agreement can be ascertained.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
41
59
https://jcl.ut.ac.ir/article_82748_128cd9ec7ec8bd06eaed589c642c4c9b.pdf
dx.doi.org/10.22059/jcl.2020.309516.634066
A Comparative Study of Protection of Privately Owned Historic Buildings in the England and Iran Legal System; From Permission to Objection
Foroogh
Heydari Shooli
Ph.D. Student in Public Law at Islamic Azad University Science and Research Branch, Tehran, Iran
author
Mohammad
Jalali
Assistant Professor of Public Law, Shahid Beheshti University Tehran, Iran
author
text
article
2021
per
In the UK, the immovable cultural heritage is divided into 5 categories: listed buildings, scheduled monuments, registered battlefields, registered parks & gardens, protected wreck sites. Iranian regulatory system despite the identification of the system of cataloging and division of cultural heritage into movable and immovable heritage, has not initiated cataloging immovable heritage. System of immovable heritage classification, not only specialized English heritage protection but also this act caused the establishment of numerous governmental and non-governmental public institutions and NGOs in the subject of cultural heritage protection. Moreover in the UK, the Historical England Institution which is a non-governmental public institution, publishes documents entitled "Protection Principles, Policies and Guidelines" that these principles have a high place in administrative procedures and must be observed by all Regulatory and decision-making institutions in the field of protection of the historical environment and also all relevant and interested individuals in the field of cultural heritage.
Protective statutes of historical buildings restrict the ownership of owners of these buildings. This article studies the legal system of protection of immovable cultural heritages in light of licensing in a comparative study of England, as a model, and Iran. It should be noted that English system of protection, which is constantly modified, has many guiding principles and documents, beside its effective administrative system. These principles have a higher position rather than positive statutes.
This article tries to answer to this question: 1. what are the main effects of process of licensing on ownership right of owners? To answer this question, these questions should be answered: what is the importance process of licensing? Which authority is responsible for it? Which principles guilds it? How it can be protested and according to which principles? This article tries to answer to these questions in a comparative study of England, as a model, and Iran in a descriptive-analytical way.
Legal system of protection of cultural heritages in England, by distinguishing between different kinds of immovable cultural heritages, regarded historical buildings as an example of immovable cultural heritages and has established a specific system to protect them.
Empowerment of local authorities to decide on permissions, from one side, and recognition of protest to these decisions through reconsideration of case by central government in framework of administrative proceedings, from other side, are main characteristics of English model of protection of cultural heritages. But, In Iran, lack of detailed categorizing of cultural heritages has led to Non-specialized system of protection. Actually, Iranian laws have used the phrases of “monuments, buildings, places and immovable properties”, which are too general.
Some of advantages of English system of protection are “Decentralization” of licensing process, well ordered process of protest, specialized and valid reconsideration of decisions, and the importance of assessment of interests and principle of proportionality in balancing of interests of owners and cultural heritages. These characteristics have made this system of protection more efficient and defensible rather than Iranian one.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
61
82
https://jcl.ut.ac.ir/article_82749_b75720aa77b23d6a800782b3c084f2da.pdf
dx.doi.org/10.22059/jcl.2021.323512.634193
The Relationship between Wilāyah (Guardianship) and Political Representation; a Comparative Study
Ahmad
Deylami
Associate Prof. Department of Private and Islamic Law, Faculty of Law, University of Qom, Qom, Iran
author
Adel
Sheibani
Ph.D. Student in Public Law, Department of Public Law, Faculty of Law, University of Qom, Qom, Iran
author
text
article
2021
per
The establishment of modern government institutions in the context of jurisprudential concepts in the Constitution of the Islamic Republic of Iran has raised questions about the nature and effects of some of them. Among these, the nature of “Wilāyah”(Guardianship), which has long been discussed in jurisprudence; in recent decades, the following two theories of “selection” or “appointment” have emerged. The question of the nature of the relationship between government and people in this theory is one of the most important questions to be asked. Therefore, examining the relationship between “province” and “political representation” is the main issue and purpose of this article. This will be done by analytical, descriptive and comparative methods. The findings of this study show that “Wilāyah”(Guardianship), and “political representation” have undergone different developments and are rooted in the history and principles of inequality; And therefore, from a theological and jurisprudential point of view, they have obvious differences in different aspects; But in the system of subject law, and the Constitution of the Islamic Republic of Iran, in terms of reliance on the public will and the rule of law, have major similarities; In this way, the institution of “Wilāyah”(Guardianship), in the constitution can be considered as a special form of committed political representation and focused on moral life.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
83
103
https://jcl.ut.ac.ir/article_82750_75f3ed491779f219c4bf86af2c3ee0ff.pdf
dx.doi.org/10.22059/jcl.2021.302982.634007
The criteria for calculation of delay penalty applicable to foreign currencies in international commercial instruments with attention to the Iranian international commercial arbitration practice
Oveis
Rezvanian
Assistant Professor of International Law, Graduate Institute of Management and Planning Studies, Tehran, Iran
author
Mohammad Reza
Shekari Ashkezari
MA. In Private Law, University of Tehran, Tehran, Iran
author
text
article
2021
per
The matter of the penalty for late payment has a long history under Iranian law. After all changes, the legislator, by virtue of Article 522 of Iran Civil Procedure Code (December 2000) has allowed for the penalty on the delayed payment of debts in the currency that is commonly used in Iran (namely IRR). However, the matter of legitimacy of the penalty for delayed payment on foreign currencies is still an open question.The current research project principally aims to examine the legitimacy and legality of delayed payment penalty, regardless of the type of currency, by reviewing the Iran international arbitration practice. The next aim is to find a criterion for calculations and determining the rate of delayed payment penalty applicable to foreign currencies. To these aims, after studying and investigating the criteria applied in international commercial documents, usages in international trade, and reviewing the Iranian arbitral awards, some suggestions have been provided. According to such findings, the judge or the arbitrator should, in the first place, attempt to acquire and understand the real intention of the involved parties regarding the matter of delayed payment penalty, and accordingly, render the award based on such an intention. In case that such an acquisition is not possible, the judge or the arbitrator should determine the penalty for foreign currency by considering the type of currency, international practices, and the usages that exist with regards to such a currency.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
105
127
https://jcl.ut.ac.ir/article_80596_00b05483d626454b5a041022c9c7d17a.pdf
dx.doi.org/10.22059/jcl.2021.316622.634134
Comparative study of illegal dismissals in the labour regulations of Iran and Australia
Niloofar
Soleimani
Ph.D. student in Public Law, Department of public Law, Kermanshah Branch, Islamic Azad University, Kermanshah, Iran.
author
Mohammad Javad
Jafari
Assistant Professor, Department of public Law, Kermanshah Branch, Islamic Azad University, Kermanshah, Iran.
author
text
article
2021
per
In all countries’ labour laws, dismissal has been discussed as a topic that related to job security, human dignity and income of labours. Considering significant effect of dismissal on individual and social life of workers, methods of legislation are important to protect the working class. In Iranian literatures of labour law, there is no comprehensive and detailed study reviewing unjustified dismissal. In this study, unfair dismissal’s patterns, formalities, performance guarantees in Australian regulations were studied and compared with Iranian regulations. As Australia is a developed country with well-balanced economy and often has top ratings on lists of ILO, it was selected for this study. In this article by reviewing the relevant laws and documents in a documentary research, descriptive analytical and comparative methods were used. Two applicable labour acts in Iranian and Australian law are labour act 1990 and fair work act 2009.in comparative study of dismissal between two countries’ legal systems, similarities and differences have been observed. In Iranian regulation, illegal dismissal is called unjustified dismissal and in Australian’s is called unfair dismissal. In Iran the principle is that dismissal is unjustified while in Australia there is no principle. In Iran, giving written warnings in case of worker’s negligence and obtaining permission from labours authorities are necessary.in addition, employers must have a justified excuse like inevitable accident or definitive conviction. The legislature of Australia has determined significant unlawful dismissals and provided three criteria to recognize type of dismissals. In Australia there is emphasis on providing in advanced and written notice prior to dismissal. However, this is not a requirement in Iran. Dispute resolution authorities are provided in case of inevitability of disputes in labour relations. In both countries, proceedings are inexpensive, informal and easily available. Dispute settlement bodies hear individual and collective disputes. One of the strengths of Iranian labour law is that immediate dismissal is not allowed however, in Australia, in certain circumstances employer can dismissed the labour immediately without protective formalities of the dismissal. On the other hand, the international labour organization has provided drafts and presented factors in its approvals regarding dismissal. Comparing two countries’ laws, value of regulations depends on the degree of their compatibility with the International Labour Organization’s criteria. These criteria are observed to some degree by both countries. in conclusion, this comparative study indicates that the legislators of both countries can emulate each other's legal systems and improve their regulations to fully comply with ILO`s criteria.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
129
146
https://jcl.ut.ac.ir/article_82751_707294c5e32956753d31e40245dce4c1.pdf
dx.doi.org/10.22059/jcl.2020.301626.633997
A Study on the Nature of Res Judicata With A Comparative Approach
Azadeh
Sadeghi
Ph.D. Student in Private Law, Department of Humanities and social Sciences, Zanjan Branch, Islamic Azad University, Zanjan, Iran
author
Masoud
Alborzi Verki
Assistant Professor, Department of Law, Faculty of Social Sciences, Imam Khomeini International University, Qazvin, Iran
author
text
article
2021
per
In the Latin word, res means “subject matter” and judicata means “adjudged” or “decided”, and together it means “a matter adjudged”. By the Roman rule “res judicata pro veritate accipitur” is meant a matter adjudged is taken as truth. The res judicata doctrine which had been recognized for centuries by Roman jurists and ancient Indian texts, due to its importance, was introduced to the common law and, meanwhile, became an integral part of the law of civil law countries. Res judicata, which is generally based upon a public as well as a private interest, promotes fairness and prevents the law from being abused and, at the same time, avoids lengthy and wasteful proceedings.
In order to assure the public order and interest, there must be an end to litigations. This aim, as well as avoidance of issuing inconsistent judgements or awards, can be achieved through res judicata doctrine, under which parties cannot sue each other again after the final judgment. The doctrine is based upon three principles: no person should be disputed twice for the same reason; there should be an end to litigation and; a judicial decision must be accepted as a correct and valid decision.
Since the purpose of judicial and arbitration proceedings is the decision taken to be definite and enforceable, a judge or arbitrator, by realizing the hidden truth in the case, provides a quick settlement of dispute till respect for judgments or arbitral awards would prevent the plurality of the decisions taken as well as the conflict between them. Although the rendered judgment or award will have the effect of res judicata, as soon as they would become final, the nature of this rule varies in various legal systems.
The Iranian lawyers have considered the doctrine, in relation to judgments and arbitral awards, as circumstantial fact or substantive rule which, at the same time, is based upon social considerations and is related to the public order. In some Iranian legal books, the rule res judicata has been discussed in the section relevant to circumstantial facts, under the general topic of the civil law of evidence, as an absolute circumstantial fact adverse effect of which is not provable. In the Islamic jurisprudence also the rule is based upon legal circumstantial fact.
On the other hand, some Iranian legal writers consider res judicata as a substantive rule which is envisaged on the basis of special social considerations and which, without having any indication of fact or reality, show no established rule. As a result, in spite of the possibility of inconsistency of the judgement or award with reality, re-litigation of the decided case is not possible. It can be said, for the purpose of securing legal, social and economic security, of providing for fair proceedings, of keeping respect for judgements and awards given and bringing about their validity and credibility, of vindication of rights, of settlement of disputes and of preventing from prolonged and time – wasting proceedings, the rule of res judicata, as a social necessity, plays an important role.
In civil law countries, res judicata is also firmly established and the nature of the rule is known as irrefutable legal circumstantial fact. As for the requirements relating to res judicata ,article 1351 of French civil code provides that judgment qualifies as such where the parties, cause of action and claim are identical in both proceeding(triple identity test). In this system, the doctrine, having preclusive and conclusive effects, normally refers to claim rather than issue. The preclusive or negative effect bans the parties from re-litigation of the claim which has been decided in the prior proceedings, while the positive or conclusive effect binds the court by prior decision.in Switzerland the doctrine of res judicata is part of procedural public policy and courts must consider res judicata issues ex officio, while in France the res judicata is not part of public policy. The prevailing view is to separate res judicata from any fact-finding power.
In common law countries, res judicata is considered as part of estoppel, which may cover both claim and issue preclusion. While the cause of action or claim estoppel prevents to sue all claims which arise from the same event, the plea of issue estoppel prevents re-litigation of a particular issue which the prior decision has established on that conclusion. In order to this rule can be established, the earlier judgment must be final, valid, binding and conclusive decision on the merit. Therefore, this decision should be taken in a fair hearing and, according to the doctrine; only the parties to the proceedings can benefit or be bound by it, in subsequent proceedings. In fact, not only the parties to the claim must be the same, but also the subject matter of the claim and cause must be identity.
In both legal systems of England and the United States the nature of the doctrine is similar and is considered as an absolute rule of the law of evidence which may, sometimes, find works similar to that of the rules of substantive law. In this system, the doctrine of res judicata carries a fact-finding value and restricts either party to “move the clock back “during the proceedings. The scope of this rule has been widened with the passage of time and, in fact, the U. S. Supreme Court, in its judgements, has expanded the areas of applicability of the rule.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
147
167
https://jcl.ut.ac.ir/article_82752_47ca52b66bbd0a7f3dcfedd91cfbc241.pdf
dx.doi.org/10.22059/jcl.2021.312251.634092
The civil liability of occupants for injuries incurred by firefighters by comparative study of American law
Mahdiye
Sadeghian
Ph.D. Student in Private Law of University of Isfahan
author
Alireza
Yazdanian
Associate Professor, Faculty of Law, University of Isfahan, Isfahan, Iran
author
Morteza
Tabibi Jebelly
Assistant Professor, Faculty of Law, University of Isfahan, Isfahan, Iran
author
Mohammad Mehdi
Alsharif
Associate Professor, Faculty of Law, University of Isfahan, Isfahan, Iran
author
text
article
2021
per
Investigating the owners' civil liability to injuries of firefighters during rescue attempts has a long history in the United States. In this legal system, the firefighters generally are prohibited from recovering damages from owners and occupants who their negligence has caused a fire or other accidents. This rule commonly is called the fireman's rule. However, Because of lawyers’ criticisms of that rule, it has been rejected or exceptions has restricted it in some states. Unlike the United States, there have been no coherent studies in this area in Iranian law. Therefore, the analysis of the issue is possible only with the generalities of civil liability. The analysis of these generalities shows where the fireman’s injuries are the result of the owner's indirect loss (tasbib), the firefighter will not be entitled to damages for injuries related to the essential reason of his presence at the scene of the accident. But if the injuries are not related to accident required presence of him in the scene, he will be strictly liable of the damages, provided that the firefighter enters land with the permission of the owner. but if he enters land with the legal permission, his liability will be based on fault.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
169
189
https://jcl.ut.ac.ir/article_82753_488f4b517fdea2a91934d5939ef39596.pdf
dx.doi.org/10.22059/jcl.2020.305581.634036
Legal Protection of Fictional Characters in American Law; The object lesson for Iranian Law
Mohammad
Salehi Mazandarani
Associate Professor in Private Law, Faculty of Law, Qom University, Qom, Iran
author
Amid
Mohammadi
Ph.D. Student in Private Law, Faculty of Law, Qom University, Qom, Iran
author
text
article
2021
per
Using fictional characters in the marketing and advertising of goods and services is one of the oldest and the best known form of merchandising with a multi-million dollar annual turnover. The fame and popularity of most fictional characters go far beyond their role in the original works which first featured. In addition, many characters are created outside the context of any particular work and may therefore remain without mechanism and law protection. So, ensuring fair protection to the creators and their owners against unauthorized profit from their creativity is necessary. This paper seeks to answer the question whether it is possible to delineate a position for fictional characters to pursue their independent lives from primary works in legal systems? To answer this question, through a descriptive and analytical approach and by following American law, the authors try to examine the capacity of copyright and trademark systems and the situation which characters enter into the public domain. Undoubtedly, explaining how to protect the fictional characters and their creators, as well as, exploring other aspects of this right, such as identifying infringement criteria and the public domain's contribution to these rights, in addition to assist the jurisprudence, will enhance cultural activities and augment the richness of Iranian legal literature.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
191
218
https://jcl.ut.ac.ir/article_82754_1c1fc59fe64c491a961ab9f2eb4d56b7.pdf
dx.doi.org/10.22059/jcl.2020.300374.633987
A Comparative Study of the UNCLOS Superiority’s Components to the Coastal State’s Domestic Law in the Criminal Jurisdiction on the Maritime Zones
Javad
Salehi
Associate Professor of Payam-e-Noor University, Tehran, Iran
author
text
article
2021
per
Basis for the Coastal State’s ban on criminal jurisdiction over foreign ship affairs in the Exclusive Economic Zone and the Contiguous Zone is subject to the regulations of the Convention on the Law of the Sea. As the observance of the provisions of the Convention on the Law of the Sea is accepted by the Coastal State by its membership, it shall refrain from enforcing or enacting domestic laws contrary to its requirements. Examining the dimensions of this theory by relying on the dispute between the Coastal State and the Flag State in the case of the Enrica Lexie ship in the Contiguous Zone is one of the objectives and topics of this manuscript to answer the related questions. First, what are the requirements of the Convention on the Law of the Sea in relation to the maritime zones and the criminal jurisdiction of the Coastal State in the Contiguous Zone? Second, what confirms the superiority of the requirements of the Convention on the Law of the Sea over the domestic laws of the Coastal State over the Flag State? The research findings show that the area of maritime zones is subject to the provisions of articles 3, (33)2 and 57 of the Convention on the Law of the Sea, and it is not possible to relocate or integrate them into the domestic laws of the Coastal State. The Coastal State’s criminal jurisdiction over incidents in the Contiguous Zone and the involvement of foreign ships is subject to the provisions of articles 33(1)(a), 58(2), 94(7) and 97(1) of the Convention on the Law of the Sea. Therefore, the criminal jurisdiction of the Coastal State in contrast of the Flag State by ignoring the requirements of different maritime zones and the components of criminal jurisdiction of the Coastal States and the Flag State in domestic law is not effective.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
219
238
https://jcl.ut.ac.ir/article_82755_c00f0b208293a67d1462c30baaea720f.pdf
dx.doi.org/10.22059/jcl.2020.300082.633985
Re-thinking of the function and validity of the preambles of the constitutions, with emphasis on the preamble of the constitution of the Islamic Republic of Iran
Hadi
Tahannazif
Assistant Professor Department of Public and International Law, Faculty of Law, Imam Sadiq University, Tehran, Iran
author
Hamed
Nikoonahad
Assistant Professor of Department of Public Law, Faculty of Law, Qom University, Qom, Iran
author
Reza
Bakeshlou
PhD student in Public Law, Imam Sadiq University, Tehran, Iran
author
text
article
2021
per
Today, the use of the preamble for various laws, is common in most of the legal systems of the world. The Iranian Constitutional legislator consider a long preamble in 1979. Paying attention to the content of this preamble itself will indicate the importance of this preamble. However, this preamble has been met with unkindness to this day, and even after four decades since the adoption of the constitution, its effects have been neglected. Some opinions about the legal validity of this preamble have always been an obstacle in the way of legal studies about this preamble. Therefore, it seems necessary to study the preamble of the Constitution and examine its legal value and validity by measuring the teachings of the Constitution. This study would not be comprehensive without regard to the status of constitutional preambles in the teachings of comparative constitution. Therefore, the main question of this research is as follows: What is the function of the preambles of the constitutions in the constitutional system and how is its compliance with the preamble of the constitution of the Islamic Republic of Iran? This issue has been investigated by descriptive-analytical method and Finally, it has been concluded that the preamble of the constitution of Iran determines the correct way of understanding of the constitution and the system of the Islamic Republic of Iran. In other words, the preamble is the container of the constitution and has the “validity of constitution”.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
239
261
https://jcl.ut.ac.ir/article_82756_b0f3e9561081e6805a77aa89ae02be50.pdf
dx.doi.org/10.22059/jcl.2020.308760.634059
Criminal Combating the Counterfeiting of Medical Products in International Instruments and Iranian Law
Mohsen
Eini
Associate professor, Department of Law, Faculty of Social Sciences, Imam Khomeini International University, Qazvin, Iran
author
text
article
2021
per
Counterfeit in medical products, including medicine and medical devices is an illegal and harmful behavior that threatens public health and well-being of citizens. The dangerous consequences of this growing criminal phenomenon raise the question of how the international community has reacted to the phenomenon at the level of international instruments and with what measures has it pursued a criminal combat against it? What is the status of the issue in Iranian law? The findings of this study, which uses a descriptive analytical approach, show that despite the efforts made by the World Health Organization and special structures created to combat this phenomenon, concluding an instrument in its global status has failed. However, the Council of Europe by focusing on public health and separating it from intellectual property, by ratifying the MEDICRIME Convention and developing prevention strategies and by the use of criminal law, protection of victims and international cooperation organized a combat against this phenomenon; and by defining the necessary concepts committed member states to criminalize certain behaviors. The Council also established a criminal combat against counterfeits and similar crimes involving threats to public health by anticipating punishment and some effective, proportionate and dissuasive sanctions, and while building coordination between member states, significantly revolutionized the combat against counterfeits in medical products. Nonetheless, the ratification of a new international instrument could make up for some of its shortcomings. In Iran, different and uncoordinated laws are responsible for the criminal combat against the phenomenon, and incomplete criminalization, such as neglect of medical devices and some related materials necessitates the enactment of a new law dealing with medical and medicinal issues, taking advantage of all strategies in combating against this public health phenomenon.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
263
289
https://jcl.ut.ac.ir/article_82757_2201c182e3010cb2a0622a12fbaabf51.pdf
dx.doi.org/10.22059/jcl.2021.309160.634063
Comparative Study of Territorial Waters and its governing requirements in the Convention on the Legal Status of the Caspian Sea and the Convention on the Law of the Sea
Mostapha
Fazaeli
Associate Professor, International Law Department, Faculty of Law, University of Qom, Qom, Iran
author
Mahdi
Keykhosravi
Ph.D. Student of International Law, Faculty of Law, University of Qom, Qom, Iran
author
text
article
2021
per
Five Coastal states of the Caspian Sea signed the Convention on the Legal Status of the Caspian Sea On August 12, 2018. This Convention has recognized region of the territorial waters in its Article 5. The provisions governing territorial waters has considered in Articles 6, 7, 10, 11 and 13 of the Convention. The purpose of this article is to determine and clarify the rights and obligations of coastal states through a comparative study of territorial waters and its governing requirements in the Convention on the Legal Status of the Caspian Sea and the Convention on the Law of the Sea. With regard to that the present article can determine the coordinates of the action of the Islamic Republic of Iran in the region, the matter of Comparative Study of Territorial Waters in the Convention on the Legal Status of the Caspian Sea and the Convention on the Law of the Sea has located at the center of gravity of this research. The present study is a descriptive-analytical method to answer the question of how are the rights and requirements governing territorial waters in the Convention on the Legal Status of the Caspian Sea in comparison with the Convention on the Law of the Sea? The results of this study show that the Convention on the Legal Status of the Caspian Sea has adopted three approaches in comparison with the Convention on the Law of the Sea. In the first approach, the Convention on the Legal Status of the Caspian Sea has taken initiatives. In the second approach, the Convention has approved the provisions of the Convention on the Law of the Sea and in the third approach, the Convention on the Legal Status of the Caspian Sea, contrary to the Convention on the Law of the Sea, has dealt with legal matters from a position of silence.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
291
311
https://jcl.ut.ac.ir/article_82758_6926474665238567cedab749dbe09f94.pdf
dx.doi.org/10.22059/jcl.2020.304382.634019
Arraignment in Iranian Criminal Law and Judicial Proceeding of European Court of Human Rights (ECHR)
Firouz
Mahmoudi Janaki
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, University of Tehran, Tehran, Iran
author
Aliakbar
Jalilpiran
Ph.D Student in Criminal Law & Criminology, Shahrekord Branch, Islamic Azad University, Shahrekord, Iran
author
text
article
2021
per
The principles and rules of fair trial as a part of procedural law and human rights established for protecting and guaranteeing the substantive rights that are recognized in the international and national laws and documents. This law so called fair proceeding principles is rooted in human dignity and should be protected by the governments. Administrating the justice, the aim of each proceeding, isn't possible without establishing a fair trial in which rights and freedom of accused person and other people involved in proceeding process are respected. Fulfilling the right of questioning of the judicial system from the person based on the presumption of knowing him “moral agent” causes him to be summoned for criminal investigation. This summons requires that the criminal charge be explained to him in a detail and clear, unambiguous and comprehensible language, and not that the charge be stated and that the criminal title and the relevant article be only read to him. Relying on the defenses of the suspect or accused and assessing their credibility and value depends on the fact that he has a good understanding of what he is accused of. In order to prevent the nature of the summons or detention from changing into an illegal and unjustified act, the charge must be clearly and completely arraigned to him as soon as possible, by stating the reason for his summons or arrest, and his judicial rights must be reminded to him. In the meantime, if the accused is not aware of the language of the summoning authorities, he has the right to use a free interpreter to defend himself in all respects.
Fulfilling arraignment and its elements and characteristics on the presumption of knowing the suspect or accused “moral agent” and also on the principle of innocence, as well as the important effects and consequences of guaranteeing this right in order to achieve a fair trial, has caused international human beings, both general and specific, as well as in domestic laws of countries to be specified and emphasized and their implementation to be ensured by the judicial systems of governments. This article examines the arraignment in the judicial proceeding of the European Court of Human Rights by comparing it with its place in Iranian criminal procedure. The main question of this study is “how was guaranteed the right of arraignment as one of the essential rights of defendant by European Court of Human Rights and Criminal Procedure Act of Iran?
The European Convention on Human Rights, as a continental treaty, recognizes arraignment as one of the most important principles of criminal procedure and has obliged member governments to fully implement it. The European Court of Human Rights, as the judicial body of this convention, in its procedure, has acted with great obsession on the most detailed rights of litigants, especially arraigning the accused, and has precise and thought-provoking rulings, as far as it can be claimed that all conceivable rights for litigants in the litigation process, is carefully and strictly considered by the Court. In this regard, the full attention of the court to the principle of arraigning the accused in its judicial procedures, including attention to the concept and nature of the arraignment, its promptness and completeness, as well as attention to the accused in terms of familiarity with the language of the accusation and consequently getting a free translator familiar with legal issues to inform arraign who are unfamiliar with the language of the accusation in charge, has resulted in a fair trial, especially from the outset, to be under the strict control of a district judicial body whose order are of high executive guarantee. The court, with full seriousness in this case, has tried to guarantee this important principle of the trial as much as possible so that the most important right of the accused is not violated. On the other hand, in the Iranian criminal law system, the Code of Criminal Procedure, in order to protect the defense rights of the accused, has identified, emphasized and guaranteed the principles of the trial, including the arraignment. However, this right has not been fully identified and defined in such a way that the detailed accusation has been replaced by explicit arraignment and the right to have a “free” translator has not been provided for the accused. Having a translator free of charge is a guarantee for a fuller arraignment, not merely identifying the right to have a translator. An accused who is unable to pay for the translator may be practically deprived of this right. It seems that the drafters of this Act did not pay enough attention to the close connection between the right to have a translator and the right to be arraigned, otherwise all the stages of the investigation, including the investigation of the officers and the prosecutor’s office and the court, would not be neglected. Paying attention to the procedures of international criminal institutions, including the above-mentioned Court, and in particular the principles on the basis of which the Court obliges member states to compensate damages to defendants or convicts and considers the actions of those countries in violation of the Convention to understand the importance of this right in all procedures are required. It seems that in addition to reforming criminal laws and regulations, basic education of these important rights and also further guaranteeing this right during the trial, including through, can be very effective in eliminating the shortcomings in Iranian criminal law.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
313
329
https://jcl.ut.ac.ir/article_82759_5293c8dc6d50bc428eaff182f5a8095d.pdf
dx.doi.org/10.22059/jcl.2021.314125.634110
Assessing Nuclear Liability Systems of Japan and the United States of America
Seyed Mustafa
Meshkat
Ph.D. in Criminal Law and Criminology at the Islamic Azad University of Qeshm
author
text
article
2021
per
One of the nightmares of humanity in the current century is an occurrence of a nuclear incident. Nuclear incidents depending on the type of nuclear facility and material could have devastating damages. Following to nature and power of nuclear energy, any nuclear incident could impact a large area for a long-term period. Nuclear damages have a variety ranges from environmental pollution to the death of a large group of people. To confront it, initially, we should prevent to occur of these hazardous incidents and then fully prepare to deal with victims of nuclear incidents. In this way, a rapid, timely, and efficient system of compensation is vital. Regarding the scope of nuclear damages, it is necessary to draw a compatible liability model of compensation. In this way, nuclear liability was created in the early 1960s. This sort of liability is a new legal topic that attempts to create a proper system to compensate such victims. However, the international nuclear liability model has been changed several times to date. The occurrence of nuclear incidents especially the Chernobyl disaster in 1986 led to a revolution in the civil liability system for nuclear damages. This incident has expressed shortcomings and gaps in compensation when many people have entitled to a nuclear incident and need to prompt and sufficient compensation. This issue does not only include international law but also encompasses national laws. Thus, following nuclear incidents, national legislations have also been updated. Among them are the United States of America and Japan. These legal systems have experienced two severe nuclear incidents. The Three Mile Island and Fukushima Daiichi incidents, which occurred in the United States and Japan in 1979 and 2011 respectively, are among the most important nuclear events so far. Following the Three Mile Island and Fukushima Daiichi incidents, Either Japan and the United States of America have updated the nuclear liability systems. Therefore, the purpose was to develop the scope of liability of nuclear operators and to establish public funds to rapidly provide compensation to victims of nuclear incidents. Japan and the United States of America are considered two roughly appropriate civil liability for nuclear damages that supportive measures of victims of nuclear incidents are taken into account. Even in some aspects, these legal systems act better compare to international law. For instance, the legislature of Japan has established the nuclear liability model that does not have an upper limit. This issue causes to lift any limitation on the compensation of victims of nuclear incidents. The United States of America has also taken proper measures to compensate victims of nuclear incidents. Among the measures is to provide two tiers of compensation. The aim of this compensation scheme is to take assurance of an efficient compensation of victims resulting from a nuclear incident. As earlier mentioned, the occurrence of nuclear incidents could clearly demonstrate shortcomings and gaps in a legal regime of nuclear compensation. It is better to say, one of the most important effects of the tangible experience of nuclear incidents and their compensations is to evaluate and test the civil liability system resulting from nuclear incidents. In other words, the occurrence of such incidents can better answer the question of whether the existing liability system has been compatible with the severity of such incidents and damages. It is clear that such analyzes and assessments could lead to the identification of a framework for a civil liability system compatible with nuclear damages in countries such as Iran, which are deprived of such systems. Such countries that have not yet experienced a nuclear incident have the opportunity to establish a compensation model with a minimum of shortcomings and gaps. However, this paper attempts to explore the legislative systems of Japan and the Federal of the United States of America and along with that to determine and evaluate the impact of the Three Mile Island and Fukushima Daiichi incidents on the nuclear civil liability system by relying on a descriptive-analytical study method in order to finally establish dimensions of the liability system compatible with the type and amount of nuclear damage (huge damage).
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
331
349
https://jcl.ut.ac.ir/article_82760_3b73684184f01dd2569b2e46e6107b3a.pdf
dx.doi.org/10.22059/jcl.2021.319319.634154
Comparative study of Competition of the Director of a Company with the Company through Conducting Transactions Similar to the Company's Transactions in English, United States and Iranian law
Issa
Moghaddam
Assistant Professor of Private Law, Department of law, University of guilan, Guilan Rasht, Iran.
author
text
article
2021
per
The company is managed by its directors. The issue that arises is that is the director allowed to conduct a Transaction similar to the subject of the company's or not? In this regard, there are similarities and differences between the laws of the English and the United States and Iran. In English law, one of the things that contradicts the director’s duty of loyalty to the company and its duty to avoid conflicts of interest with the company, is the competition of the director with the company through Conducting transactions Similar to the Company's Transactions. According to the absolute view accepted in this country, such a thing is forbidden. In US law, the director also has a loyalty duty to the company, but has a relative approach in this regard. Under U.S. law, the director is permitted to engage in activities similar to that of the company; unless done with bad faith. According to the law of this country, reliance on this duty should be done only to the extent necessary to protect the interests of the company. The advantage of this view is that it considers the interests of the company and the director and economic interests, but it is not suitable for preventing director from abuse. In Iranian law, the relationship between the director and the company is agency and the director must consider the interests of the company. Under Iranian law, it is not prohibited for a company to engage in any activity similar to the subject of company, unless it is detrimental to the company. Ofcourse, a loss is not a condition for the competition to be realized, but as soon as this is typically detrimental to the company.
Another issue that is raised in this regard is the sanction of the competition of the director with the company. In this regard, the most important concern is that the sanction is designed in such a way In addition to the aspect of compensation from the company, it also has a suitable deterrent aspect. Because one of the main approaches in the law of companies in the issue of sanction is the deterrent aspect. In English and American law, it’s sanction is: first, the director's duty to return all the benefits of the competition to the company, because from the point of view of these two countries, these interests belong to the company. The second sanction is the director's responsibility to compensate the company. In Iranian law, the main sanction is the director's responsibility to compensate the company. In some exceptional cases, there is also criminal sanction for it. These are cases in which the director has used the company's property and credit to compete with the company or has exercised its authority to compete.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
351
368
https://jcl.ut.ac.ir/article_82761_02a875eb5f69eeedcfc97397dcb78075.pdf
dx.doi.org/10.22059/jcl.2021.310679.634078
A Comparative Study of the Purpose of Awarding Damages for Breach of Contract
Esmail
Nematollahi
Associate Professor, Faculty of Law, Qom University, Qom, Iran
author
text
article
2021
per
Awarding damages is one of the usual remedies for breach of contract. Theoretically, awarding damages may seek one of the two purposes: placing the injured party in the actual position before the conclusion of contract or in the hypothetical position after enforcement of the contract. The first purpose is referred to as protecting negative interest and the second as positive one. They are also called as reliance interest and expectation interest, respectively. Practically, there are various approaches regarding which of them should be seek by awarding damages in legal systems. According an approach, which could be attributed to Roman-Germanic and Common Law systems and International and European documents, awarding damages seeks to protect the injured party’s positive or expectation interest, where compensating lost gain is one of the most elements. As regards Iranian legal system, paying attention to the fact that lost gains could not be recovered, it may be thought that it seek to protect negative or reliance interest. Yet, in numerous situations, the purpose of damages is to protect the injured party’s positive or expectation interest. The article is a scientific research paper, prepared in an analytic method.
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
369
396
https://jcl.ut.ac.ir/article_82762_2eefe1d87b53ec9c4795ef5ea65918fc.pdf
dx.doi.org/10.22059/jcl.2020.306369.634042
English Abstracts
text
article
2021
per
Comparative Law Review
University of Tehran
1735-496X
12
v.
1
no.
2021
1
38
https://jcl.ut.ac.ir/article_82763_b9b49881446cb8e0df3ade52c81cfc49.pdf
dx.doi.org/10.22059/jcl.2021.82763