مجله حقوق خصوصی
پیاپی 18 (بهار و تابستان 1390)

Intentional assignment of entitlements (as opposed to debts) is a legal institution which is based on the possibility of separation of entitlements from the personality of creditor and of its assignment to a third party. In the voluntary assignment of entitlements, the creditors may assign their rights to a third party. After long discussions, voluntary assignment of rights has been accepted in the French law as a sale contract. However, it is achievable by other contracts such as gift contract. Fortunately, in the Iranian law, which is rooted in the Islamic rules, there is no problem in acceptance the legal institution of voluntary assignment of rights. It is necessary to say that, voluntary assignment of right in the Iranian law is possible in many ways including specific contracts, and non-specific contracts and some other special ways such as assignment of commercial papers. In spite of jurisprudential idea, assignment of right by sale contract is not accepted.

According to the Islamic Criminal Law, consent from the patient or their legal guardian is necessary for any clinical or surgical operation. Currently, hospitals get consent from the husband for clinical operations of his wife and if they could not get the consent they refuse to do the operation. In this paper, legal and religious basis for this type of consent (husband for wife) is discussed using comparative legal methodology. When the wife is competent, no consent is necessary except for the patient herself. The husband’s consent seems to be necessary when the clinical or surgical operation interferes with the family interests. In this situation also, the husband’s consent should be obtained unless the operation is crucial for the wife. Thus, the husband’s consent is limited to non-therapeutic operations.

In the last years of the twentieth century and the early years of the twenty first century, globalization with all its aspects and effects, has laid a ground which has originated and/or deepened structural weaknesses of states, their inability to answer the citizens’ demands and functional crisis of states. Formation of international institutions, international non-governmental organizations (NGO) and new social movements has led to the states’ inability to make ground decisions regardless of the outside ambience as past. Following this trend, states has inevitably revised their role, status and function so as to face the increasing demand of their citizens and maximum utilization of globalization opportunity. As a result of this revision and minimizing the states’ functions, states gradually has moved away from traditional sources of power such as land, armed forces and production dependent on land and turn to intangible sources of power like professional workforce, capital, information and technology and entrepreneurship. This so called metamorphosis results in the formation of virtual states in different corners of this world. Virtual states aim at pioneering the third wave of human’s civilization by recognizing new sources for power and wealth production and distance from worshiping a land’s talisman and providing a perspective of peace. This article investigates the major aspects of new virtual states and conditions and situations provided by globalization which has provided an apt ground to form virtual states.

The protest of a third party generally involves three categories of actions: Tierce Opposition; Third Party's Declaration; and Third Person's Protest such as mentioned in fifth section of Civil Judgment Enforcement Act. Therefore, there are some differences between Third Party's Opposition to a judgment and Third Person's Protest to enforcement proceedings in regard of concept, sphere and the proclaimed rights; the first one based on Principle of Relativeness of Judgment and the second one settled on Defense Right and the principle derived from it. In fact, Third Person's Protest, regardless of judgment, merely about the seizing of a property which is not subject of a judgment directly would be proposed. This action depended to its proof has been divided to of Third Party's Declaration and Third Person's Protest. Although, we can find similarities between these two actions in party initiative, court's decision, appeal but, in respect of enforcement proceedings on a specific property there are deep distinctions between them in competence of court, formalities, incident actions and place or time of proof.

Performance of contract in many situations is not possible without cooperation from the side of the obligee, and he/she has a duty to do all acts which are necessary to make enable the obligor for contract performance. For example, the execution of medical contract depends on patient’s cooperation. All items of such duty are not capable to cite in different kinds of contracts and in some cases they depend on conditions of contract and surrounding circumstances. The important basis of cooperation duty is good faith principle, but implied terms and customs are other essentials of this duty. In Iranian legal literature, duty to cooperate is not considered neither by legislator, nor authors and jurisprudence, but in some legal systems and international instruments it is related to contracts such as UPICC, PECL, DCFR and OHADA where the principles are confirmed and the remedies of breach of such duty are determined. We studied in this article the concept, basis, scope and effects of cooperation duty in this article by carrying out comparative analyses.

According to the articles 169 to 179 of the Civil Judgment Enforcement Law, the enforcement of the foreign judgment in the Iranian law is based on the reciprocal act. But extension of international relations in the world today, above all in the commercial domain, requires that enforcement of foreign judgment be accepted after obtaining its correctness conditions based on res judicata. Therefore, it is necessary that the fundamental conditions of correctness of foreign judgment for recognition and enforcement of the foreign judgment be contentious proceeding in the Iranian court and the judgment debtor to have right to produce his objection in the court. These conditions include: international jurisdiction of the court which gives the judgment, non-contradiction of the foreign judgment against Iranian public policy, due process of law, non-obtaining the judgment by the fraud and the jurisdiction enforced law at the litigation.

Among three branches of government, judiciary has the most important role in protecting of citizens’ rights; therefore upgrade and improvement of this branch is vital to promote human rights. If changes consider international standards and local concerns at the same time, be efficient, if not will be failed. Good governance is an international model has localization capability which its default is correct process leads to correct results. Current article tries to recognize indexes of general elements of good governance compatible to judicial procedures; then compares Iran’s judiciary system and indexes, especially in term of procedural rules; moreover suggests a frame for judicial reforms.