فصلنامه مطالعات حقوق خصوصی
سال سی و هفتم شماره 4 (زمستان 1386)

Scientific progress and development is one of the significant issues and hot debates of the Iranian government. There are some researches and seminars carried out and held regarding influential factors of scientific progress. Unfortunately there is no proper place for legal and institutional factors but exceptionally and partially (intellectual property rights factor).My idea is that scientific progress without building a proper legal and institutional environment is impossible or unsustainable. So, in this essay, I tended to introduce some key factors of the mentioned environment by comparative an inductive methods. Those factors are: making law on research, protection of academic freedom, protection of freedom of thought and freedom of information, protection of intellectual properties, promotion of data sharing and regulation making on scientific parks and complexes and scientific associations.

Because of its very dynamic nature and its close ties with global commerce, intellectual property law is one of the liveliest areas of law. The significant of this branch of law is manifested in the debate which is going on between developed and developing countries in terms of the scope of the protection of intellectual property rights. On the one hand, the developed country argue the stronger protection of intellectual property rights increases and facilitates the transfer of technology to the developing countries but, on the other hand, developing countries consider intellectual property rights as a means for development not an end by itself and as such are in favor some moderation in the scope and length of intellectual property rights. Moreover, in addition to the concept of development, the emergence and expansion of internet has also caused new developments in the field of intellectual property rights. These developments have posed new challenges which shall be discussed in this paper.

The international responsibility of state, constitute one of the most important questions in the field of the international law. With adoption of draft article about state responsibility by ILC (2001), the subject of human rights, remain. In the other word, is this draft, include any field of state responsibility and any conduct arising from private actors, or the subject of human rights remind under other principles. This article discuss above question.

Whenever there is a debt on someone, the debtor can pay back his debt and ask the creditor for a clearance. Should the creditor refuse to accept the debt, this could be construed as an abuse and harm to the debtor who can turn to the court or any other competent authority. The court or the other competent authority could accept the debt on behalf of the creditor. In case the debtor is not able to reach a court or a competent authority, he/she should ascertain and set aside the debt and is on longer responsible to guard the debt should it perish without his/her fault. Law shall not assign any responsibility to debtor to look after the property allocated to the debt, otherwise this allocation will not make sense. The treatment of any property derived from this debt which is allocated to the creditor but has not been handed over to him/her could a topic for debate.

La révision de la constitution consiste à corriger le texte constitutionnel par suppression, adjonction ou modification. Dans la plupart des cas, les constitutions contiennent des règles relatives à leurs propres modifications. Cet élément constitutif est en même temps leur partie matérielle, c’est-à-dire qui concerne la production des normes constitutionnelles. Il s’agit de savoir à qui appartient et comment sexerce le pouvoir constituant chargé de modifier la constitution. La révision des constitutions qui suppose l’usage du pouvoir constituant entraîne la reconnaissance de ce pouvoir constituant à certains pouvoirs constitués. Le pouvoir de révision est un pouvoir qui s’exerce dans le cadre prévu par les constitutions. Ce cadre est appelé la procédure de révision constitutionnelle. Il existe selon les Etats une grande variété de procédures de révision des constitutions rigides. Si les constitutions souples se révisent aisément, selon la procédure d’adoption de la loi ordinaire, les constitutions rigides utilisent parfois une procédure en cinq phases: l’initiative, la décision de réviser, l’élaboration, l’approbation et la promulgation de la loi de révision constitutionnelle.Pour qu’une constitution soit à l’abri des mouvements, elle doit être ni trop rigide, ni trop souple.

The Convention on the Prevention and Punishment of the crime of Genocide was adopted by the UN General Assembly in December 1948. In former Yugoslavia and Rwanda occurred many heinous crimes and majority ruling powers tried to destroy Molem and totsi minority groups. The UN Security Council established the International Criminal Tribunal for The former Yugoslavia (ICTY) and Rwanda (ICTR). The UN Security Council considers that punishing perpetrators is a step to restore international peace and security. I try to show developments of contemporary international law on the protection of minorities by analyzing the practice of Ad hoc courts in finding actus reus and mens rea in particular.

Human rights is not a series of enacted law that great revolution of France or universal declaration of human rights could be ascribed as its starting point, but it’s correct to ascribe its antiquity as primal as the life of human beings.Human rights are not the result of a specific religion, cumulative decision or revolution but are a chain of natural absolute rights that is universal in all times and places.So, the role of religions and revolutions is not structuralization of human rights and innate dignity of human, but studying their roles in the field of human rights is to study the instruments that exhibit to support, recognize or help to recognize the human rights. Because of its special system law, Islam religion has gained a specific, complex and particular in the studies about human rights.It appears that in Islam religion two kinds of dignity can be found: the first one, a universal dignity that is not conditional by person’s religion and the second one, a perquisite dignity that is conditional by person’s belief. In this article we try to study about the place of human rights and the instruments to recognize the innate dignity of human in the religion of Islam and so we try to study about the place of perquisite dignity of human and its differences with innate dignity.

Il sagit de déterminer la nature et les effets de la preuve judiciaire par rapport la logique formelle. A Cette fin nous lavons comparé cette notion juridique arec la conception de signe en logique et il est démontrer que la définition de cette dernière comprend également la preuve judiciaire, bien que celle- ci se réserve certaines spécificités. Nous avons essayé de réviser les différentes sortes de signification en logique formelle et de déplacer la preuve judiciaire (donc le signe) servant à prouver un droit personnel (donc la chose signifiée), au sein de cette discussion. Il est constaté quen matière de preuve judiciaire, on est confronté à une sorte signification conventionnelle, bien que les deux autres significations se réservent certaines places en matière judiciaire. Nous en avons tire les conséquences pour déterminer le rôle du juge et des parties dans un procès civil en matière de preuve.

Money laundering is a serious threat to financial system of all countries and it leads to destruction of the country's sovereignty and character. This has been widely recognized at the international level. Money laundering as a crime only attracted interest in the 1980s, essentially within a drug trafficking context.

This article discusses the cession of contract. After presenting the definition of cession of contract, this base on contractual position and has an independent identity. By dividing the cession of contract in to executive and judiciary and contractual, their conditions are investigated. Finally the effects of cession of contract discussed.

One of the subjects which has recently been in the centre of attention of lawyers and supporters of women's rights is the issue of "Deeye" (financial remedy) written in the "Islamic Penal Code".According to this Code, "Deeye Nafs" for a woman is half of the "Deeye Nafs" for a man. For example, when a man murders a woman, the killed woman's family has to pay half of the man's "Deeye Nafs" to the killer before he is been executed. Apart from the protest by some supporters of women's rights, some lawyers, jurists and experts in Islamic law, have criticized the said rule, saying that this rule is not consistent with Sharia (Islamic Law).On the other hand, some lawyers and experts in Islamic law seriously support this rule, believing that it is perfectly consistent with Islamic law. They also opposite to any change and amendment in this respect. This article, however, while has examined these two part of views and their reasons, tries to present a solution for prevailing this problem.

The right to sound environment goes even beyond the environmental law. The advocates of human right as one of the most important rights one should enjoy. According to this approach this right is extended to cover the future generations. The right to sound environment reflects some superior values as right to life and is closely related to sustainable development. The relationship between human rights environment has been discussed on human orientated and environment orientated approaches. According to human orientated approach, because the state of environment has direct impact on the quality of life for human beings, it has to be protected against abuse and pollution. This approach focuses on the welfare and health of each and every human being. Under an environmental approazch, the right of human beings to a sound environment originates from a broad interpretation of environment wich entitles each and every individual to exercise this right vis – a – vis any other person or organization or governments. In principle, there are three views on the rights to the environment. One view believes that there is no right to environment, there is no human right. Another view considers this right controversial and the third view believes that the right to environment is derived from the right other rights such a right to life, the right to health and the right to information. The practice of states, including, the EU countries and North American countries inclined to a human right approach to environment.

Since in Imamiyeh jurisprudence and civil law, Heyazat Mobahat have been considered as the causes of possession, so that in this article, a brief report is presented on causes of possession, different means to gain possession, and also topics such as unity or diversity of causativeness of Ehya and Heyazat, terms of Heyazat and Ehya and the evidences of those who believe in causativeness of Heyazat in land possession and its assessment, permission of government in Heyzat and preparation of uncultivated land in the view of the believers in Heyzat of uncultivated lands, Mobahat, commonalities and its most important types are discussed. Causativeness, limit of ownership, base and criteria of establishment of possession in the light of "Heyazat" are the preoccupations of this article.

One of the matrimonia, and in the meantime controversial issues is the legal outcome of a wife action when she waives her claim to her marriage porion or transfers it as a gift to her husband. Generally speaking, under shariat, marriage is considered a religious duty. It is also regarded as an ethical and social contract. Seen in this way, its consequences are not confined to the spouses matrimonial relationship inter, but, as a legal rule, it transcends the ambit of the free will or the consent principle and as such, it is treated as a distinct legal institution whereby order can be assured.One of the wifes matrimonial rights is dowry or marriage portion. Upon agreement to its value or amount and, once the marriage contract is executed, the entitlement to it will be effectuated as follows: in cases where the marriage portion is choses in possession, then upon marriage it becomes the wife property; however, in cases where it is choses in action then upon marriage wife will be the creditor and accordingly will be entitled to claim it immediately. Yet, according to Article 1092 of IRI Code if the husband divorces his wife before the consummation of marriage, the wife will be entirled to half of the marriage portion he has the right to demand the return of the surplus, in original, in the equivalent, or in value. In comparing Articles 1092 and 1082 of the IRI Civil Code one may come to the conclusion that of that if divorce occurs before the consummation of marriage the wife will lose half of her portion marriage to her husband. However, during the course of such shifts in ownership, the wife may either waives her right of claim to her marriage portion or transfer it to the husband as a gift. Under these circumstances, as many authoriries have concluded, the wifes legal position will change from an owner or a creditor into a debtor. The main object of this essay is to examine such lines of approach and offer some feasible propositions.

Why we punish? This is an old question for philosophers and scientists of criminal law. Classical answer to this question is retributirism or utilitarianism. Because these justifications dont enough for justify of punishment, the new justifications trend to compromise them together.In this article, the writer will research strong retributivism and utilitarianism and after reveal weak points of them, and finally analyses some of important compromising theories in criminal law.