مجله مطالعات حقوق تطبیقی
سال ششم شماره 2 (پیاپی 12، پاییز و زمستان 1394)

On December 11, 2008, the United Nations adopted the “Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea”, more colloquially known as the “Rotterdam Rules” for the city which hosted the convention’s signing ceremony on September 23, 2009. Rotterdam Convention approved the “Presumption of Responsibility” as the basis of carrier’s responsibility and listed the exemption's cases and the carrier in order to get though the liability must determine the cause of damage, events and the losses happened to the goods. Rotterdam Rules in spite of avoiding the excesses of Hamburg Rules retained its strength points and has tried to eliminate the defects of Hague Rules. Therefore, it can be said that this convention has caused a balanced approach among the benefits of shippers and carriers for providing the general fortuity.

In the study of the subjects of constitutional law, analysis of position of the public authorities in the light of their jurisdiction is the most important approach regarding the evaluation of their power within the arena of political society. When an authority is known as a powerful authority among his other counterparts, the significance for the study of the position of this authority becomes more important. In a comparative view in relation to his other counterparts, the President of Parliament of Iran has broader and more particular jurisdiction within Iran’s legal system. The study of different aspects regarding president’s jurisdiction according to the inter-branch function of this public authority with a comparative view to other legal systems as the purpose of this research, leads us to this important point that the president of the Parliament has a special position hereof. In this article we have shed light on the question that how is the position of the President of Parliament analyzed as the President of Legislative Power; In other words, with analysis and comparison of institutional jurisdiction of the presidents, the most basic function of the President of Parliament is to administer parliament sessions, but in some cases this position is higher than administration of the sessions. The innovation of the present research lies in the comparative analysis and study of the President’s jurisdiction, which strengthens the originality of the present work. In this article, we have explained the institutional jurisdiction of the President of the Parliament within legal systems of Iran, Britain and France, and we have reached to this point that in comparison with other Presidents of the legal systems studied, he has a different position and has broader jurisdiction in the parliament than his counterparts.

If someone committed a crime while insane, in different legal systems, it is accepted that deal with him should be varied than people with mental health and in the case of the existence of other circumstances, have been recognized without criminal responsibility. This is commonly where the wrongdoer suffers from complete mental disorder, not partial mental disorder. The Islamic Punishment Code 1370, do not recognize any differences between the mentioned abnormalities and the Islamic Punishment code 1392, although somehow take into consideration the issue, in determining response to those experiencing the partial mental disorder is silent; that is one of the defect of the aforementioned code. Also the spotlight of the recent Code is removing criminal liability as a result of insanity; and how finding insanity, its terms and appropriate responses for insane wrongdoers are not taken into consideration properly. In contrast, in English legal system. ...

A fair hearing in the courts requires the principles of procedure. Because the arbitration is considered as private judgment, thus in arbitration hearing regarding to non-ceremonial proceedings, arbitrator or arbitration panel are bound to respect the principles of civil procedure in arbitration hearing. Equal treatment with parties of arbitration and Adversarial procedure are principles that arbitrator or arbitration panel obliged to satisfy them in proceeding whit action arbitration parties. Independence and impartiality are elements of Equal treatment and proper notice and give a full opportunity to presentation case are elements of adversarial procedure in Arbitration hearing that arbitrator or arbitration panel are bound to respect them in proceeding between action arbitration parties. Disclosure Obligation, Challenge to arbitrators competence, application for setting aside and refuse to recognition and enforcement of award are tools to satisfy compliance of principles of procedural civil in Arbitration hearing. In this paper, ways of satisfying principles of procedure and its sanctions has been considered.

THE NGOs one of the most important -state actors. For this to compile useful organizations the state regulations regarding established and codified their activity. This study sought to explain the issue and established barter their activities in two Iranian legal system and France. In Iranian legal system regulations in the founded and barter their activity there is in comparison with France legal system a bit tough. supervision previous in establishment time and supervision next previous after the foundation and all activities are subjects in this study compared to that between the two legal system under study. One of the most prominent works of the identified legal personality for this organization are the case. The new penal trial Iran inspired by the French Penal procedure law a step forward in support of the presence of the barter their punishment in the process. What is important is the codification of legal about cathedral establishment of this organization are derived from the experience of the other legal system legal system including the French so that through this the presence and activities of these organizations in the fields of different facilitation.

The cooperative nature of the economy,according to its principles and values,is so that it is incompatible with a melancholy cast,but what would be wrong to assume,more than anything else,is a non-profit-oriented philosophy is often confused with nonprofit approach.we believe that the more cooperation goes under the trade and economic reasoning; it will better realize its own goals which are member's promotion. International Cooperative Alliance's approach also suggests that,if these companies in the field of economic competition and services offering, get out of the traditional deviations and apply commercial activities, it shall not be called "perversion of capitalism",if the cooperatives in this way has no purpose except to the extent necessary to meet the needs of its members and does not go forward that exit from its own nature and foundations to be a merchant and investment-oriented company.

The contract looks like the natural law. This means the negation of the principle of the autonomy of the will and the will of Legislator as a basis for the validity of contractual content would be rejected. For, the foundation of creation and validity of natural law would not the will, but natural justice and natural equity. Therefore, the foundation of the validity for such a contract- similar to such a law- must be sought in justice and equity. Adopting such an approach, the principle of contractual justice and fairness- not the principle of the autonomy of the will or the principle of obligatory force of a contract- surface dominant. Such an approach could become more conductive to Iranian contract law. Neither will of legislator nor the principle of the autonomy of the will could be considered as the foundation of the validity of the contractual content in the Iranian legal system, all in order to deter the contract to be praised. It is God's will that determines the foundation of the validity of the contract and this will gives priority to the La Zarar and the negation of Hardship over other contractual principles.

The Survey of criterion of gravity threshold for prosecution of crimes in international criminal court One of the issues that have gained a good place in considerations of the office of the prosecution and Icc, is the gravity threshold set out in paragraph 1(d) of article 17 of statute. This concept has some challenges: challenges such as lack of definition, lack of criterion for satisfaction of this concept. Given to the fact that gravity threshold is one part of admissibility mechanism, these ambiguities can disturb the legitimacy and function of international criminal court as the first permanent international criminal court. Hence, the purpose in present paper is to clarify this significant concept. Moreover, the gravity threshold criterions and the role of this concept in situation and cases also have been analyzed. Finally, it is concluded that due to political considerations, the clarification of gravity threshold is seriously needed.

According to copyright system, the normal standard for protecting literary and artistic works is originality hence the international copyright treaties such as Berne convention, while emphasizing on originality are avoiding imposing other mandatory standards for protecting such works. However, these works are different forms of expression of various ideas and accordingly, comprise different contents. In some cases, the works contents are inconsistent with religious and national values and norms or society custom and laws. There are conflicts between protecting copyright as an intellectual property right and other moral, religious and legal priorities in the society. For resolving this conflict and answering the question whether work content will affect copyright protection, countries have adopted different approaches. From the perspective of the work content, this article through a comparative study of approaches and judicial verdicts of the USA, the UK and Canada, infers two general views: the work content does not have any impacts on copyright protection and the work content have impacts on copyright protection. In addition, some supporters of second view believe in content impact on existence of copyright in a work and other supporters believe that content has impacts on some enforcements of copyright.

Guaranty of security of juridical act about lands is a more important difficulties in every country. Disregarding the independence of land registration system from the system of civil law and disregarding bases and functions of land registration system has resulted in making mistakes by judicial doctrine and precedent in order to propose proper suggestions for solving the problems related to land registration system and to sanction for juridical acts about lands. Whiles presentation every solution in this scope must be proper regarding to protective bases of owner and third parties and two functional characters of the land registration system including “informing” and “protective” features. land registration systems can be divided in constitutive registration system and confirmative one. This classification means land registration in any case, has a very effective role in credit of judicial act about of land although the degree of this effect is different depending on the system.

In criminal procedure, the best attitude to diversity of crimes and criminals are not yet determined and the juridical systems are also in the process of trial and error. Plea bargaining is an organization arised from juridical system of Common Law and particularly America on which the prosecutor and the accused discuss over the accusation and its outcomes.if plea bargaining is the organization wich infrastructure to deal with the cultural,social,economic and... but plea bargaining is the better way to benefit the accused, society and victim. study the extension of plea bargaining to other law systems in oder to pave the path for accepting the essence of plea bargaining in the law system of Iran.

Nuclear facilities, though have large advantages for human being, they also creates heavy hazards. Thus, the question of civil liability results from events of mentioned facilities are so significant. This paper studies the question of the basis and responsible for compensation results from aforementioned events in international instruments, Iran and French law. Outcome of this study shows that in this regard, Paris and Vienna conventions and the other related conventions and protocols adjust a special legal régime. In this respect, the international instruments while distancing themselves from liability based on fault, highlight the exclusive responsibility of the operator of nuclear facilities and they have commited the operator to insurance or appropriate secure financing. Also French legal régime have followed this manner with the impact of the Paris Convention and its amendments and additions. There is no special provisions in Iran legal régime in this matter so civil liability results from nuclear events is under general rules of civil liability and rules such Itlaf (loss), Tasbib (causation), Taqsir (fault) and La-zarar (no damage) in the context of Imamye jurisprudence. Ofcourse, the responsible is basically the one who the damage is attributable to him. Finaly, It is appropriate that the Iranian legislator predict favorable régime and provides special financial fund for compensation of possible injured parties in accordance with necessities and specific requirements related to nuclear energy

Petroleum upstream service contracts possess different aspects of legal, contractual, fiscal, economic, technical, technological and environmental nature. In this research, efforts have been made to review one of the aspects of the petroleum upstream contracts which have been far too little considered by the domestic legal community, namely the fiscal system of upstream service contracts. Since every service contract avails of its own independent fiscal system, we tried, using the analytic and comparative approach, to review the fiscal system of Iranian service contracts (buy-back) after taking a close look at the fiscal system service contracts used in Iraq. Since our country is in possession of Joint Petroleum Fields with Iraq, it would be extremely beneficial, from the comparative law perspective, to take into full account the contracts concluded overseas for the same field. thus, in the interest of producing a practical research, benefits have been taken from the details two draft petroleum service contracts of Iran and Iraq.

In special criminal tribunals before the establishment of the Court, in the first generation of tribunals, Nuremberg and Tokyo, Unfortunately, not only is there any notes to the rights and protections of victims, but also no mention of the term "victim" is seen. In the second generation trials, the former Yugoslavia, Rwanda and Sierra Leone, although there were some improvements compared to previous courts, but they did not dedicate a place more than witnesses to victims.International Criminal Court, influenced by the developments and experiences from previous international tribunals, has considered relatively broad participatory rights for victims in different stages and with different forms. Despite high limitations in victim's participation, the court jurisprudence has supported a broad interpretation of participatory rights. However, the judges are generally determining the deadlines, procedures and participation.

Procedural acts may be invalid because of Formal or Substantial Irregularity. In French Procedural Law we can see a distinction between Invalidity of Instruments owning to Formal Irregularity and Invalidity of Documents by Reason of Essential Defect; a distinction that effects on nature and its plea time and subsequent regularization of document. Formal invalidity must be expressly provided for in Law, except where it is a case of a failure to comply with an important formality or one of public policy but Plea of invalidity based on failure to comply with substantive rules relating to written pleadings shall be admissible without the party raising them having to prove any prejudice to him even where the invalidity does not arise under express provisions.