نشریه حقوق تطبیقی (نامه مفید)
سال سوم شماره 1 (پیاپی 5، بهار و تابستان 1395)

Recognition of separate legal personality for company and limited liability mechanism for shareholders leads to creation of an organizational structure for company. This feature imposes commercial risks such as organizational objection to third parties. These objections refer to breach of all mandatory rules of corporate law and contractual rules such as corporate charter. Inter-organizational sanction of such breach of corporate law rules is the annulment of such actions and decisions. But this nullity is not reliable against third parties because of essential differences between commercial law and civil law regarding creation and transfer of right; and commercial law’s emphasis on apparent creation and transfer of rights.
This proves a rule as “impossibility of invoking organizational objections of company against third parties” which leads to “uninvokabilty” of “organizational objection of company” against “bona fide third parties”.

In the past, capacity of companies in the UK and Australia based on the rule of ultra vires, was limited to the object. This rule which was applied to protect the rights of partners, was not compatible with the business world which required speed and security in commercial trades. Now with the advent of economic development, countries seek to reduce the complicated legal forms and to use the simple forms, to guarantee the speed and security in trades. In this regard, in the UK and Australia unlimited capacity is given to companies and capacity is not limited to object. In Iran explicit regulations do not exist and most lawyers, based on the principle of expertise, limit the capacity of company to its object. The new bill of Commercial Code has not provided a solution for this problem. Existence of companies with wide range of objects in one hand and lack of a strong and effective supervision of the company on the other hand shows that the limitation of capacity is not an appropriate tool to monitor companies’ affairs. In this article we try to study legal developments regarding the capacity of company in English legal system; and with a look at Australian and Iranian law, we analyze effects of limitation of capacity of company on trade relations and rights of partners.

The principle of intimidation of rights and public freedom is definite with concepts such as public order, since collective life is dependent to restricting rights and freedom. Since despotism and absolute elimination of rights and freedom is indecent and obscene, it is not possible to have definite and non-restricted freedom and it would be the start of despotism. Public Order, is one of the titles intimidating freedom and rights which has had certain functions in various fields and alongside titles such as public security, ethics or public health, which restrict the scope of man’s freedom. But it is worth to mention that this intimidation - although unavoidable- should not be unconstrained and there is a need for framework.
In this article we seek to review the conditions of imposing restrictions with a focus on public order -which is one of the key titles of intimidations used by power holders and governments, as well as being referred to in human rights literature especially in judgments of authorities such as the European Court of Human Rights. Meanwhile in addition to the principle of Ability of Intimidation, we aim to explore rules such as Rule of Law, Principle of Necessity, Principle of Proportionality, Principle of Democratic Society, Judicial Control, and having a legitimate goal.

Although the term “natural commitments” has been created by the western law, it seems that it can be given a basis of authenticity in the Islamic legal system. This article tries to look into the case within the framework of jurisprudential doctrines. Issues such as Res Judicata as well as decisive oath can be known as examples of natural commitments. Lack of sanction for such commitments is not in contrast with Islamic regulations; because judgments are made based on apparent proof.
Although civil debt falls when the decision is made, debt naturally remains effective in case that apparent judgement is made based on false foundations. Such debt when paid, would not be refundable.

Iranian Civil Code has defined mortgage in article 771 and then in the next articles has stated its conditions and consequences. Maritime mortgage contains the conditions and characteristics which are different and sometime conflicting with the civil mortgage. On the other hand, the explicit exclusion of marine mortgage from Civil Code rules - according to article 42 of the Marine Act-strengthens this idea in mind that Maritime law has introduced an institution that varies with mortgage accepted in Civil Code and jurisprudence texts. In fact, it is a particular and independent contract; particularly because special rules are predicted for maritime mortgage- specifically about ship mortgage- in the laws of other countries and international conventions.
Therefore this paper is a legal analysis of marine mortgages as an independent contract aiming to fully recognize the legal nature of this contract.

According to the common view of Emaimah jurists, reciprocal contracts require consideration to transferred to the owner of the goods and vice versa; if not, then there would not be any exchange. On the other hand, some prominent jurists disagreed with the rule, and considered such action, a valid exchange. With regard to the latter view, the question arises whether the third party beneficent may demand performance of the contractual obligation? There are some mentions to this rule in Iranian Civil Code as well as some counterexample for it.
English lawyers have also presented the rule that consideration must move from the promisee, but it need not move to the promisor.
This article seeks to study the mentioned rule in Emamiah Jurisprudence and Iranian and English Law. It tries to prove that firstly, the exchange rule is not the essence of reciprocal contracts and the parties may disregard it and, secondly, the third party beneficent may independently demand performance of the contractual obligation.

The aim of bail in a civil action is to ensure the presence of the defendant at trial. In criminal cases, bail means to ask from the accused or the offender to designate someone who guarantees his appearance at trial or his presence for implementation of the punishment. Acording to some Islamic narrations (ahadith) it is prohibited to stand bail in criminal cases. These narrations have often been construed as referring to had in its idiomatic sense, i.e. prescribed punishment as opposed to discretionary punishment.
Through analyzing the jurisprudential evidences of the decree, the author concludes that first, due to ambiguity of the evidences it is hard to consider such a decree among the jurisprudential rules. Secondly, the prohibition of bail is not limited to had. Some kinds of bails like those that undermine the certainty of the punishment, or imply unjustified delay in the execution of the punishment, or require unnecessary obligations for the offenders or the accused are not allowed, be the punishment had or ta’zir. Thirdly, obtaining some expediency or avoiding an evil may make the bail acceptable or even necessary. Accordingly, the decrees of bail are not a cause for differentiation between had and ta’zir. This article also implicitly compares bail in civil and criminal cases.

One of the cases suspicious to “offence against the administration of justice” or misconduct before the court is the case of the Prosecutor vs. Thomas Lubanga Dyilo. The prosecutor in this case refused to carry out the court orders to disclosure evidence to the defendant and judges.
Prosecutor justified his action based on his responsibility to support providers and the terms of confidential contracts among them, which have been set up based on article 54(3)(e) of Statute. The Court ordered disclosure of evidences based on article 67(2) of Statute and article 77 of Procedure Law and required the prosecutor to obey this command.
But according to prosecutor’s justified reasons for disobedience of the court’s orders and his frequent attempts to get providers’ consent to disclose evidences and providing conditions for disclosure of similar evidences as much as possible, lead the trial court to not recognize his disobedience as offence against the administration of justice or misconduct before the court, and the appeals court to remind the trial court to respect prosecutor’s confidential contracts.

The security of society and citizens as a fundamental state policy, is expressed in a series of planned actions in the form of crime control policies. This important matter – in democratic societies whose dominant value in criminal policies, is freedom- appears in the society as crime prevention and the minimal intervention of criminal justice system strategy. This is preceded by the etiological studies of delinquency.
Whereas in totalitarian states, suppression and surveillance on private lives of people is the strategy of criminal policy; And situational crime prevention and outlining security approaches to crime and criminals - using “prevention” as a pretext – is the tool in hands of police and the judiciary.
Although creating a secure society has caused rapprochement of preventive measures of democratic states to policies of totalitarian states. However this important matter in democratic states is marked by the obligation to respect human rights teachings.
This paper while doing a comparative study of democratic and totalitarian models of crime prevention policy, tries to explain various aspects of these models.