نشریه حقوق تطبیقی (نامه مفید)
سال سوم شماره 2 (پیاپی 5، پاییز و زمستان 1395)

Currently there are two legal systems to protect software: the open source system and the intellectual property system.
Historically the open source system was created due to the necessities regarding the production and use of software. The ten principles governing the open source system determine the method and scope of protection of software in this system. Despite the numerous benefits in protection of software through the open source system, the disadvantages are to the extent that the acceptance of this system as a protecting system has been faced with serious doubts.
Protecting software in the intellectual property system, which often takes place in the form of copyright, despite having the advantage of securing legal rights of the software producers, leads to monopoly in the software market and stagnation of the software industry, as well as basic necessities of the software industry -such as updating and compatibility of software-, not being met. Hence, the absolute reception of this system in its current condition is not appropriate.
Present study shows that the disadvantages of each aforementioned systems, has caused the absolute use of each of them as the appropriate support system to face with serious flaws.
Also the fundamental differences between the two systems, especially regarding the assignment of creator’s rights in licenses, makes it impossible to combine these two systems to create a complex system as the proper system for software protection. Therefore, in the current situation, the reform of intellectual property rights in light of the open source system would be the most appropriate method to protect and develop software.

In essence, the system governing the conflict of laws is a procedural one, and apparently justice in its substantive sense has no place in this system. However, following the evolutions due to “rule-based instrumentalism” in conflict of laws over the past half-century, justice in a substantive law sense has entered this area of private international law and changed the conflict rules from their traditional face which relied solely on the geographical or personal connecting factors. Protecting persons or special legal status’ along with respect for the autonomy of the parties in determining the applicable law in most connecting factors, are some of the characteristics of justice in this sense; an approach that was one of the objectives of Rome II Regulation in European Union Law, it was never achieved. In Iranian Law, apart from the personal autonomy of the parties in determining the applicable law to civil liability, substantive justice has found no place and adhereing to the requirements of conflict justice is still dominant.

Despite the increasing use of the construction contract and its varieties, the legal nature of this contract is not properly explained. Analyzing the nature of this contract, different formats are suggested: agency, rent of services, purchase of services and innominate contract. The commitment that arises by the construction contract is for a physical action, and therefore is different from agency which is representation in possession; a legal action. This contract is a covenant in which two factors are inclined; specified time and guarantee for performance. Therefore it does not coincide with rent of services either. This contract is also distinguished from the sale contract, which is an ownership contract. Taking into account the Engineering Act and the National Building Regulations, would eliminate the assumption that construction contract is of innominate contracts; and it becomes clear that the construction contract is a nominate service contract.

After signing a contract, particularly a continuous contract, the performance of the contents of the contract may become impossible. In this situation, on the one hand, the principle of contractual obligation requires commitment to the contract; because making an illogical exception to this principle may come to undermine the contractual system. But on the other hand, it is assumed that commitment to the contents and performance of the contract are not possible. The impossibility of the performance will affect the responsibility of the obligator as well as the contract structure; this, under some conditions, may lead to the exemption of the obligator from contract performance and liability. Based on the kind, absoluteness and permanence of the excuse occurred, it is also possible for a contract to be dissolved, annulled, suspended and, at times, modified. If the impossibility is absolute and permanent, there will be two main effects in the Iranian and English law: the obligator will be exempted from performance liability and the contract will be dissolved. However, in other kinds of contract excuses, Iranian and English law have taken different solutions depending on survival or dissolution of the contract. A comparative study will show that the developments of Iranian and English Law have taken the same direction in order to maintain fairness and justice in logical decrease of the scope of absolute contractual liability and in increase of the number of ways to exempt the obligator in case of contract impossibility. Both legal systems have tried to keep, as much as possible, the structure of the contract.

Nowadays, terrorism is a threat not only to international and national security but also to basic human rights and freedoms. Therefore, given the blind objectives resulting from committing terrorist acts, its victims are considered as the most innocent people. Thus, special protection of their rights is of particular importance. Moreover, to protect and guarantee terrorism victim's rights within frameworks of national and international systems is one of the most significant matters found in criminal law, which is paid attention to by international community that embarked on approval of numerous instruments on this basis. Therefore, protecting victims which is one of the teachings of Restorative Justice is more important in national and international legal systems, in terms of the severity and the extent of terrorist acts.

In Article 286 of the Islamic Penal Code of 2013, crime of Efsad fel-Arz (Corruption on Earth) has been recognized as an independent crime. It lead to a question in jurisprudential and legal circles, as to whether and to what extent this crime –with the definition and terms given in the article- is consistent with known fundamentals of jurisprudence and law.It seems that the Iranian legislature has paid no attention to the fundamental and inalienable bases of jurisprudence while establishing this article, and unlike the vast majority of prominent Shiite jurisprudents who opposed the independent criminalization of Efsad fel-Arz, has proceeded to give a made-up definition of this crime, violating Islamic law rules. Moreover, criminalizing the Efsad Fel-Arz is inconsistent with some legal principles such as the principle of maximum precision in definition of crimes. Present study aims to review and critique legal and jurisprudential foundations of this crime.

Spread of the economic corruption has put political stability and economic development of countries at risk; the impact of this phenomenon is only not limited to national societies, but also threatens the financial health of commercial and economic relations at an international level. The United Nations Convention against Corruption (UNCAC) is a comprehensive instrument in this field. Iran is a party to this convention and has taken various executive and legislative measures at the national level to organize the fight against corruption. Among all these measures, preventive measure are particularly important and if paid enough attention an acted upon, they would decrease the political, social and economic costs of law enforcement and punishment after corruption. This article, considering the second chapter of UNCAC and national laws and regulations, has reviewed appropriate preventive measures for each of the legislative, executive and judicial pillars of Iran and anticipated possible positions where corruption might happen and capacities to prevent it. Studying the Anti-corruption measures, it seems that the capacity for public participation in the fight against corruption has been neglected. Raising public awareness and proper release of information on laws, procedures and practices, protecting NGOs, supporting public participation legally and proper reports within rules, are measures that could speed up the anti-corruption movement and increase its efficiency and effectiveness.

The emergence of restorative justice is a result of developments in approaches toward criminal justice and the thoughts regarding crimes in the past two decades. Restorative justice is a balanced and comprehensive approach to crime conditions; via instruments such as mediation, it attempts to not only maintain the interests of all victims of the crime, but also to provide grounds for rehabilitation and re-socialization of offenders. The goal of this study was to evaluate the role of mediation and social work departments in police stations in the prevention of recurrence of crimes. Present study is practical in purposes and has a descriptive-analytical nature, using library, documents, and fieldwork studying two groups of offenders. Since referring to the researches done in this field is the best and most effective way to attain theoretical bases regarding restorative justice and the role of police in prevention of crime recurrence, this study has used the library method, documents, statistics and analysis of the performance of counseling and social work departments police stations in a five year period of time to try to portray a clear image of the opinions of researches in this field and to analyze the current situation of counseling and social work departments, aiming to provide practical solutions for prevention of crime recurrence based on police mediation. Results indicate that police mediation with a process-based approach and using local community’s capacities, affecting the personal and social conditions of the offender, would decrease the offender’s tendency to repeat the crime. In other words the more the police tends to have a process-based mediation role, the chances of recurrent crimes would decrease; on the contrary, the more the police tends to aim for decrease of cases in a dismissive manner, the chances of offender’s recurrent delinquency would decrease.

One of the founding elements of a legal system is a legal rule or legal norm; establishing a legal rule is one of the pivotal issues of legal theory. The dynamics of a legal system depend on the dynamics of creating legal rules. According to Kelsen’s theory in reconstruction of the legal system, judges have a fundamental role in establishing and applying legal rules. Legal rules have five essential characteristics: validity, existence, binding force, acceptance and application. These characteristics affect judge's decisions like legal rules. The legitimacy of the judge's decisions, could be found in Kelsen's hierarchical structure model. In terms of the legitimacy, there is no difference between the general norms and specific norms (judge's decisions). Based on the theory of open texture, where the general legal rule is indeterminate, judge's decision is terminative as a legal norm.