مجله مطالعات حقوق تطبیقی
سال هشتم شماره 2 (پیاپی 16، پاییز و زمستان 1396)

The interpretation is removing the vague points and brevity of the contract to discover and finding out the intent of the speaker and recognizing the nature and determining the content and effect of the contract. These tasks are to be performed by a judge or arbitrator. In the Iranian Law, the internal intent of the parties has priority and the criterion is the Subjective Test for interpretation of the contract. However, given that discovery of the actual intent is often difficult or even impossible, placed Conventional meaning of the words and acts as a criterion to interpret (Article 224 of the Civil Law), unless it is proved that the real intention of the parties, has been on the contrary. Article 8 of the Convention on the International Sale of Goods, in interpretation of the contract, has accepted the combination of both subjective and objective tests. Accordingly, in the first understanding of the common intention of the parties is placed criterion and if by reasonable reasons, it would not be established, then, the contract shall be interpreted in accordance with the objective test. Namely, for removing the vague points and brevity of the contract, the contract is to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. This research, attempts to analysis the role of usage in the interpretation of contracts in the Convention on the International Sale of Goods Act 1980 and the Iranian law.

Silence of the Iranian criminal law and rules to confront this problem in Article 167 of the Constitution of the Islamic Republic of Iran has been explained with reference to sources and authentic jurisprudence.
The doctrine of guardian council of the constitution in many cases based on Article 167 of the Criminal Affairs published and analyzes and numerous criticisms of the lead lawyers and legal-rights has raised numerous challenges.This study is based on Intellectual and narrative aspects and challenges in the field of silence of the Iranian criminal law and to confront the problem of important issues. Guardian council of the constitution theorists among the important issues that are part of the Subject of the article.
None of the bugs can be designed to prevent any negative reference to this principle in criminal matters and the authors try while respecting the privacy of the people -who are guilty aspects are concerned

The idea that a breach of the investor’s ‘Legitimate Expectations’ (regarding that host State should act consistently and in a stable manner) may be relevant to decide whether a violation of investment treaty has occurred or not, has been recurrently put forward by claimants in investment treaty arbitrations and has been endorsed by a growing number of arbitral awards in the last few Years. However, the picture emerging from this jurisprudence is not clear; because arbitral tribunals have provided protection for legitimate expectations of foreign investors without justifying the basis of this protection (only with reference to former arbitral decisions). So, in this article, considering that the doctrine has found its most popular application under the fair and equitable treatment standard; the basis of protection of legitimate expectations under this standard is described.
Fundamentals of supporting expectations are described in light of the sources of international law. The operation of these resources, including treaty, convention, general principles of law, international arbitration procedure and legal doctrine, will support the expectations of foreign investors.

Divisible and indivisible actions are the legal concepts that in terms of legislation, jurisprudence and doctrine have always remained shrouded in mystery. In some civil cases, being of the plurality of beneficiaries or parties, judges encounter various proceeding and enforcement challenges making inevitable the necessity to conduct a research on these two types of actions. The issuance of contradictory judgments is one of negative consequences of wrongly making distinction between these two types of actions. Nowadays jurisprudence doesn’t follow any particular formula to distinct these two actions. Hence there are differences in recognition of instances of these two types of actions. This research, with the assistance of comparative study on the French legal system, is aimed to provide an appropriate solution to the prevention of contradictory judgments and violation of the right of individuals through introducing some elements in order to make distinction between these two types of actions.

One example of the right of ownership of property rights that today most countries the right to movable and immovable property in the case have identified for Foreigners.However, the major limitation for the foreigners in Iran the right to ownership of immovable property is in terms of access to it is provided according to Article 8 of the Civil Code, a treaty of reciprocity to identify the right essential element to is. In contrast, Turkey has removed restrictions on such action, provided the cross for the acquisition of immovable property, the purchase of real estate and land by foreigners paved, because thinking person responsible in Turkey is that the country's economy and attract abundant capital contribution will take heed. It is no secret that globalization and Turkey's bid to enter the Europe Union is also an impact on the willingness of foreigners buying property. So that it can be said that membership in Europe with the sale of immovable property to foreigners in communication.

Of the most challenging matters of banking law has always been payments done through banking cards. In the wake of the prevalence of the debit cards in everyday banking system in Iran, this research’s main query is to analyze human mistake and technical error during a course of payment, and discern thereupon their difference with the unauthorized fund transfer. This query is analyzed through a comparative analysis with the banking system of the Unites States of America. This analysis can give a clear understanding of the legal responsibilities of the bank and card holders in Iranian banking law in case of either human mistake in concluding a wrong payment order by the card holder or technical error run by the operating bank. As the outcome of this analysis, in case of human mistake in concluding the wrong payment order by the card holder, bank has no legal responsibility before the card holder, but in case of any mistake and error in running the payment order, bank holds contractual liability and strict liability before the customer.

Statistics on registration function of Iranian patent office shows that the number of registered inventions has reduced between 1386-1393. The number of issued patents from 10346 in 1387 reduced to 3436 patents in 1392. This is while at the same time from 2008-2013 the number of Iranian patents registered in USPTO increased from 2 to 40. On the other hands there are many problems with commercialization of inventions in Iran and more than 90% of registered patents remain in the archives and never gets a way to the trade.
But what are the reasons? This article studies one of the probable reasons, legal defects on patent registration. So a comparative study on the patent Laws of two countries has been done. In this way it studied the laws and the issued patents from the two offices which are analyzed by technical expert. And it is proved that how different legal text effects the function of the patent systems.

PROTECTION OF " THE RIGHT TO BREAST FEED " IN ISLAM & INTERNATIONAL HUMAN RIGHTS SYSTEM, The results of Medical researchs shows that breastfeeding has positive effects on mental and physical health for mothers and newborns , So that the Breast-feeding prevents from many diseases in mothers and children. Therefore, policy makers of The field of hygienics and health are trying to Promote the breastfeeding of mothers and consider concessions for breastfeed mothers with legislations. Although in different legal systems including the system of Islamic law and the law of iran , good rules for protection from this issue have been put , However , whether in this legislation or in international instruments , There is no explicit reference to " the right to breast-feeding ". Although currently there is no doubt that it can be cited as an inalienable right of mankind. meanwhile , The " breast feeding " as a right for children, can also be considered as the right to mother.

Drilling unit is the main asset of upstream oil and gas industry which is utilized for the drilling or well work over in exploration, development and enhanced oil recovery operations. The issues concerning Offshore Drilling Units have more complexities due to their locations which are at sea and the requirements governing them; hence, from legal point of view, the status of the mentioned Units is controversial issue which is ambiguous not only in international law but also in Iran law. The legal status of Offshore Drilling Units may impact on the jurisdiction that states exercise over them. This issue emphasizes the importance of analysis of their legal status. Therefore, this article aims to analyze the different developed theories whether Offshore Drilling Units can be regarded as ship or artificial island or whether they have dual status or specific and separate status (category) and then it determine the best legal status of Offshore Drilling Units that can be responsive to the needs of oil and gas industry.

Criminalization criteria in cyber space, in essence, declares the method of selecting moral regulations and its compilation in the form of laws.This approach is based on criteria such as: the principle of subsidiarity of criminal law, the principle of distinction in support of data, and other principles than are proposed to governments as an approach to criminal legislating in the convention of cybercrimes. This study attempts to answer the question, "To what extent are criminalization in cyber space, in the two criminal systems of Iran and Germany, are influenced by international criminalization criteria in this realm?", and "What successes does the experiences of the criminal system of Germany have for the criminal system of Iran?" To answer these questions, qualitative methods, such as qualitative analysis of the contents of Iranian and German criminal laws, and analysis of the discussion governing these laws, are used. Results of this study show that for example the German legislator strictly supports personal pleas, whereas the Iranian legislator only considers sensitive pleas as included iran support. Furthermore, the German legislator considers being a child a form of damage and considers a distinction in the support of individuals, whereas the Iranian legislator does not consider such a distinction.

Deferment of sentencing is one of the new effects of decriminalization and ýcustomizing response to offence. The origin of this organ has been from ýcommon law system and has been introduced from here to the other ýcountries such as France. In Iran the legislator entered this organ for the first ýtime in the criminal system by way of Islamic criminal law 1392 and in the light ýof trenches criminal law.ý
although the legislator foreseeing the organ in every three systems has some ýcommon objectives as decriminalizationþ þý, correction ýþ þý,treatment and social ýreintegration of criminals by criminal no labeling,ý The conditions and arrangements foreseen at the time of its issuance and ýimplementation are different from each other. As well in Iran’s criminal ýsystem, despite that Islamic criminal law is in the light of French criminal law; ýsome of the related matters to this organ are not foreseen. This paper with a ýcomparative approach and using a descriptive-analytical method stating the ýbackground of deferment of sentencing organ, tries to explain differences ýand similarities of these three systems and uncover the ambiguities of the ýIslamic criminal law.ý

The study of the constituent areas and constraints on the rules of the law gives the right understanding of the status of a country's constitution. The Indian constitution is an interesting adaptation of the sovereignty of the English parliament and the US judiciary. The main question is: what constitutions are regulated by the law on ordinary laws passed by parliament? What are the exceptions to this oversight? The study of the two countries of India and Iran has led us to believe that the text of the constitution Iran has had a dramatic emphasis on the constitution of India, in safeguarding the norms of law-making standards. But this is India's system that effectively monitors the rules of law, and the Supreme Court, as a constitutional commentator, has been very influential on the scope of this monitoring. If in Iran, due to structural problems, many laws and rules have been protected by statutory oversight in the law, and the functioning of the Guardian Council has also contributed to this. The limits on the supervisory authority's oversight authority are often temporary and exceptional, while the limitations imposed by the Supervisory Board of the Structural Guardian are proposed. The present proposal presents progressive interpretations, consistent with the norm of the standard in the substantive texts, by the Guardian Council, such as the anonymous submission of the kidney Approvals of the pseudo-legislature to the Guardian Council and the creation of mechanisms such as the formation of advisory workers to supervise ordinary laws

One of the most important issues about carrier responsibility in international carriage of goods by road, is his responsibility for acts and omissions of his servants and agents that is considered in article 3 of CMR convention. According to Iran's accession to this convention in 1997, study the base, nature and scope of the liability of carrier for acts and omissions of others in the CMR convention, is important. Therefore this article by describe and analyze the theories about the basis and nature of carrier responsibility for act and omission of others, concludes that this responsibility on the one hand is a no-fault liability that is presumed by convention and on the other hand is a contractual liability. Drawing the thematic and personal scope of this liability is also considered in this article and it is determined according to the legal subordination and the term of “scope of employment” in the article 3 of CMR convention. However, due to the being limited the cases of carrier's exemption from liability, only get out of the mentioned thematic and personal scope, does not result the removal of liability from the carrier, but this is subject to the existence at least one of the cases of exemption from liability, which is mentioned in the article 17.

Warranty in England as its principle origin, is statements of seller in sale which is recognized as a collateral and unessential term. However, in US law, warranty is a contractual promise as a remedy to legal and material defects of products which is embodied in sale contract as a legal term. The latter concept is very significant as a contractual term and one of the effectual measures to counter with legal and material defect and also assurance of ownership and quality in international and domestic trade. In our research, we observe that warranty as a practical concept in commercial transaction, consumer purchase and intellectual property along with other obligations like guarantee, has unknown conceptual dimensions. Thus, in this research, in addition to examination of warranty concept in common law, we have studied structure of warranty and survey description and legal nature of this promise and separation from other similar concepts.

Since the full realization of civil rights and freedom is not possible without the foresight and respect for the duties of citizenship, is not possible, in addition to prediction of rights and freedoms has been payed attention to the duties of citizenship in the Universal Declaration of Human Rights and the Constitution of Afghanistan. Given that the UDHR has not been arising from the particular perspective of a country which that given the independence, territorial integrity, national security and order, objectives and national interests to determine duties for the citizines, this declaration has given over the determination of duties limitations of the persons to the society that these persons belong to it and prepare the free and full development of their personality. Due to the fact has been that Afghanistan given the independence, territorial integrity, public order and national security, national goals and interests of it has predicted a series duties for the its citizens.
Due to this that the aim of the UDHR has been recognization of rights and individual freedoms, the government of Afghanistan such as other countries has been influenced to insert these rights and freedoms in its constitution and other laws and since the mentioned UDHR has not counted the human duties, it has given over the determination of individual duties to the related society. Therefore, the government of Afghanistan has not influenced too mcuh from this perspective and it has been resorted to determine the duties of its nationals accourding the security inquiremetns, public order, public morality, economic vigor and governing circumstances to the society.The methodology used in this research is cross-sectional and the goal from the writing of it is assessment of the civil duties inserted in the UDHR and the Constitution of Afghanistan.

Human individuals are entitled to human rights from the beginning of their life. Rights that every human is benefiting of it , because he/she is human beings. In the meantime, the individual's right to recognition of juridical personality one of the rights that there is no doubt in importance and prominence and it is considered of the minimums of fundamental human rights. This right is considered as a prerequisite for the enjoyment of other human rights. The mentioned right still neglected in many legal systems and one of the inherent rights of human. The right to recognition of juridical personality is listed in the major global and regional international instruments and some national instruments. This right recognition every one as a person before the law. Therefore, in this paper we explain the status and the concept of right to recognition of the legal personality in some of these documents.

The concept of sustainable development has gradually entered the realms of politics and the economy and the interest of the international community and drew widespread acceptance in the last two decades of the twentieth century.
The development of this concept in the context of various regional and international treaties, had announced its entrance into the field of international law. International Law Association in 2002 adopted the Delhi Declaration, in which seven international law principle of sustainable development were defined. International Court of Justice 5 years after the adoption of the Rio Declaration uses the concept of sustainable development in its arguments in the Case concerning Gabcikovo-Nagymaros project and revealed normative elements of this concept.
The decisions and judgements of the International Court of Justice and International Tribunal for the Law of the Sea show a significant alignment in reference to the principles of sustainable development . Positive approach of these courts for the rights of future generations, while defending the interests of the current generation, shows that status of the principles of sustainable development established in the case law of the two institutions.

Good local government is the real and obvious case of good governance that in which both participation and supervising is real and objective. It also facilitates democracy and good governance in national level. More importantly, with the crisis of central national governments, local governments play a prominent role in the balanced development. In this essay, the local/urban government in Iran and Japan and its components’ was studied. Questions proposed in this essay include: What is the status of local government in these countries? What is the basis of its legitimacy? What is its public authority in the exercise of power? And How is the relationship between central and local government and How is monitoring over local institutions? This article tries to answer to these questions through collecting data from various legal sources and descriptive-analytical method.
This study concluded that at first, the components’ of the urban government must be strengthened. in order to realization of balanced development, The efficiency and effectiveness of these legal methods depend on that national politics in relation to local, regional and territorial planning (justice) must be changed seriously.