نشریه حقوق تطبیقی (نامه مفید)
سال چهارم شماره 2 (پیاپی 8، پاییز و زمستان 1396)

The appearances of technological processes have affected the legal transactions and payment methods and these processes open the novel perspectives of communications human beings. The possibility of issuance and the transfer of electronic negotiable instruments have expanded the demands for the usage of these instruments; on the other hand, in cyberspace have made new challenges to applicable law for these instruments to conflict rules of private international law. In many countries, new laws such as UNCITRAL model law codify in the response to the appearance of electronic communications and have tried to overcome this problem by applying two principles of the equality of use and media neutrality; but also, in cyberspace maybe made some objections for applicable law. For solving this problem, the global trend is toward the adoption of "Principle of Party Autonomy" and to give authorization to the parties for the determination of lex mercatoria finally as the legal system governing the obligations of these documents.

Arbitration is recognized as a peaceful way of resolving disputes (one of the alternative dispute resolution methods), which is based on the agreement signed by the parties. Whereas the arbitration procedure has many advantages compared with national courts, it is developing day by day. Nevertheless, there are some issues that are not referable to arbitration in terms of legal systems, or the legislator has made certain conditions for referral to arbitration. Therefore, the free will of the parties for the referral of a case to arbitration is limited by law. In this article, the issues of arbitration that are not subject to arbitration in Iran's legal system or their arbitrability are not clear, have been investigated by looking at similar subjects in other legal systems and emphasizing on the judicial precedent in Iran's courts.

Harassment is an offence that its commission causes probably severe confusion of the victim, so that, in some cases, the victim may suffer some kind of psychical condition. Therefore, it can be plausible that this offence is primarily aimed the psychical integrity of the victim. Accordingly, in the English criminal system, any behaviour causing harassment against any person, with respect to some circumstances, can lead to occurring the offence of harassment, meanwhile, the offence of harassment is generally divided into two types: simple and aggravated. However, the study of the Iranian criminal system shows that the Iranian legislator has focused, in the context of the offence of harassment, on its committing against particular victims, or by using a specific tool. Such an approach would lead to neglecting other behaviours that cause harassment, and does not provide the possibility of effective fighting with the offence of harassment. Thus, it is appropriate that Iranian lawmaker accepts the offence of harassment in a more general sense.

Civil liability arising from property ownership as a kind of liability arising from other person’s action is of significance in that it includes the liability arising from ownership of buildings, automobiles and animals which are the most dangerous property causing civil liability. In Iranian law, the liability of building and animal owner arises from his fault for not taking care of them that need to be proved by suffering person. But in Egyptian law, for simplification of compensation, the owner is absolutely regarded as liable for the damage his property causes unless he can prove that the damage has been caused by a force majeure. In this research, the basic difference between these two legal systems as well as the causes excluding civil liability within them will be dealt with.

The enjoyment of a healthy environment and, in particular the enjoyment of the clean air is one of the most important concerns of human beings in today and future. By reviewing the documents and international treaties, we perceive two different approaches in this issue. In some of them, such as the African Charter, it has been expressly accepted under the title of a right, but in others, such as the European Convention or ICCPR & ICE, there is no mention of it. In this regard, the practice of international organizations has been in two different directions. According to one group of the international organizations, the enjoyment of the clean air has been studied directly in the form of the right to a healthy environment but based on the view of some others it has been assessed as one or more human rights (the first or second generations of human rights). In the following, we will see, contrary to the preliminary impression, the practice of international organizations of the second group, and particularly the European Court of Human Rights, has been much more successful.

“Criticism” as a major manifestation of freedom of speech is a good criterion for the evaluation of the degree of democracy of political systems. In Islamic system which requires public consent at two stages of creation and continuation, “criticism of the rulers” or “criticism of their behaviours or opinions” is considered as the right or, somehow, the responsibility of the citizens. Such a right and responsibility which are understood from religious teachings may be exercised by the people independently or in the form of NGOs, civil society organizations, political parties or political organizations and the Islamic system is obliged to ensure the enjoyment and the fulfilment of the right by the citizens. In addition to examining the religious foundations of this right, this article focuses on comparing this right in international law and the Iranian law, then by considering the shortcomings of international documents in this area, it has answered the question that whether any limitation has been specified for criticism or not; and If the law has drawn a line for criticism, in case one exceeds the limits of criticism; according to Islam, international law and domestic law what is the related legal action in this matter?

When a court issues a civil judgment, but the convicted does not execute it voluntarily, if there are no effective remedies available to winning party to bind a losing party over the execution of a sentence, the court's decision becomes in practice a worthless piece of paper, hence, effective strategies to enforce the laws and provide justice are essential. Therefore, in addition to paying attention to specific sanctions, these strategies should benefit from effective science, including economics and communications, and be accompanied by successful experiences.
Undoubtedly, current solutions to the enforcement of civil sentences in Iran's law do not have the capacity to create executive power and prevent the convicted person from escaping from execution to satisfy the judgment. Therefore, it is necessary to make the necessary changes, including constituting a legal system for the identification of the convicted property. In France, with the establishment of this system, the civil code has found its judicial value due to the possibility of quick execution of the judgment out of the convicted person' properties and the prevention of the hiding of property by him. Thus, in this article, we have tried to study the effective strategies of the execution of civil judgments in both legal systems by a comparative study of French and Iranian law.

Ownership and right are among the most important legal effects of juridical acts and facts and different legal systems have different viewpoints on them. Relationship between the ownership and right is a disputable issue among lawyers and jurists. Analysis of the concept and nature of the ownership and right can help prevent mixing up these concepts and their legal effects. In this research, we have discussed the concept and causes of transfer and extinguishment of ownership and right in Iranian and French law. The results of this research show that in Iranian law, ownership and right are quite independently of one another and none of them is wholly covered by the other. Moreover, ownership is a contractual relationship between the owner and the owned object and its subject is not necessary to be in the outside world. Subject of the ownership can be a visible object (both specified and unspecified objects) or a type of benefit. Right is a special ability that its subject is an act. In French law, ownership is a type of right. Right is a legal relationship, through which the owner gains authority on the owned object as a proprietor or beneficiary. In Iranian law, the creation of ownership is possible through juridical acts, whereas the creation of right is possible through both juridical acts and facts. The transfer and extinguishment of the ownership and right are also done through juridical acts and facts. Similarly, in French law, all the creation, transfer and the extinguishment of right are done through both juridical acts and facts.

To protect intellectual property rights, the international efforts showed its maximum strength and capacity through ratifying the universal TRIPS Agreement. But even by this convergence at international level, struggles between developed and developing countries about intellectual property protection at international level did not decline. Developing countries believed that it would be the last pace of international intellectual property system. Developed countries, on the other hand, envisioned TRIPS only contains minimum-standards provisions. So, developed nations dissatisfied with the level of protection introduced by TRIPS and by the way, thought the multilateral regime has presented its utmost capacity by this agreement, shifted the current multilateral level to bilateral and regional agreements to transplant themselves intellectual property standards.
Since then, lots of efforts have been made to harmonize intellectual property provisions in international stage. This multilateral approach to protect intellectual property rights began by Paris and Bern conventions and reached to its best by TRIPS agreement. Now, there is a complicated situation in international intellectual property norm-setting. What is going to happen after TRIPS agreement? Divergence or convergence? In this article, we try to answer this question by examining the origin of these changes and specify some significant results at the end.

The binding force of contract as one of the important principles of contract law is accepted in all legal systems of the world, whereby the two parties are obliged to implement their contractual commitments, However, sometimes circumstances arise that make it impossible to execute the contract or cause substantial changes in the conditions of the contract so that the performance of contractual obligations becomes difficult. These events are studied under the subject of the legal excuses of the implementation of the contract. Of the main theories of legal excuses, the doctrine of frustration of contract in common law, the rule of hardship in Islam, force majeure and hardship in the principles of international commercial contracts (UNIDROIT Principles) are at issue. The opinions expressed in this regard are very similar to each other from the point that the exemption of obligator from his commitment and the dissolution of the contract may be a result of an external event which makes the performance of the contract impossible or significantly difficult. Based on similarities between these theories in this article, this study attempts to examine the similarities and differences of these opinions.