مجله تحقیقات حقوقی
پیاپی 65 (بهار 1393)

La principe dispositif donne aux plaideur la maitrise de la matière du procès, c’est à dire “l’objet” et “la cause” de la demande. C’est en ce sens gue l’on évoque parfois “la neutralité” du juge ou “le principe de neutralité” du juge, corollaire du pricipe dispositif. Si la notion de l’objet est assez claire, mais les auteur, en droit fracais, ont assez profondement divisés sur la notion de la cause de la demande. D’autre côté, la question de savoire est si la qualification des faits est incluse dans la cause? Est si le juge a le pouvoir et le devoir de qualification et requalification des faits litigieux. On essaye de repondre a’ ces questions.

It has been time since protection of authors’ rights was considered by legislator as one of the most important necessities in civil society. Considering the tools that infringers used for violating of their rights in different periods, forms of protection for authors have been evolved. In this context, the main question is that: regarding the variety of communications on the internet and existence of different tools for protection on innovative ideas? It is obvious that if the characteristics of contemporary law were efficient for achieving this aim. We have to make changes in the very concept of copyright law, or basically this kind f rule must be extinct for reason of inefficiency .In this article by the application of economic analysis of law method, we consider the supply chain behaviors in this field. Ultimately we will represent a new face for protection of copyright according to the requirement society.

Le développement du droit international de lenvironnement était une tentative de créer un équilibre entre les objectifs commerciaux et environnementaux. Le développement durable tente de réconcilier entre les questions commerciales et environnementales. La rédaction des accords multilatéraux environnementaux en droit international de l’environnement d’une part et la création des mécanismes institutionnels tel que le Comité du commerce et de l’environnement d’autre part sont considérés dans le cadre de l’OMC comme un acte pour faire une interaction entre les deux questions.
Malgré les mesures prises au sein de lOMC, il faut explicitement déclaré que cette organisation nest pas une organisation environnementale. Nous analysons dans cette recherche linteraction entre le commerce et lenvironnement pour que les différentes dimensions de ce sujet soient examinées.

Up until 2004, the Islamic Republic of Iran had no legislation governing information technology and communication systems. In order to take account of the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law (UNCITRAL) and to give legal recognition to electronic communications, the Electronic Commerce Act was enacted in 2004. This Act establishes rules and norms that give legal recognition to electronic data messages and electronic documents formed through the use of electronic means, defines the characteristics of a valid form of electronic writing for commercial and non-commercial purposes and supports the admission of electronic documents in courts as well as governmental organizations. It also examines and discusses the nature and value of electronic documents as well as the legal framework for admissibility of electronic documents. Section I present a background on the definition of electronic documents and data messages and identifies elements of an electronic document. Section II discusses substantive differences between the electronic document and the paper document and presents a list of differences between these documents.

Marine salvage is the process of rescuing a ship, its cargo and other property from perils. There are two types of salvage: a contract of salvage and pure salvage. In a contract of salvage, the owner of the property and the salvor enter into a salvage contract prior to the commencement of salvage operations; the amount that the salvor is paid is determined by the contract and the salvor renders assistance according to the terms of the contract. Every agreement as to assistance or salvage that is entered into at the moment and under the influence of the danger may, at the request of either party, be annulled by a court, if it considers that the conditions agreed upon are not fair. The legal status of such a contract is valid but voidable. So a voidable contract is one which one of the parties or a third party can put an end to at his/her discretion. Voidable contracts are not generally known of in Iranian law, but some exceptions such as salvage contract can be found.

This article first studies the concept and characteristics of the right to self-determination as an important demand for religious, linguistic, or ethnic minorities, and reviews the evolution of this concept since the end of cold war. This article also asserts that the realization of democracy and human rights have become essential elements of the right to self-determination over the last couple of decades. It is argued that the establishment of democratic regimes and the observation of human rights are necessary steps to be taken by governments with regard to minorities’ rights; however, in the case that their rights are grossly violated, they may be forced to resort to secession, and the international law should recognize their independence.

The elements of fraud in forging documents are supporting unreality, deceiving others, deceit and insistence, all of which are mentioned under the title of "purpose of fraud" in Article 523 on defining fraud. However, this crime is not conditioned by a specific result but its existence, the intention to have the result and its ability to occur are necessary elements. The subject of fraud in forgery is an unreal text and is a deceiving message of such evidence that has appropriate evidences. Hence, the deletion of or adding a word or assigning a piece of evidence is not a fraud in itself, unless it is a positive or denying factor for the reality; in addition, carrying out minor repairs on electronic cards in order to use them is not a fraud unless it is for some special purpose.

Sometimes employment contracts, regarding the specific relationship between employer and employee, contain noncompetition clauses whose validity has been debated and challenged to differing degrees. This research, in a comparative study, will at first clarify the general situation of noncompetition clauses in employment agreements and, then, analyze its conditions concerning validity and, finally, consider the terminating influence of the employment relationship on noncompetition clause. This paper shows clearly that, in legal systems such as Iran which have no detailed regulations on noncompetition arrangements, determining the limitations on their validity in a manner which finds a balance between the effectiveness of the clause and the matter of not imposing unreasonable constraints on an employee is extremely sensitive and difficult. Accordingly, regarding the Iranian legal framework, it provides some suggestions for addressing the issues of noncompetition clauses in employment agreements.

The legal apparatus for protecting foreign investments in a host country is affected, on the one hand, by international law (international treaties, custom, principles of international law and doctrines) and, on the other hand, by domestic laws and political relations. Due to this multifaceted feature, such a legal regime is very complex. When the Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran was passed, it was not easy to conceive that such treaty could be resorted to in domestic courts against parties of the treaty. McKesson’s dispute against the Islamic Republic of Iran, despite of restrictions expressed in Algiers Accords and other political and legal obstacles, brings the question up as to how the McKesson Corporation could establish jurisdiction in the American courts and how the United States courts issued the verdict against Iran by resorting to the Treaty of Amity and Iran’s law. This article aims to discuss the jurisdiction of domestic courts in the United States to rule on actions of Iran’s government and private right of action against Iran by resorting to the Treaty of Amity and Iran’s law. It also considers obstacles in establishing domestic court jurisdiction based on the sovereign immunity principle and doctrine of foreign States’ acts.

Franchise contracts have always been, from the past up until the present, one of the permanent and challenging subjects in competition law because of their nature and effects. Since this form of contract has, recently, found an important place in Iranian contract law, this article attempts to discuss the controversial terms and conditions of this type of contract, using the legal and judicial approaches of these legal systems in the field of franchise agreements (such as the EU and USA). This is done, first, from the point of view of aforementioned system of competition law and, then, by using these approaches, the position of Iran competitive law in this regard is assessed.