مجله تحقیقات حقوقی
پیاپی 82 (تابستان 1397)

La Fin De Non-Recevoir in the Law of Iran and France Abdollah Shams (Professor of Law, Shahid Beheshti University)Mostafa kordzangene(Ph.D Candidate of  Law, Shahid Beheshti University )Abstract  “La fin de non –recevoir” is an institution that has been predicted as a defense against a litigant in the law of Iran and France. This institution works as a the guarantee for not having the right of litigation or the lack of action, which is addressed in details in France’s civil procedure. However, there are only a few regulations about this institution in Iran’s civil procedure. But recognizing the La fin de non-recevoir as an instrument that can be effective in settling the problems based on its principles and contents, shows that most of the lawsuits and cases are not enforceable and must be ended by a conclusive decision at the beginning. Therefore the recognition of this institution in France dynamic legal system and also comparative analysis of Iran’s legal system in this matter and consideration of both countries’ legal procedure have been studied in this article.

According to the Quran and traditions Options are one of the rights of the person and will be transferred to his inheritor after his death. Although the Transfer of Options to the inheritor has been accepted in Article 445 of the Iranian Civil Code, However, there isn’t any provision about how to apply this right when Number of heirs is more than one person. Undoubtly if all of the inheritor agree on the termination of the contract, the contract will be rescind and Also, if they agree on the Remaining contract. But there are several views and perspectives if they have different opinion. These views are: Theory that gives an independent right in all of the option right to any one of the inheritor, Theory that gives an independent right to any one of the inheritor in his share, Theory that gives options right to inheritor title So that if one of them rescisse the contract, the contract will be revocated, Theory says This right belongs to all inheritor؛ they shall aplly this right only together. After review and critique of all theories in this article the fourth theory was chosen as the final jurisprudence and legal solution.

In this paper, the basics of civil liability of operators of transport terminals in convention of 1991 of United Nation and Iran maritime laws have been studied and compared. First, it has been specified that the basis of operator liability in mentioned convention is "presumption of fault" and in Iran maritime laws, it is presumption of liability". If in both regulations on subject investigation, the loser it not necessitated to prove the guilt of operator, but just by proving prejudicing and lose the liability and guilt of operator of terminal as legal assumption is assumed and thus, his liability in compensation of loss is proved. Moreover, in losses due to unknown reasons, the utilizer cannot release from liability since for exemption, he should prove the cause of loss and it’ s non- attribute ability to him despite the assumption of guilt. In following, the legal nature of commitment of transport operator is based on safe delivery of product and it is specified that in 1991 convention, the commitment of operator is obligation of means and object and in Iran law, it is obligation of result. At the end of this paper, the liability of terminal operator due to vicarious liability (his representatives or agents) and the basis of these liabilities have been studied.

AbstractMost often, normative hierarchy in legal systems is based on a certain source of which a norm originates. It is typical in each domestic system that the fundamental values of society are given a supreme position within Constitution; such norms will be prioritized in case of conflict with others. Within the decentralized international system, each state interprets its obligations in an equal manner with others; and it chooses the necessary tools to fulfill its obligations. Therefore, we witness the slow progress of consensus on path to generation of hard norms in the form of traditional sources has severely undermined the capacity to respond to contemporary challenges in practice. With the initiative of international law scholars and the contributions of the World Assembly, A move has been embarked from the origin of traditional international law, which stringently distinguishes between law and non-law, to the destination of modern international law, during which owing to the necessity of time requirements, soft law outstrips the exclusive position of classical resources to furnish the required grounds for global responsiveness to pervasive issues such as climate change. This paper securitizes the means and quality of penetration of the relativity stemming from soft law in the realm of hard law.Keywords: Relativity, Soft Law, Hard Law, Non-law

Guardian Councill as the Switchman of the Constitution Ali Akbar Gorji Azandariani (Associate Professor of Law, Shahid Behsti University)   Abstract In comparative public law, the Guardian Council is placed among the institutions of constitutional justice. It is a notion derived from democratic motivations, guarantee of the rights and liberties, restriction of power and in a summery, the protection of normative privilege of constitutional law in the legal hierarchy order. While Guardian Council has followed France constitutional law council formally, it has serious differences in the contents, jurisdiction and practices. The main functional difference between Guardian Council and other justice institutions in the modern governments is that it acts according to the Sharia’. Thus the judge whether intentionally or not, cannot be impartial and make the balance. This kind of functions may lead to the creation of some practices which is against the philosophy of constitutional law courts i.e protection of constitutional government foundations. The authority of the guardian council is not independent and its legitimacy depends on its loyalty to the political power and not entering to the territory of the founder. The result of constitutional judge and founder power’s struggle is the reproduction of inefficient cycle, invalidity and illegitimacy of political and legal system. The perception of Guardian Council as a switchman of the constitution seeks to protect the democratic systems from the constitutional judges’ dictatorship and the development of illegitimacy toward political structure. This article is an analysis on the theory of Guardian Council as a switchman of the constitution and its features in Iran’s constitutional justice.

A commercial investment agreement is a provision that restricts government clashes with the performance of foreign companies operating in their country. These terms are the terms of the investment that applies to multinational companies active in foreign direct investment and manufacturing activities in the host country. It is referred to as a business, in which the above conditions affect commercial flows in one or more ways through the three main ones. Iran's accession to the World Trade Organization and its multilateral agreements, relying on the Trimes, could be contradictory with the aim of resisting the economy, and certainly in addition to the conflicts in this area, there are also political, social and cultural dimensions. By studying the TARMS and other WTO agreements, it can be seen that restrictions on the obstruction of the economic objectives of the one hand, and the lack of restrictions on investment in the country by the so-called multinational corporations, have been examined before The annexation provides a detailed roadmap for minimizing the limitations of the Treasures and other agreements, neglecting progressive issues and precisionless pathology and reforming economic structures will definitely make the accession process vulnerable to the country. In this process, the TIMES itself is also an issue where annexation can keep the country away from its goal.

Suspension as one of the issues related to the contracts is accepted in the current legal system And even can consider the validity of suspended contracts in accordance with the rule and mention to the rules under the title of "suspendable rule of contracts". However, doubts have been raised by jurists and lawyers about the fact that collateral contracts as one of the types of known contracts in the current legal system are suspendable or not. Some scholars argue that there is no way to suspend a collateral contracts and they have cited reasons for justifying their opinion. In contrast, others believe that suspension, like other contracts, also applies to this category of contracts. Because the basic rule is that contracts can be suspended and the view that the suspension of the collateral is not correct is contrary to the principle, in this paper, the author's attempt will be to consider the reasons given by the opposition to suspend the permission of the collateral contract and examine them with an analytical view to determine their accuracy.

The identification of legal entities and determination of their legal status, as an introduction to creating "transaction security", in contracts with companies, is one of the issues that increasingly being considered by governments and intergovernmental organizations. It has led the governments to care of registration as a means to ensure the stability of legal status of companies. But the reviews show, practically the registration institute has not been able to meet the public's requirements in the field of contract security signed by commercial companies. This paper, with a comparative and analytical approach, has reached the conclusion that this is related to the lack of attention paid by the legal systems to the two "protective" and " declarative" legal functions of registration system and tools to achieve it and "effective" communication between the two common factors of all legal systems in the field of commercial companies, namely; "independent legal entity " and "registration" by effect of registration in The Constitution and inposability of the registered information, and the establishment of the assuring of the accuracy of the recorded information based on the adoption of a data recording research method and public confidence theory, provides context for the fulfillment of both functions and in result, incorporation will be enforced in contract security.

The Appeal Chamber of the International Tribunal For the Former Yugoslavia while prosecuting Tadic, as one a an accused of war crimes and crimes against humanity, on 15 July 1999 recognized for the first time the concept of Joint Criminal Enterprise (“JCE”) in a structural and in detailed manner categorizing it under three types, and as a theory. JCE is a model of criminal responsibility for individuals who commit acts for a common criminal purpose, design or plan and are responsible of the crime, provided that other conditions and circumstances are met. The nature of war crimes with regards to their collective commission, the fact that recognition of a lower level of criminal responsibility for the aider and abettors than principals does not appear to be necessary due to their equality of and common mens rea, the application of deterrence effects, shadowing of the penalties personalizing and the ability of adaption to equity and justice criteria as more as possible, are the principle purposes and foundations of this theory, that requires an exact legal analysis. This mode of criminal responsibility, which has been a range of criticisms by jurists and lawyers, is of a range similarities and differences with other modes of criminal responsibility i.e. association and aiding and abetting and criminal responsibility of a superior. It also overlaps in some instances with the such modes of responsibility. It is reasonable therefore to make precise analysis of each to enable a competent court to render an accurate judgment and conviction.

Child labour is a pretext for exploitation potential capacity of future generation by current generation. Child laborer misses the time of personal development. Various methodes have been applied by legal systems to fight against child labour. Choice of legal system of Iran, forbidding the labour of child under fifteen without exception, seems incompatible with cultural and economical realities of society. Putting limitation to all types of work and forbidding slavish one, in a responsive manner, is more practical way to fight against child labour. Elements of slavery are: 1.exercising any or all of the powers attaching to the right of ownership over a human; 2.not having private time; 3.doing the worst form of labour. Put an end on child slavery requires crucial will of government to reform legal system via active monitoring, responsibility of private sector for child labour, review child legal status and distinguishing between types of work conditions and minimum employment age.

In addition to common stock, the most important source of financing public and private companies, preferred stocks are other important securities. What differ between these two stocks are the privileges and features of preferred stock that common stocks don’t have. Nowadays, such a share is an appropriate tool for investing in emerging or emerging companies as well as companies facing a financial crisis, and investors will not be willing to invest in them in the normal way without obtaining specific rates. Nowadays, such a share is an appropriate tool for investing in emerging or emerging companies as well as companies facing a financial crisis, and investors will not be willing to invest in them in the normal way without obtaining specific rates. While these benefits are wide and varied, Iranian legislator, just in clause 2 Article 24 commercial code bill, define this type of stock but don’t speak about the privileges and practice of them in details. In this descriptive and analytical study, the authors have attempted to study the nature and typology of preferred stock in pioneer countries and then, suggest strategies in order to improve the legislation or jurisprudence in this field.

New-a-day, the stability of companies activities demands a kind of balance between interests of those groups who have an efficient communication with company. Some of these groups participate in the process of production and profit making. Some others are only under social power of company. However, what this article is looking for, is to find how this efficient communication occurs between a company and its stakeholders.A Deliberation in Relation Between Companies and their StakeholdersAbstract:New-a-day, the stability of companies activities demands a kind of balance between interests of those groups who have an efficient communication with company. Some of these groups participate in the process of production and profit making. Some others are only under social power of company. However, what this article is looking for, is to find how this efficient communication occurs between a company and its stakeholders.Keywords:Balance, Stability, Social responsibility, Companies Success.