نشریه حقوق تطبیقی (نامه مفید)
سال ششم شماره 1 (پیاپی 11، بهار و تابستان 1398)

Moral luck, which is a new concept in moral philosophy, challenges our ordinary moral evaluation. According to human's moral intuition, people are only evaluated for their controllable behaviors. However, while people have no control over results of their behaviors, results are effective in our moral judgments. This issue, in its turn, raises an essential question in criminal law: are people responsible for their behaviors in cases they have no control over the results of their behaviors? While theorists who agree with moral resultant luck are trying to theorize the existing and prominent practices in penal codes, others who oppose this idea attempt to neutralize the role of results in criminal responsibility. As a result, they believe that criminal legal systems should impose equal punishment on offenders who commit the same conducts regardless of different results as far as they simply stem from moral luck. Consequently, if the proponents' arguments in favor of moral resultant luck are persuasive, the prominent approach in criminal law would be established. On the other hand, if the opponents' opinions against moral resultant luck are stronger, then significant changes would happen in penal code and criminal titles.

In case of doubt about the meaning of a written contract term, not individually negotiated, the terms is interpreted in favor of the person who contracted the obligation and against the person who stipulated it, because a person who produces a document had the capacity to avoid ambiguities. This principle has been clearly recognized in article 6 of CESL and article 8 of UPICC, and paragraph 3 of article 8 of CISG accepted this principle implicitly. Although this principle is not explicitly regulated in Iranian law but according to some principle of contract law like: the principle of fairne ss and equity, principle of goodwill, principle of observance of public order, principle of causation, principle of freedom of wills and principle of lack of misrepresentation, we can infer the Contra Proferentem Doctrine.

In criminal justice for juvenile offenders in Iran and England, one of the most common ways to deal with offending children and adolescents is, to keep them in closed places. However, the main difference between these places and ordinary prisons is expressed in this institutes' goal that is the prevention of future crimes for juvenile and reform of their behaviors. Therefore, the imposed environment should be inclined using education plan for upbringing children and adolescents that are potentially problematic and made them an effective learning environment for crime prevention. This article discusses the effective role of imposed and effective learning environments and these environments' problems for educating juvenile offenders with a comparative approach in Iran and England. The findings of thi s study show that, although education-based programs are implemented in both countries with focusing on the prevention of juvenile/youth delinquency, but the status of detention centers is still far from an ideal place.

When the property situation of the debtor is getting worse, the debtor may deliberately make transactions that would be detriment his/her creditors and deduction of the public security debt. The creditors, in such case, due to the statute, can interfere in the Issued possessions by debtors. Because this possession, may impress the public security (debt public security) and it caused weakness of this public security. In some Arab countries, including Egypt and Lebanon, the legislators have predicted rules to protect creditors; that gives to creditors the opportunity litigation absence of influence claims of debtor's possessions. The result of the absence of influence claims of debtor's possession in the Egypt and Lebanon right is equal to absence of ability to refer to the contract in Iran law. An institution that has entered to Iran’s rights from other countries' right, but It is not predicted directly and as a criterion in the laws of our country, and only in limited cases, the legislator, has ordered to the absence of the ability to refer some possessions and transactions, explicitly or implicitly, for instance we can refer to the civil code of Article (218) and Article (4) of law in the manner of implementation of financial convictions. Absence of influence claims, though, have similarities with  the idiomatic absence of influence, but, it is different from it and has some conditions and special effects that the most important of its condition is the bad intention of debtors to transf er of property.

Globalization of law is one of the most important challenges for the legal systems of countries. The harmonization of legal rules in the field of international trade agreements and their interpretation is also one of the important effects of the globalization of law. In the light of this, the European Union's Common Civil Procedure Act, as one of the most fundamental European countries' efforts to further harmonize legal rules, especially in the field of contracts, has begun almost three decades ago and the argument for specifying the valid criterion of interpretation as a concrete example of the impact of the globalization of rights on the system governing domestic contracts in the formulation of the said civil law is clearly significant. English law has its own interpretative rules that have been distinct from those of written law and recently under the influence of the globalization of law, by adopting a moder n approach based on the system of interpretation; it has amended the interpretive rules of written law. Written law has also eliminated some aspects of its dispute over the globalization of law, which can facilitate the achievement of a common goal, the formulation of common civil law and the adoption of a uniform procedure for the interpretation of international commercial contracts. In this research, the dimensions of this issue are discussed in detail.

The right to sit-in is one of civil liberties and a negative one. Sit-in is an organized and peaceful assembly to say opinions in which the people sit in a special place to reach their goals. Although the constitution of the Islamic Republic of Iran, in particular, did not mention the word sit-in, the term sit-in has been mentioned in the statutes and regulations on numerous occasions. In fact, freedom of sit-in is one of the collective liberties and stands under the principle 27. According to the constitution, not violating the fundamental principles of Islam and not carrying arms are the conditions of a legal sit-in.
This paper, pays to the conceptual analysis of sit-in and its historical, theoretical and legal foundations, by a comparative approach to the notion of freedom of assembly and its conditions then examines the legal status of freedom of sit-in and its condi tions in the legal system of the Islamic Republic of Iran.

Law principles count as humanity principles in their nature and essence. Usage of available principles for humans has to include dignity which under no circumstances should be considered as a tool. However, in some cases, theories, laws, and available procedures disregard human’s dignity and status in the legal system. For instance, Yakoobs’s theory in criminal law for enemies which has caused theoretical contention amongst philosophers during the last two decades can be mentioned to combat existing insecurity and in particular terrorism. In Yakoobs’s opinion, if an individual contravenes criminal laws deliberately, they will get back to their normal life and cannot be considered as a citizen anymore; therefore, the government is allowed to pass specific laws that are different from ordinary laws for citizens to prevent, avenge, and symbolize. Yakoobs’s theory confronted criticism apart from eliminating legal principles from the human image, violation of human dignity, and not paying attention to morals in the relation between citizens and the government. In this article, the authors analyzed the concept of “criminal law f or enemies” from Yakoobs’s perspective and pointed out its criticisms after the proposed German hypothesis of “legal government” based on Kant’s notion. As a result, there is no logical reason for accepting Yakoobs’s opinion due to the fundamental controversy between his theory, codes of ethics and human dignity and its detrimental effects on defendants and criminals’ rights.

Share redemption occurs when a company rebuys its shares at a specific time after it had sold them to another party.  After redemption, these shares transform into treasury shares and will remain as such until resold again. The ways of redemption which effect shareholders’ rights include:  Repurchase from Market, Off-Market Repurchase, Fixed Price Tender Offer Repurchase and Dutch Auction. The redemption has an influence on share’s financial and management rights and the company, as the treasury shares’ owner will lose most of its shares’ rights by explicit stipulation of acts and most legal principles.

The theory of the conversion of null act into valid act is one of the most important and fundamental solutions to the global policy of rescuing void contracts. This theory first became legal in Article 5 of German Civil Law and is currently accepted by most contemporary legal systems, but unfortunately, it is not yet recognized in the Iranian legal system. There is a great deal of evidence in Imamia jurisprudence which shows that the acceptance of this theory in Imamia jurisprudence and consequently in the Iranian legal system is devoid of any objection.
According to the writers, common sense accepts in cases where contract subject to mutual agreement is void, and at the same time, that contract is subject to the elements of another contract, according to the court order, the effects of the new contract can be applied to that null and void contract. At present, most intellectuals agree with this theory. The examination of the legal documents of countries such as Egypt and France shows us that it is not so difficult to accept this theory in the Iranian legal system because the legal system of Iran and Egypt has been in written and codified form. In the legal system of Iran, the conversion follows the teachings of Islamic law, and the effect of the French law on civil and commercial regulations of both countries is evident.

Comparative Study of the role of ‘Time’ in the formation of Customary International Law, shows the different, contradictory and even conflicting ideas. Being necessary the existence of the objective element, i.e. general practice, and the subjective one, i.e. accepted as law, so called opinio juris, for the  formation of such rules in international law, the present paper seeks the following question that what and how is the role of ‘Time’ factor in formation and subsequently identification of rule of customary international law? As international judicial decisions and teachings of the most highly qualified publicists of various nations have been considered as the subsidiary means to identifying legal rules, the present paper studied the jurisprudence of International Court of Justice and teachings of the most highly qualified publicists of this field, and studies of International Law Commission reporter as the most important entity in the codification and progressive development of international law and figured out there has been a conceptual evolution in the said conception. Explaining the classical and curren t ideas in question, distinguishes the outcasted concepts from the accepted one and finds that the time factor affects the two said elements in Customary International Law. The time factor is necessary in the formation of such rules, but the period of this time is and must be different by virtue of each case.

In an event that more than one factor is involved in the occurrence of a loss to another, after having obtained that two or more factors caused a loss to another, each of them will be responsible for the compensation of the victim. But how is the share of responsibility for each factor determined and on what basis can each share be determined and the amount of damage distributed? Three criteria have been raised in this regard, distribution of responsibility in equality, distribution of responsibility by the extent of influence and distribution of responsibility by the degree of culpability. In this paper, by describing the various assumptions of multiple tortfeasors,  each of these criteria has been investigated according to the arguments and legal principles and objectives of civil liability, and it has been proved that the primary principle is the distribution of responsibility to the extent of influence, and with the lack of evidence and proof for the difference in influence or equivalence of the actions of the responsible actors in causing loss, the distribution of responsibility in equality is applied.

The criminal liability of legal persons is the consequence of a legal personality and the result of insufficiency of the legal and disciplinary sanctions in controlling dangerous behavior and reforming their criminal policy. In addition to the importance of understanding such responsibility, it is also important to solve the structural problems that arise in this area. For instance, by what mechanism, can they attribute criminal responsibility to those persons who are devoid of human attributes, such as mind and soul?  Is such an attribution possible, through the behavior of their human representatives, (indirectly) or through organizational culture and systemic defect (direct), or both, who are the wise and the guiding minds of the legal persons? Are they delegates or are they beyond them? What are the conditions for the criminal responsibility of these people? Are the crimes attributable to them intentional or unintentional, or both? What are the restrictions of financial and non-financial sanctions impo sable to them? Are their rebates and exacerbations under the influence of some respects and the qualities? In this paper, it has been attempted to evaluate the criminal systems of Iran and Germany in the context of the discussion and to answer the above questions, using a combination approach.