مجله مطالعات حقوق تطبیقی
سال دهم شماره 2 (پیاپی 20، پاییز و زمستان 1398)

Commitment to providing information and even advice to the recipient of facilities (consumer) after the industrial revolution and consequently, the formulation of the basic principles of consumer protection is the supplier's duties and in consumer credit contracts that are most commonly used in the banking system, this commitment also has a fundamental place. However, in contrast to complicated Islamic contracts in Iran bank system, they have no commitment to advice and guide the consumer and this matter has effected the free and conscious will of consumer. So the question arises whether the consumer who receives no information and advice, can express his will freely and consciously and in such circumstances, the contract will essentially be concluded? Therefore, in this paper, the task of providing information and advice to the provider of credit has been defined. Regarding the acceptance of consumer rights and the enforcement of consumer rights law Approved in 2009 in the banking system we conclude with a comparative study, that banks should be based on good faith and the need for mutual agreement the acceptance of the task of consulting and providing responsible credit has provided clear and complete contractual information to the consumer to contract balancing, return the consumer credit contract.

With the advancement of technology, the production of new products, and the creation of new activities, the community is sometimes exposed to serious risks. If these risks occur, considerable costs should be consumed to compensate them and, sometimes, the damage is irreversible. In the case of facing such dangers, the precautionary principle and the adoption of precautionary measures are deployed. This principle has been used in recent decades in domestic law, international procedures, and judicial procedures. In this article, by reviewing different votes issued in this regard in foreign courts, in particular, French courts, an attempt was made to examine the different aspects of this principle. The principle of precaution, as a legal and political principle, is used in two situations: 1) before the occurrence of damage 2) after the occurrence of damage. Thus, given the dual function of the precautionary principle, the two preventive and compensatory roles can be assumed for this principle, respectively. However, it is worth mentioning that the obligation to compensate for financial losses is only possible in the second case. Key words: The precautionary principle, Civil liability, Preventive role, Compensatory role

Participatory democracy is considered as one of the democratic models of developed countries applicable to small local administrative contexts such as cities through the instrument of local or municipal referendum. In the Italian legal system these processes and tools exist, and the study of scientific foundations, rules and practices of all kinds of local and municipal referendums can be a good example for the scientific community and the developing legal system of Iran, which has so far been deprived of this instrument. The importance of the research is due to the possibility that the correct description of participatory democracy and municipal referendums in Italy can be an example for the Iranian system, given that answer the question that can municipal referendums raise popular participation about governance and can they help to stabilize democracy and decentralization or not, it’s a help to discuss methods for strengthen democracy in Iran. Finally, it will be demonstrated that participatory democracy, and in particular municipal referendums, will in some way guarantee legal development, popular participation, consolidation of the democratic system and decentralization in Italy, and developing countries such as Iran, providing strengths and weaknesses points are recognized, can benefit from this model and can promoting their governance components.

In the history of the law of torts, there is damages that arising out of things. Some of these damages are because of things’ actions, such as buildings collapsing, animals' behaviors, and cars accidents and so on. At the first, who have liability for the victim’s injuries and damages are the proprietor and possessors; but in pursuit of technical developments of the era, we shouldn’t ignore liability of producers and designers of these products. The legal aspects of the liability for smart things that are artificially intelligent, are more complicated than traditional one and only when AI has been regarded as a tool, we can apply traditional rules to these human modern creatures. So, when AI has autonomy and authority to decide about its personal affaires, it would have personal liability for damages. But some questions, such as recognition of machines faults and negligence and the manner of compensation, can be arisen. So we must grant legal personhood to autonomous machines to consider it as a legal responsible agent.

Abstract Nowadays, fair elections it is not possible without controling the flow of money in election campaign because of the increasing role of money in the political process. In this regard, political financing systems have been established to regulate the entry of money into election campaigns through several regulatory instruments and mechanisms .An overview of Iran's eletion laws reveals a tangible gap in the political financing system. Although Iran's election laws have been frequently amended, the role of money in election processes has always been neglected. Whereas, recently, the role of money in election processes is more prominent than before; and, this issue puts an emphasis on the necessity of having a favorable system for financing election campaigns in Iran. One of the most important reasons is overgrowth of election expenses And, another reason is the repeated election-related financial scandals in Iran which are the kinds of scandals that motivated election-related financial reform movements in other countries.Taking into account Iran's political, social and cultural context, desired System for Financing Of Election Campaigns is a mixed system of modeling the experiences of other countries which is relied on individual and private contribution and also governmental subsidies for individuals and political parties which is more dependent on individuals. Therefore, the distribution criteria of these public financial sources must be determined precisely, fairly and clearly. Prohibition and cost constraints are the main regulatory instruments along whit transpareny as a basic element for observation of financial transaction. This is the responsibility of a specialized supervisory unit to make financial transactions clear. Stablishing a desirable political financing system in Iran requires changes in other areas, in particular free access to information,conflict of interests and changes in the general election policy of the system. Keywords: financing , good system , regulatory instrument , election campaign

Open source approach applying in software context has been a positive and efficient experience. Nevertheless some doubts about efficiency and desirability of this legal approach for legal protection of biotechnological innovations has been mentioned. Meanwile, On one hand, first and most fundamental action in assessment of applying this approach in biotechnology context, is explanation, analysis and compliance of its basics with innovations of this field; On the other hand based on practical notion of subject matter, practical basics particularly innovation development model has a special situation in aforementioned assessment. Purpose of this article is analysis and assessment of capability for compliance and applying open source legal approach innovation development model, which has been known as user innovation theory, in biotechnology context based on library research method with statistics and real examples related to subject of article. Based on the results of this research, in biotechnology context, all of user innovation theory conditions exist and in conclusion this theory, as open source legal approach innovation development model, is compliable and applicable in relation to biotechnological innovations.

Abstract Today, paper-based letter of credits are common, despite the expansion of modern technology and communication. By considering the latest achievements in communication technology, and to slow down the decreasing popularity of documentary credits, the International Chamber of Commerce (ICC) ratified the Uniform Customs and Practices for Electronic Documentary Credits (e-UCP) to encourage traders and bankers to employ electronic letters of credits (e-LCs). However, the current technical and legal problems of e-UCP have made the e-LCs useless in international trade. The current study presents a comparative analyses of e-LCs, in order to find the barriers of e-LCs expansion in international trade by using cloud computing. Today, paper-based letter of credits are common, despite the expansion of modern technology and communication. By considering the latest achievements in communication technology, and to slow down the decreasing popularity of documentary credits, the International Chamber of Commerce (ICC) ratified the Uniform Customs and Practices for Electronic Documentary Credits (e-UCP) to encourage traders and bankers to employ electronic letters of credits (e-LCs). However, the current technical and legal problems of e-UCP have made the e-LCs useless in international trade. The current study presents a comparative analyses of e-LCs, in order to find the barriers of e-LCs expansion in international trade by using cloud computing.

Du to “collateral contract” doctrine which has been accepted in English law, to breach pre-contractual statements, contractual liability should be regarded. It has been invoked in many cases by courts for its advantages and uses. Implied contract accompanies the main contract but at the same time independent of the main contract and its terms are a part of the negotiations that are done in order to conclude a contract. Implied contract guarantees the quality of goods and services mentioned in the main contract. The benefactor of the pre-contractual statements can be either of parties or a obligee of implied contract. Through having such a contract if he has a loss, the damage will be compensated independently. Implied contract is not known in our law but there are some similar found institutes by which it can be compared. Finally, it was concluded Iranian law has the capability to accept implied contract without any obstacles.

Violence against women has several types that most notably is domestic violence. Previous studies have shown that violence against women is not only influenced by individual (biological and psychological) factors, but sometimes by the cultural context. In fact, culture, which by its nature should facilitate the problems of (women) life, sometimes becomes a cause of harm or problems. For example, some behaviors that are considered violent according to legal and criminological criteria, are normal in the cultural context, and women and local society members have also accepted them as a norm. In this article, domestic violence against women was analyzed based on the factor of culture. The main question is “Does the normalization of violent behavior in a particular culture, remove the legal and criminological character of violence?” To answer this question, in a qualitative study with a case study method, the marriage patterns of the Levirat and Sororat in Guilan were analyzed. The findings showed that this pattern of marriage, which has cultural support and is commonplace by the family and members of the local community, imposes multiple harm to women. Therefore, from a legal point of view, such a cultural tradition can be an example of violence, except in cases where the parties are factual free to marry. It seems when violence is created and supported in the context of culture, the most effective solution to it is to change cultural patterns that no longer have the necessary function in society.

Children on the basis of non-perfection in their growth and development are more potent for vulnerability and need protection and attention. Disabled children based on their physical or mental impairments need more and special protections. Convention on the Rights of Persons with Disabilities (CRPD), Convention on the Rights of the Child (CRC) and Protection of Disabled Act2018 are legal documents which concern disability in Iran. The first one is a general document that considered children in Article 7. The second one is a specialized child rights documents and its 23 article belongs to disable child. The third one also has a general approach and child-related issues are inferred by the articles’ interpretation. This article aims to analyze three documents and to find how the BIC is considered. The findings show that although the Protection of Disabled Act is ratified recently and after Iran’s accession to the CRPD, it has a general and non- expert approach with many gaps in this regard. Besides, the approach of CRC and CRPD are to empower disable child while Act 2018’s approach is solely to protect disable child.

The situation of human rights in Iran has been raised both in Human Rights Commission and its successor Human Rights Council after the Islamic Revolution in Iran. Three rapporteurs i.e. Ahmad Shaheed, Asma Jahangir and Javid Rahman have so far been appointed to report on the situation of human rights in Iran which in result seven reports have been delivered to the Council and the General Assembly. The main idea in this article is to find an answer-irrespective of the claims made by Iran on the politicized and selective orientation taken by the Council in appointing the rapporteurs- to the question that what kind of relation is dominant on the reports of the special rapporteurs on the situation of human rights in Iran and whether the human rights framework in Iranian legal system is compatible with international law system or not. As hypothesis of the article, the authors believe that the relation between these two is a challenging one. In some cases –discussed under the title of challenges as to the bases of Iranian legal system- the challenge is so high that in no way any reconciliation between the reports and Iranian legal system is imaginable. In other cases the challenge is not that much critical and is mainly based on misacting -or not complying with- the Constitution or badly enacted Acts.

Administrative judgment is functionally very similar in Iran and Lebanon. In the highest level of administrative judgment in these two countries, there are two authorities of “Administrative Justice Court” and “the Council of the State”. In both countries, in lower levels of administrative hearing, the specific authorities have special positions and do the dispute resolution and decision-making in various subjects of administrative affairs. These authorities have plenty of types and they do not follow a single judicial law order. The legal system of Iran encounters a chaos in the field of judicial review of “Administrative Justice Court” in the way that sometimes the general courts are the ultimate authority to hear the contest of awards and sometime the “Administrative Justice Court” does so. The AJC does not take a unique judicial procedure in processing the verdicts of these authorities and a divergence of decisions is observed in this regard. The main purpose of this research is to compare the judicial review on the decisions of the specific authorities of administrative hearing in these two legal systems. The methodology of the research is comparative and descriptive- analytical. The most importance finding of this study shows that the “Administrative Justice Court” of Iran unlike the “Council of the State” of Lebanon, has not accepted its competency about all the specific authorities of administrative hearings.

Fiscal system of upstream petroleum contracts is a set of tools and elements such as royalties, bonuses, taxes, production sharing and fees that determine how the revenues from petroleum resources are divided between the International Oil Companies (IOCs) and the government. Which fiscal tools and elements to be employed in a petroleum contract depend on numerous considerations. By implementing a descriptive-analytical method of research, this study aims to review the main characteristics of fiscal arrangements in some of the major oil-producing countries and represent the effective factors on host governments' tendency in applying different types of fiscal features in their petroleum contracts. Subsequently, the status of the new Iranian Petroleum Contract (IPC) to be analyzed in this respect. So from this point of view and regardless of the type of applied petroleum contracts (i.e. concessions, production sharing contracts and risk service contracts), there are many considerable differences in the nature of fiscal tools and elements applying in petroleum contracts of different countries (including the developed and industrial countries compared with the developing countries) which reflect a country's economic conditions and degree of its dependence on oil revenues and also supervisory power of government.

The value of findings of comparative studies and their efficacy largely depend on research methodology. Because of this, one of the main topics in comparative law is understanding the existing research methods used in the literature. Questions and topics related to research methods in comparative law were raised for the first time in the late 19th century by German lawyers. It was then followed and expanded by researchers in other countries, especially France, Italy and the United States; and along with the development of other sciences, new approaches to comparative law were increasingly developed. In Iran, however, the field has been very limited and largely confined to practical and scattered advices on how to do comparative law research. In this paper, I try to introduce different qualitative and quantitative methods of comparative law research, with the focus on the state-of-the-art methods. I then describe the main steps necessary to comparative law research, existing and potential problems at every stage and ways to deal with them.

Waste crime is a new title in the literature on criminal law, which has a significant part of environmental crimes. In this context, smuggling and illicit disposal of nuclear waste are among the most important aspects of waste crime. In fact, the radiation power of nuclear waste and its environmental impact have made it necessary to combat smuggling and illicit disposal of nuclear waste. In this regard, combating against the aforementioned acts require that the legislative system organizes in a proportionate manner. On this basis, it is appropriate to establish clear and transparent rules for the export, import and disposal of nuclear waste and criminalizing each of these acts of smuggling and the illegal disposal of nuclear waste with the creating of proportionate punishments. Therefore, by studying the Iranian and federal legislation of the United States, it was discovered that Iranian legislator, in addition to not creating an updated and integrated regulation on nuclear waste management, has not yet to make appropriate criminal responses to the illegal disposal of the wastes. On the other hand, the federal legislator of the United States has adopted an appropriate approach to both nuclear waste management and the smuggling and illegal disposal of them. In the meantime, during this paper, it attempts to study the criminal law of Iran and the United States about the smuggling and illicit disposal of nuclear waste.

This paper set out to this question that the amendments to the rules of deprivation of nationality after the ISIS terrorist attacks and the emergence of the phenomenon of foreign fighters in UK, France and Belgium, are to what extent conformable with the international law provisions. Hence, the common grounds for deprivation of nationality and the international law governing it were initially analyzed alongside an inquiry into the concept of deprivation of nationality, followed by a review of recent terrorist attacks in these countries (2012-2016). Finally, the amendments made to the laws of deprivation of nationality and their legal nature were evaluated. The three aforementioned countries have implemented reforms to expand the powers of deprivation of nationality. However, these countries have taken different paths in their reforms and, therefore, their compliance with the provisions of international law have not been the same. UK and France, while expanding powers of deprivation of nationality, have tried to observe the principle of avoidance of statelessness, unlike Belgium which has made no provision to guarantee the avoidance of statelessness in its reforms.

In election law, it is required conditions how to nominate a candidate in an election and the category of "candidates for elections"is one of the most important issues in electoral systems. This situation reflects the importance of the issue of the conditions of the candidates. Look at the electoral system in parliament of Islamic Republic of Iran and the Wolesi Jirga of Afghanistan indicating that the legislator of both countries, has predicted the conditions for the parliamentary elections. This paper, from a comparative perspective and using the research method analytical–descriptive, has tried highlight while examining the similarities and differences between parliamentary elections: parliament of islamic republic of Iran and the Wolesi Jirga of Afghanistan, Major damages caused by the electoral system of the Wolesi Jirga and the Islamic Consultative Assembly. In the end, it has been concluded that first, Iran's electoral system about candidats has determined at the same time, the"objective" condition, such as: age condition and the "subjective" condition, such as: belief in Islam. But the Wolesi Jirga electoral system has followed "objective" terms. Second, Legal system of Iran by identifying the condition of having a degree of education is leading of the electoral system in Afghanistan. In return, Afghanistan's Wolesi Jirga electoral system with prediction cluse: "Payment of a specified amount and approval of a thousand people” for the candidates has prevented from imposing a futile expense to “bite- almale” and from this point of view the electoral system of Afghanistan is far ahead of Iran's electoral system. Third, the two systems have common borders in terms of citizenship, age and non - criminal record.

Breach of contract and damages for it are among the main discussions in the law of contracts. The breach might occur in several ways such as non-performance of contract, delay in performance, deliver of defective goods. Common law system has developed different remedies to face with the breach, of them the most important is damages. In a general division, damages are divided into two groups: loss-based damages and gain-based damages. The most important kind of damages for breach of contract are expectation and reliance damages which fall within the loss-based damages group and seek to compensate the plaintiff. Gain-based damages, however, aimed at benefits the received by the defendant from his breach and not at the loss suffered by the plaintiff as a result of the breach, and is designed to deprive the defendant of those benefits. The article tries to introduce this remedy in Common Law system and to give a brief account of its position in Iranian law. The last discussion shows that this damages is acceptable in a narrow scope and to such an extent that it is inconsistent with the proprietary right of the innocent party.