نشریه حقوق تطبیقی (نامه مفید)
سال ششم شماره 2 (پیاپی 12، پاییز و زمستان 1398)

Nowadays, reasonability has played an important role as one of the legal principles in European contract law. This rule is recognized as one of the most important principles of the contract law because of wide usage in many international documents such as Convention on International sale of Goods, principles of European contract law and proposed common law of European trade. Reasonableness means that what a normal person does in a similar situation which has wide effects in concluding, enforcing, and interpreting a contract, and complementing and limiting the rules of contract. By considering international documents and Iranian law, we find that Reasonableness in Iranian law, unlike European law, is not recognized as a well known legal principle. However, with the establishment of Reasonableness examples in Iranian law and also with the confirmation of the rules of transactions in sharia and the approval of conventional procedures in most cases, especially the great importance of custom and habit, the question arises whether in Iranian law like International documents reasonability is recognized as a legal principle. In this article, we consider this question.

The growing threat of pornography and its devastating effects on the family, women, children and society, in general, have led various countries, including Iran and the United States, to criminalizing this phenomenon. According to Iranian criminal law, some behaviours related to pornography have been criminalized with the approach of the absolute prohibition. In terms of means, pornography has both a visual aspect and an extension to the audio-visual content. With the spread of this phenomenon, the United States legal system has criminalized many behaviours in the field of child pornography and provided relatively severe punishments, including the death penalty and imprisonment. In the American legal system, child pornography is only a visual aspect and involves explicit sexual intercourse. In this study, in order to get acquainted with the various aspects of this phenomenon, the historical course of federal laws and the elements of this crime in both legal systems are analyzed to identify the shortcomings in the rules and even eliminate those gaps. In this way, appropriate measures can be taken to address this global phenomenon.

European Union alike other international organizations rooted in an intergovernmental treaty in which member states limits their sovereignty powers in favour of that organization thereby given certain competences could achieved the common objectives. A particular trait of this structure is that the EEC/EU treaty has created its own legal system and is consequently capable of producing direct effects on the relations between member states and individuals. ECJ as authoritative interpreter of the community treaties following to this persuasive characterisation asserts principles of direct effect and supremacy of community law. Perhaps, it’s tends to introduce ‘Constitutionalism beyond the State’, i.e., EU constitutionalism. The German Federal Constitutional Court confirms sui generis nature of EU but it’s not willing to assuming a power which has not been conferred on it. Furthermore, it’s unlikely to FCC to endorse precise and indisputable supremacy of community law. The trend towards European unity oriented national sovereignty of member states is important and challenging issue that this article with descriptive and analytical approach by emphasis on the views of the German Constitutional Court has addressed.

One of the most important cases in the contractual field is breach of the contract by a contracting party and the resultant damages. Regarding the fact that injured party has incurred some post-breach expenditure like the expense of returning the goods, legislators have passed some Acts in order to support the injured party and ensure the economic relationships. This legislative procedure can be seen in the Common law, Civil law and Islamic law systems. The question can be asked in relation to the incidental damages, in relation to these damages nature and the broad of compensation. In conclusion, this article has been comprised in incidental damages, in comparison of legal systems get to the end that in all legal systems, principally has been thought some solution to compensating of incidental damages. Of course with some diversity in the broadness of compensation will be presented in the article text.

Reason (al- ‘aql) or independent rationality (al-mustaqillat al-‘aqliyya) are listed as reliable source of Shari‘a precepts in Shi‘i Osul al-fiqh (legal reasoning); Yet, it has played a minor role, if any, in the actual inference of fiqh (Islamic jurisprudence). Having this in mind, the present article explores the major causes of the restrictive role of rationality as a source of law and the ways to surmount it. In so doing, Rawls’s arguments in his ‘Theory of Justice’ adumbrates an analytical framework whereby we can remove the ambiguities surrounded the ‘goodness of justice’ and ‘badness of cruelty’- the only two propositions of independent rationality in the mind of Shi‘ite scholars. Employing Rawls’s methodology in osul al-fiqh assists us in developing the role of independent rationality as a real source of law.

Through the peaceful settlement of disputes outlook, the Joint Comprehensive of Action (JCPOA) deals with as a turning point. The issue of granting access to and monitoring via JCPOA on the Iran’s nuclear activities is growing increasingly sensitive in Iran. Incorporating two specific mechanism in JCPOA, routine and unannounced inspection, upon which the International Energy Atomic Agency (IAEA) is rested with to monitor such an access. The routine inspection in JCPOA is similar to an extent degree to the same inspection included in the IAEA monitoring system of the Safeguard Agreement, Additional Protocol and the modified Code 3.1. The innovation has been occurred in the JCPOA is pertained to the transparence- derived activities. The challenging, and somehow discriminating, point which may be made here is that the unannounced inspections in the JCPOA is capable of offering an adequate facilitation for potential leaking of Iran’s nuclear confidential information. With regard to reviewing JCPOA’s contents, the paper would make an examination to the related instruments in order to reach a conclusion as to the question how the method and qualification of access in the JCPOA would be.

Misuse of the rights granted by law –i.e. patent misuse– is a major concern of authorities. Patent misuse happens when the owner(s) of a patent attempt to benefit from it beyond the scope envisaged by law. Expanding the scope of a patent, cases of Patent-tie, and extending the duration of a patent through licensing are the most prominent examples of patent misuse. The United States’ legal system and its patent laws have tried to forestall such acts by developing the independent doctrine of “Patent misuse”; however, this doctrine is so integrated with the foundations and principles of competition law that it has partly lost its identity and independence. Nevertheless, patent misuse is still used as an effective measure in patent infringement cases. As for Iran’s legal system, the aforesaid doctrine has not made its way into the laws in an explicit manner; however, instances of regulations against patent misuse behaviors can be spotted. All in all, it is evident that our country’s patenting system has paid no heed to this doctrine and, thus, has missed the opportunities and advantages it could offer. The present paper seeks to investigate the implementation of this doctrine in Iran’s very legal context while analyzing the approaches regarding the doctrine’s connection with competition principles, explaining the concept of patent abuse along with its history and development, and pointing out its examples in the United States’ legal system as its place of origin. Moreover, the shortcomings and inefficiencies of Iran’s patenting and competition system with regard to this issue are also revealed and certain solutions are put forward for benefiting from this doctrine’s potentials.

Nowadays with the advancement of technology and communication tools, the conclusion of contracts has changed so that many people tend to go through new communication tools to engage legal actions. The conclusion of the marriage has been a significant expansion in cyberspace. Men and women might want to announce their marriage through internet service audio-visual and written internet services. In this study, the main question is that how marriage influence the cyber environment Shiite and Sunni jurists and law in Iran? According to famous Shiite and Sunni jurists, the offer and acceptance in a marriage contract must be verbal; Therefore, There is no doubt about the validity of cyber marriage through audio-visual internet services; On the other hand in the written internet services with proof of the invalidity of consensus the most important reasons of the opposition of written marriage were answered verse refers to “Keep your promise”, some verses about written contract as well as the openness and transparency of the term, the validity of the marriage in cyberspase has sterengthened. At the same time, in spite of the necessity of the presence of witnesses in the marriage contract, according to the public jurists, it is still possible to valid cyber marriage with using Sunni jurisprudential texts. In addition, with examining e-contracts we found that to establish security in cyberspace can be done through the encryption process and electronic signature ensured the identity of both parties.

Commercial documents are financial instruments indicating money and cash which can be transmitted to others by countersigning. To pledge financial instruments is also a legal action through which, the merchants usually pawn their commercial instruments at a bank and the like to secure their debts or obligations or to earn credits. This model of pledging is one of the most urgent and serious needs in the local or international economic and commercial relations. In many countries, the legislators have provided, in their laws, pledging commercial documents by “countersigning”. In the Iranian law, with regard to the clearness of articles 772 and 774 of civil law, which are based on the famous Imami jurisprudents’ views, the validity of mortgage contract is dependent on the mortgaged property delivery and its being definite object and therefore, to pledge commercial documents is not acceptable. However, with paying attention to the necessity of correct interpretation of laws based on the daily needs and acceptability of the customary delivery as well as the importance of the commercial and secondary laws, we can consider pledging most commercial documents as acceptable. In Egyptian law, too, pledging commercial documents has been accepted under some conditions.

Justice generally means to put everything in his suitable place for giving everybody his right. This definition is the junction point of all difinitions in all sciences and compliance with distributive justice and commutative justice and shows the legislator’s attitude in putting every things in his right place (in the domain of legislation), also shows law and judicial approach for giving every bodies right (In the realm of execution). In this sense contractual justice means combination of this two kind of justice and lead to the mixture of public intrests and individual intrests and provids backgrounds to order and contractual. In french law, combination of justice and security is via prohibition of abuse if right and lead to contractual justice, in common law obligation to observe good faith and not disclosing information and observe the rule of fairness and prohibition of omposed condition lead to contractual justice. Iranian law existence of the rule of La zarar and excellence of it to domination rule and also Taghlib which means that public interests are more important than individual interests implemented as distributive justice and is enough for supervision of government. If the parties agreement breach this regulations, about the public intrests the La zarar and Taghlib will govern the contract and if the agreement breachs the individual intrests wich is because of power of one party, La zarar rule avoid losses and organizing contractual justice.

According to the solutions provided in the law, the US Federal Reserve is one of the most independent central banks in the world. In Iran, in practice, the composition of the members of the Monetary and Credit Council and the accuracy of the legal conditions for dismissal and appointment of the Governor of the Central Bank and the review of changes in the management of the Central Bank after the change of governments indicate the Central Bank's dependence on the government. From a procedural point of view, a detailed study of the negotiations between members of parliament and the theories of the Guardian Council and the approvals of the Expediency Discernment Council, while passing the relevant laws, shows that there is no correct idea of the central bank's duties and its independence. Regardless of the central bank's domestic goodwill, internationally, the central bank's independence makes it impossible for other countries to seize the central bank's foreign assets under the pretext of the central bank's dependence on the government. In this article, an attempt has been made to compare the independence of the central bank in Iranian and American law with a comparative approach.

The aim of this article is to introduce and compare the views of some Muslim thinkers in philosophy of Islamic Jurisprudence (fiqh) regarding the relationship between morality and the positive religious law (Sharīʿah) with the views of some Western thinkers in philosophy of law regarding the relationship between morality and the positive secular law. In each camp we have two major rival views to be compared, i.e., Moral rationalism vs. the Divine command theory, and Natural law theory vs. Legal positivism. Although each of these theories has been variously formulated and interpreted over time, the central tenet in Legal positivism is that there is no necessary relationship between morality and the content or form of law, whilst Natural law theory is grounded on the acceptance of the existence of just such a relationship. On the other hand, in philosophy of fiqh, the various formulations of the Divine command theory are centred on the dependence of morality on Sharīʿah whilst all readings of rationalism deny such a dependence. Certain formulations of the Divine command theory and Moral rationalism can be compared with particular readings of Legal positivism and Natural law theory, respectively. This comparison can help to deepen our understanding of all four theories and aid legal interpreters and executors in the refinement and implementation of religious and secular positive law.