نشریه حقوق تطبیقی (نامه مفید)
سال هفتم شماره 1 (پیاپی 13، بهار و تابستان 1399)

Three unities are required traditionally in fulfillment on res judicata. In French Law, this condition is provided in art. 1351 of Civil Code. Despite this article, French cour de cassation in a judgment so called Cesareo in 2006, removed the unity of cause from the conditions of res judicata. Subsequently principle of concentration of arguments (principe de concentration des moyens) was established in French Law. In Iranian Law, despite the fact that doctrine does not hesitate in necessity of unity of cause res judicata, in positive law there is no sign of this condition. Accordingly, Iranian Jurisprudence does not regard unity of cause as a necessary condition of res judicata. Creation of Principle of Concentration of Arguments in French law and subsequently, appearance of critical discussions about this principle, rendered an opportunity in Iranian Law to reconsidering the conditions of fulfillment of res judicata in positive law and jurisprudence?

With the increasing use of the Internet, copyright in the cyberspace can be easily violated by millions of users around the world, and the copyright holder faces the question that which court is competent in the actions against multiple violators who are in different countries? Whether or not the traditional rules of competency are applicable in cyberspace or we need new rules in this scope? This work attempts to determine the criteria for determining the competent court in the application for copyright infringement by comparative and analytical study of the above issue in several international and regional documents and Iranian law. With the examination of the various qualifications proposed in this dispute, it has been concluded that there is not a common rule of conflict resolution to be used in all cases of infringement of copyright in cyberspace, but the specific situation and circumstances of each case are crucial in determining the rule. Although in these cases, domicile of respondent has general jurisdiction, but there are some cases that the complainant has the right to choose a competent court from two or more courts under the laws and conventions (special jurisdiction). The competent court may also be agreed by the parties (agreemental jurisdiction). In some cases, a claim for copyright infringement in the cyberspace can also be made in a specific court under customary rules (exclusive jurisdiction).

In the United States, multiple-offenses are dealt with as a single offense, and in immaterial plurality offenses, state attorneys will have the power to request that the court issue an aggravated offense. Differently, one-sided or two-sided will intensify the punishment to different degrees. In Iran, crimes are aggravated according to their punishment and frequency of repetition. The findings of this study show; Although the multiplicity of crimes in both systems aggravates the punishment, the method of aggravation of punishment in these two countries is different because in the United States the principle is the simultaneous execution of punishments and in cases where the court follows the sequence of punishments, the balance between crime and situation must be Consider the culprit as well as the sum of the punishments, but in Iranian law the procedure of the legislature varies according to the type of punishment.

The pursuit suspension entity as one of the strategies that is in line with the guidelines of criminal abolition, was finally established in the Criminal Procedure Code of 1392 after several decades of uncertainty. This entity is a main manifestation of pursuit actualization that recognizes the right of the criminal case suspension by suspension authority. Although pursuit suspension differs from “criminal compromise” in France Law System in terms of realm, method and enforcement, they resemble each other in terms of efficiency in results. The aim of the present study is the assessment and critical analysis of “Pursuit Suspension” in light of comparative study of its French counterpart that is “criminal compromise”. Despite the legalization of the pursuit suspension strategy in Iranian law, the judiciary has not yet shown convergence and acceptance. Among the reasons for this, in addition to the lack of the necessary cultural-judicial background, are the numerous flaws and challenges facing this entity. In the first part of the article, the principles and reasons for accepting this strategy and the changes in role and position of the court in criminal pursuit are analyzed. In the second part, the principal and legal challenges of pursuit suspension, including inconsistency with the principle of exemption, the principle of separation of the pursuit authority from the prosecuting authority and the rule prohibiting retrial, as well as its executive objections in terms of territory, in-text and extra-textual conflicts, ambiguity in how to apply, etc. have been analyzed and the required strategies have been proposed to eliminate the existing flaws.

Class action is an action sued on behalf of an unspecified group of the injured persons. These actions, which have been formed in common law, and in particular in American law, make it possible for a number of people who have similar claims with the palintiff to be heard in a single lawsuit. Due to the significant advantages of these actions, the necessity of their acceptance in the Romano-Germanic legal systems as well as Iran law is raised. However, some principles and concepts of Romano-Germanic law and Iran law and some structural differences of the American law, have created obstacles to the acceptance of American class actions in other legal systems.

Theories are the basic basis of science. The study of theories is sometimes at the level of works and results from them, and sometimes through its formative foundations. In the a priori study, the attitude of research is based on the basis of theories of theories as available concepts or in other words, the paradigm of theory. Based on this method of research, each theory - regardless of the details of the theory or its title - specifically follows a certain epistemological and ontological level. This study tries to examine the theoretical and ontological points of theory by the way of a posteriori. Accordingly, two main legal systems, the legal system of the west with all the subsets, and the Islamic law system, would be examined in a paradigmatic perspective. In particular, the main basis on the production of theories of each of these two legal systems will show that the possibility of comparing these theories is the paradigm of adaptation in the ontological and epistemological bases of the theory in which theory is produced.

The present paper studies the nature of legal superior order from the point of view of legal and meta legal (blameworthiness) bases and addresses this issue that legal superior order is not considered crime in the realm of law on the basis of a teleological interpretation and in a meta legal  scope cannot be blameworthy according to criminalization considerations and justification bases (public benefit and legal right). It is solely subject to objective conditions as a justifiable defense. This paper critically evaluates three well-known approaches of absolute obedience, sole responsibility and observance of legal formalities and compares it with criminal law of some Greco-German systems including France, Syria, Lebanon and Jordan and rereads the condition of Iranian criminal law.

Regarding that retaliation (qisas) is one of the reactions and punishments which Islam has considered as a sanction for the right to life, so it requires many research topics. One of these topics is substitution and replacement of this punishment. According to the above mentioned, and also considering that retaliation (qisas) is affected the society, it is very necessary to regard this fact in order to secure relief sought of avengers of blood. In this article we face with these basic questions which are as follow: which kinds of authorities does the owner of the right to retaliation (qisas) have? Whether he or she can make any decision about it under the title of substitution, or the punishment of retaliation (qisas) has relevance and except in appointed cases, there isn’t the possibility of its substitution even with consent of the parties?    Assuming the acceptance of substitution of retaliation (gisas) punishment, relying on the institution of substitution in discretionary punishments, we can say that in order to substitute the retaliation (qisas) to other punishments, lighter punishments should be applied. In this article, especially we point at the case that based on it, the execution of retaliation (qisas) is impossible and we come to this conclusion that, the substitution of retaliation (qisas) to other applicabilities of punishments the same as blood money, whether it be according to the opinion of competent authority or it be in accord with and based on mutual consent with murderer, has different forms.

Comparative advertisement as a specific type of advertisement is a sales promotion tool that compares one's products or services to other products or services or to other competitors. In this kind of advertisement basically in addition to the interests of consumers, the interests of competitors and proprietors of the law are also raised. Considering the benefits of this type of advertising, the restrictions in this area should be carefully considered; on the other hand, the absolute release would have a widespread corruption corollary in the field of right holders, consumers and competitors, which should not be ignored. The EU Directive 2006/114 / EC stipulates that "comparative advertising" means any advertising that explicitly or implicitly disclose the goods or services provided by the competitor in relation to another competitor. Contrary to the EU directives that define the terms and conditions of the ban on this type of advertising, there are many legal uncertainties about Iranian law. It is necessary to draw up a framework for categorizing laws and regulations and foresee the necessary conditions and constraints governing this type of advertising. In this way, by observing legal considerations, we can generally consider the freedom of comparative advertising as one of the types of advertisment.

Established water is collected in a special container and it belongs to someone if it is acquired. This study considers acquiring water as a way of establishing ownership of water and determines the circumstances and limitations of using it. This research tries to address the issue of water ownership based on the views of early and contemporary jurisprudents. According to the findings, everyone can use Mubah water equally and without any kind of discrimination and the person acquiring the rights faster than others can establish the ownership of water. The primary verdict about established water is the absolute ownership of it. However, a fully qualified ruler can limit this verdict and define limits of using water based on the requirements and conditions of that time, the common and cross-generation interests and the secondary verdicts.

Considering the concept of news, it seems that this phenomenon, as an example of artifacts of the human mind, if original, can be considered as a "work of art" whether written or audiovisual, and the rules of literary and artistic property rights would apply to it. Given the ambiguity regarding the possibility of extending literary and artistic property rights to include News and the consequent confusion in some cases, the present study has investigated this issue. What is remarkable is how the inclusion or non-inclusion of News in literary and artistic property rights is affected by the way it is expressed. For example, if news covers a lecture on a scientific, technical, literary or artistic matter, only then it can be supported by paragraph 1 of Article 2 of the Law on Protection of the Rights of Authors, Writers and Artists. However, paragraph 3 of the same article would protect it unconditionally. In which case, it would be close to the laws of the United Kingdom, which explicitly support radio and television programs, including news, regardless of the originality or content.

The Current Mechanism of the Investor- State Dispute Settlement is based on Institutional and Ad, hoc International investment Arbitration. The Current Regime of this mechanism has faced with some deficiencies including: Issuance of the inconsistent Awards, Challenging the Governments from international liabilities point of view, Damaging on some fundamental principles of investment international law, High costs, lack of expertise of arbitrators in investment fields, different approaches of the Arbitration courts on Treaty Shopping, Lack of precedent, lack of appeal mechanism and etc. it believes that establishment of an International Investment permanent court with aspiration of the unique  Multilateral dispute settlement mechanism of  the World Trade Organization (WTO)   can act as more Consistent, Efficient and Effective in settlement of the disputes of investors- States, in comparative of the current system of the international investment arbitration. Moreover, this new system can reduce the afor-said deficiencies and in particular can take step on strengthening the investor- State Dispute Settlement.