پژوهشنامه حقوق تطبیقی
سال پنجم شماره 1 (پیاپی 7، بهار و تابستان 1400)

After the sale, the seller is obliged to deliver the goods, and also in the event that the sale is dissolved for any reason and the goods are in the hands of the buyer, he is obliged to return the goods; But if the other party refuses to receive the goods, in Iranian law, the solution that has been considered is to refer to the ruler to oblige the owner of the goods to receive. If the owner of the goods is not required to do so, the only thing that happens is the change of iodine to a safe deposit. In some legal systems, the solution is to resell the goods. One of the most important legal texts in this regard is the Convention on the International Sale of Goods. The study of the possibility of replay in Iranian law is the main question of this research, which has been addressed in a descriptive-analytical manner and with library tools. From the available data, it has been obtained that, firstly, in transportation contracts in Iranian law, this issue has been explicitly accepted without any shortcomings. Secondly, regarding compulsory resale, it is a matter of common sense that the trustee should resell.

Over the last three decades, various forms of negotiated-consensual criminal justice have been developed in common law and civil law. All of these consensual mechanisms simplify and speed up criminal proceedings in response to criminal act. The emergence of these mechanisms guarantees the rights of the parties to the criminal act and it leads to the contractualization of public prosecution. Execution of prosecution alternatives, first by eliminating the stage of discussion on proving guilt, allows it to be done with the least cost and speed of the stage of investigation, which subsequently reduces the overcrowding of judicial authorities and prison. Then, beyond a purely managerial logic, it guarantees the predictable outcome of the trial, which is the goal pursued by both the accused and the victim and the prosecutor. Eventually, a more acceptable response is achieved and a better procedure is implemented that will be of a nature that tends to prevent recidivism. Among these mechanisms are the institution of penal transaction in French and Belgian legal system and the alternative institution for pursuing public litigation in Iranian law. In this regard, the present study with a descriptive-analytical approach has examined the alternative position of public prosecution of penal transaction in the three legal systems of Iran, Belgium and France. In the end, it was concluded that the Iranian legislature would have more confidence in prosecutors in considering the principle of the necessity of prosecution, and that the prosecuting authority would have taken a more flexible approach to pursuing alternatives.

In the Arab Republic of Egypt, the Supreme Constitutional Court is established to protect the constitution. Granting this jurisdiction to the Supreme Constitutional Court, requires adequate provision of institutional independence of the Court and individual independence of the judges of this court. In a descriptive-analytical way, this paper seeks to answer the question of whether the Supreme Constitutional Court's independence has been secured. The legal measures taken to ensure the institutional independence of the Supreme Constitutional Court of Egypt are: determine the court judges by the General Board, examination of the responsibility of the court judges by the general board, the financial independence of the court and the administrative independence of the court; whereas the irremovability of judges, their long-term membership in the court, the maintenance of their jobs, the prohibition of more than one occupation and the provision of adequate salaries for judges, provides the individual independence of the Supreme Constitutional Court judges. By defining these rules in the Egyptian constitution and ordinary laws, the independence of the court is guaranteed in order to perform its duties and powers correctly and impartially.

Legitimate defense is a justifiable and e xcusable factor. T h e basis fo r allo wing mu rder as a le gitimate defense can be found in the theory of human dignity and the symmetry of the right to life / the de nial of the right to life; According to this theory, Scottish law is based on stricter rules than Iranian law regar ding the admission of another murder i n the capacity of self - defense. Adopting a strong retreat rule, acc epting the defendant's only conventi onal mistake in dealing with the attack is necessary t o repel it. T he illegitimacy of murder in the def ense of property, the monopolization of the license to commit rape by a victi m of rape, and its non - extension to other sexual offenses are among t h e hallmarks of S cotland's strict approach. In contrast, the Iranian criminal legislature, by improperly removing the c ondition of appropriateness and using alternative but vague terms by observing the defense steps, adheres to other criteria of defense legitimacy, such as the current or imminent encroachment, the need for one-sided defense and the excessive defense order. Has specified. This is despite the fact that in current Scottish law, or the imminent encroachment, along with some other criteria, is considered an element of necessity in legitimate defense. Despite Scotland's stricter approach to determining the territory of self-defense, the rules of self-defense in Iranian and Scottish law lack the necessary comprehensiveness.

Sport, like other industries, has products and goods that may be based on skill, art, thought and knowledge. With a glance, it's possible to see professional sports competitions and surrounding affairs as the source of products that are shaping up in the industry. One of the achievements of these races is the sale of points, television broadcasting, ticket sales, promotions, and the like; among them the most profitable is the sale of sporting media player points, which are in the form of a contract, club or league or sports federation, the right to broadcast The contest settles in a variety of ways to an organization or company that specializes in broadcast media. Regardless of the level of commercial importance and popularity of professional sports competitions, one of the most important doubts is whether a set of professional sports competitions can be protected as literary and artistic work as intellectual property rights? This research seeks to prove, with the help of the fundamental principles of literary and artistic works, that professional sports competitions have the ability to take into account the truthfulness of the aspects of originality and expression in a particular form and form of the case of literary and artistic works of thought And hence the monitory and moral rights arising from literary and artistic works.

Right of shareholders to raise claims against host state in International legal forums is a relatively recent subject mainly discussed in investment arbitrations field. In classical international law, shareholders did not have any jus standi in raising direct claim against host state and diplomatic protection was the only means for claiming any remedy. This matter was generally touched on by International Court of Justice in Barcelona Traction case. The Court by distinguishing between “right” and “interest” considered that only the right of shareholders is protected. Nevertheless, it recognized the possibility of remedying reflective rights if there exits a supporting treaty. In this article the questions if shareholders possess any jus standi to make indirect or reflective claims against host state and how the investment arbitrations have reacted to indirect claims of shareholders for reflective loss, will be reviewed. Further, how the domestic law legal systems, such as Iran and England, have reacted to the claims of shareholders for reflective loss is considered. The article concludes that shareholders do not have a any jus standi in domestic law such as England for raising indirect claims and the position is not clear under Iranian law. However, Under modern international law, investment agreements provides for the possibility of shareholders raising indirect claims against host states that emanate from the consent of the state given in the under laying investment treaty. Although this type of treaties do not have express provision on damages and indirect claims, the investment arbitration precedents shows that the general conditions provide ground for accepting the right of shareholders to raise indirect claims.

Plea as a procedural application is accepted for more than one hundred years in our legal system, notably by the Law of Civil Procedure 1911 and since that time this concept used in our legal writings as that term without any changes. However, the meaning our example of Plea of Procedure have not ever been analyzed our revised and so we cannot find the main difference of Plea from other Defense Means such as substantial defense or non-acceptation means. We believe that historical background of Plea in French legal system which was categorized generally all means of defense as Plea have been imported to our legal system without changes but Plea in French legal system recently have been distinguished from other means of defense very strictly. In our legal system the new law of civil procedure 2000 maintained that old French tradition and have some influences of Islamic Law as well.Plea as a procedural application is accepted for more than one hundred years in our legal system, notably by the Law of Civil Procedure 1911 and since that time this concept used in our legal writings as that term without any changes. However, the meaning our example of Plea of Procedure have not ever been analyzed our revised and so we cannot find the main difference of Plea from other Defense Means such as substantial defense or non-acceptation means. We believe that historical background of Plea in French legal system which was categorized generally all means of defense as Plea have been imported to our legal system without changes but Plea in French legal system recently have been distinguished from other means of defense very strictly.

Despite the new approach in the Penal Code, no definition of a legal entity is provided, and the legislative view in Article 143 of the Penal Code, in order to hold a legal entity liable, is subject to two conditions, namely or in the interests of the legal entity. Due to the difficulties in assigning responsibility, the scope of punishment of the legal entity is associated with many issues that need to be fundamentally reformed because the legal entity has gradually become very important and this is hidden in the activity and how it is formed. The commission of a crime by a legal person not only has a profound effect on society, but its effects are much more lasting and, in most cases, involve governments. The problem becomes more complicated when we encounter a person whose criminological findings are not possible to correct and restore society to these people because they lack understanding and will. In contrast, the Council of Europe is more favorable. The responsibility of legal entities is on the EU's political agenda. have been. The Council of Europe, by creating a method of identification, analysis of different levels of criminal responsibility, creating diversity in laws, diversity in attribution mechanisms, advanced organizational model, classification of crimes committed, typology of punishment, etc., appropriate and developed orientation Has.

Considering the great success of the New York Convention in encouraging business activists to use arbitration as a dispute resolution method, the United Nations drafted Singapore Convention on International Commercial Settlement Agreements, of which Iran is a signatory country. One of the most important issues in determining the level of executive support of the said conventions for the settlement agreements and arbitral awards is the examination of grounds for refusing to grant relief of the said treaties' documents, which in fact deprives some arbitral awards and settlement agreements from the executive support of these treaties. This article examines the grounds for refusing to grant relief to the implementation of the New York and Singapore Conventions in the following analytical subjects: "Specific Refusal Grounds of the New York Convention for Supporting the Arbitration Agreement", "Specific Refusal Grounds of the New York Convention Due to the Importance of the Seat in Arbitration", "Refusal Grounds Related to Terms and Conditions of Settlement Agreements in Singapore Convention " and "Refusal Grounds Related to Features and Behavior of Mediator in Singapore Convention". Finally, this article concludes that some refusal grounds of the New York Convention that are not covered by the Singapore Convention are originated from differences between arbitration and conciliation and the Singapore Convention's approach to delocalization and not mentioning rules about agreement to mediate. It also found that many of these grounds were unnecessary and would disorder the implementation of the Singapore Convention and the development of the conciliation in the future. Of course, the approach of the Convention is due to the conciliation's lack of reputation between several countries, and the drafters of the Singapore Convention considered it necessary to mention these provisions in the text of the Convention in order to achieve the consensus of the countries.

The constitution is the supreme document in a country that regulates all affairs of the state. It is necessary the proper mechanism to be predicted to preserve this fundamental act and to contain possible threats against this national covenant and any action contrary to it is void. The predicted way to accomplish this is in the form of a concept called the "basic proceedings". In general, there are two ways in the proceedings: "political control" and "judicial control" and countries, for different political, historical and legal reasons, choose one of the above methods. In this paper, using descriptive-analytic research method it has been discussed on the similiar and different dimensions of the substantive process in Afghanistan and America and it has been concluded, despite the differences in method, that in both Afghanistan and in the United States, fundamental justice has been identified. Therefore, the main similarities between the Afghan and United States in fundamental justice are: Judicial proceedings, passive monitoring and lateral controlling. On the contrary, one of the most important differences is: the method of their examination, the manner of dealing with relevant issues, competent authorities to handle the matter that the possibility of the merger and unity of the basic proceedings of these two countries will be avoided. For example, in the United States the basic lawsuit is scattered, but focussed on Afghanistan.

Charterparties are being used for years as a common practice worldwide to provide shipping services in various international routes. A bill of lading is known as one of the most important documents in maritime transportation all over the world. There might be some discrepancies between the written consent on a charterparty and the terms and conditions stipulated on a bill of lading. The shippers or consignees in the bill of lading, and also its forthcoming transferees may be totally unaware about exact content of the parties' agreements. To facilitate settlement of the disputes which may arise between the terms of conditions of these two documents, incorporation of an arbitration clause in the charterparty is one of the methods which may contribute to resolution of the arguments. Different countries have their own laws so each of them takes different approaches towards settlement of their disputes by either courts or arbitration. The Maritime Law of Iran ratified as early as 1964 was primarily inspired from Hague Rules 1924. It has differences as well as similarities with the laws of other countries. The current paper intends to address incorporation of the charterparty arbitration clause into bills of lading among the selective countrie including England, China, Germany and Iran. Establishment of technical maritime courts and professional arbitration committees in addition to updating the national maritime law in accordance with the latest national requirements and the most recent international conventions could be clues to improve the process of dispute settlement in this field.

The protection of intellectual creations in the realm of laws and regulations has been one of the most fundamental goals of legal systems in the present century; Therefore, both at the national and international levels, several laws and treaties in the field of literary, artistic and industrial property have been formulated and regulated, and each of them has supported different examples. In Iran, one of the most important and in fact the first law that has been approved in the field of literary and artistic property is the Law on Protection of the Rights of Authors, Writers and Artists approved in 1969, which is mentioned in Article 2 of the law. . Despite Article 2 of the Berne Convention, which can be interpreted in an allegorical way in various ways, Article 2 of the Law on the Protection of the Rights of Authors, Writers and Artists, which seems to be inspired by Article 2 of the Berne Convention, is a form of expression. Which has caused doubts about the allegorical or exclusive nature of its examples. In the present study, using a descriptive-analytical approach, while explaining different legal perspectives and presenting various other reasons, it is concluded that despite the supportive nature of this law, the method of preparing Article 2 and other materials related to this article is such that the view is exclusive. Supported by Article 2 of the Law on the Protection of the Rights of Authors, Writers and Artists, but due to the different effects that each of the above views may have, it is suggested that a moderate approach be chosen in this regard; Thus, if the emerging instances are able to comply with the instances mentioned in Article 2 of the said law and a similarity can be established between them, it will be supported and otherwise a special law will be set.