مجله مطالعات حقوق تطبیقی
سال دوازدهم شماره 2 (پیاپی 24، پاییز و زمستان 1400)

The manufacturer of a defective sold car, as its supplier, is responsible for any loss to the consumer or the third party. The supplier's civil liability is an important issue to consider theoretically and practically. There are many questions in this regard, such as: Can any deficiency or excess be considered as a defect? What are the standards for recognition of the defects in a car? Is the definition of the paragraph "g" of Article 2 of the car Consumer Protection Act Regulation comprehensive? Through studying the issue, we will find that any deficiency or excess is not considered as a defect. The criteria for recognition of a defect include both personal and customary criteria in the Iranian Law. The personal criteria cannot be comprehensive. Therefore, it is difficult to recognize the defect. On the other hand, customary criteria can be also included the two meanings: local custom and customary person's expectations. Since a deficiency may be considered as a defect in a local custom, but not in another, considering the local custom as the criteria leads to the discrimination; however, the customary person's expectations criteria, as elected by the UK Law, seems to be 1 more comprehensive, provided that it combines with the risk-utility criteria. As a customary person's behaviors are stable in every place and time, it leads to the discrimination, with less probability. Accordingly, the definition of paragraph 1, "g" of Article 2 of the car Consumer Protection Act Regulation is not comprehensive.

Stigma damage is one of the new kind of uncertain damages which cannot be determinated with absolute or mathematical certainty and should be determinated based on the reasonable certainty. In recent decades, it has been accepted as a compensable damage in most United States courts in order to achieve the principle of full compensation. This loss refers to the attribution of a negative or harmful condition to the property, which is ultimately reflected in the price of the property and reduces its market value. This article tries to introduce this new damage in the US legal system with a descriptive-practical manner in order to familiarize researchers with it and possibly reform the laws in the field of damages in the Iranian legal system. The findings of this study show that despite the uncertainty in determining the extent of this damage, it is possible to evaluate and calculate it more accurately based on some indicators. It also seems that the Iranian legislator can legislate in this regard by relying on Articles 1 and 3 of the Civil Responsibility Code and also based on the well-known rule of “No Loss” rule in Islamic jurisprudence.

Non-commercial institutions have independent legal personality, like commercial institutions, so they can enter into a contract, owe someone or put debt on another obligation. Because legal personality of non-commercial institutions is independent of their managers, always the institutions become liable or creditor, not their managers or members; this is while in domestic law there is no rule  regarding management of non-commercial institutions and about the liability of their administrators  and members. On the other hand, the silence of law doesn't deny  the limited liability  of administrators and members of non-commercial institutions , because limited liability protection umbrella is raised over administrators of non-commercial institutions through acceptance of independent legal personality; therefore in this article we will review the responsibility of administrators of this type of institutions, regarding the rule of “pierce the corporate veil”. Initially the theory of “limited liability” will be analysed. In the following we will reveal  the differences and common aspects of commercial and non-commercial institutions after description of legal personality of Non-commercial institutions. Finally we will present the appropriate approach to the administrators of non-commercial institutions to be responsible for their actions by appealing to “pierce the corporate veil” doctrine. It is suggested to set rules in domestic law, according which each member of the institution who manages the organization and directly benefits from the profit-making activities of the institution, or makes legal personality, a cover for his personal activities, be responsible for the debts and obligations of the institution.

One of the most important issues in international criminal law is determining the jurisdiction of the courts to exercise jurisdiction. In this regard, according to the principle of territorial jurisdiction, all crimes committed within the territory of a country can be prosecuted and tried in the same country. On the other hand, it occurs in cases where the perpetrator is a citizen of another country or the evidence of the crime exists in another country, and if the trial takes place in these countries, with the requirements of fairness and justice, preserving the existing evidence, preventing Procrastination and ... is much closer. According to one of the manifestations of legal cooperation between states, in the transfer or referral of criminal proceedings, a country that has the inherent jurisdiction to try a crime may transfer that crime to another country on the basis of the principles and certain criteria, refer. Now, the question that has been less addressed in legal texts and researches is what is the meaning of transferring criminal proceedings between countries? What is the difference between it and institutions such as the transfer of convicts or extradition of criminals, and finally, what is the practical position of this institution in our country's legal system and its practical challenges? Accordingly, in this study, we will first examine the concept of this institution and recognize it from similar concepts, and then we will examine the practical position of this institution and its challenges in the judicial system of our country, and finally measures to improve the status of this useful action. We will present in the Iranian criminal justice system and the solution of existing practical challenges.

Nowadays, independent directors as one of the most important institutions of good corporate governance has progressed from doctrinal stage into a dominated concept in corporate law. These directors have the flexibility and comprehensiveness to adapt to the concerns of different legal systems. Thus, although they were first accepted into American and British law based on more effective board monitoring of the company's management, they also have the potential to be used in Iranian and other countries' law to protect the rights of minority shareholders. Therefore, in order to rank countries in terms of ease of doing business, the World Bank pays special attention to the presence of independent directors in the composition of the board of directors as one of the key indicators. Therefore, considering that the main distinguishing feature of independent directors from other directors is their independence and that this institution is entering the Iranian Companies Law through the Corporate Governance Instruction of the Stock Exchange and Securities Organization and the Bill for Protection of Small Shareholders; For the first time, the present study has tried to use analytical-comparative method and after proposing some very important considerations, By analyzing how to achieve independence of independent directors, to point out the problems with it along with the proposed corrections.

According to the theory of one governing law for multiple relationships existing in international ‎documentary ‎credits, the law applicable to all relationships in a letter of credit must be the same and the law of a single country governs all such relationships. Since "payment of letter of credit" is made in the country of residence of the advising bank (in unconfirmed letters of credit) or the confirming bank (in confirmed letters of credit), it is assumed that such country has the closest connection with all the above relationships and its law governs these relationships.
This theory has been recognized in the courts of some developled countries and a number of authors have accepted the said approach and tried to promote it, nevertheless, considerable reflexions on the theory are capable of being raised. The main grounds of the theory are necessity of taking into account the commercial expectations of the beneficiaries and the banks involved in the letter of credit, as well as the assumption of a close relationship between the country where payment is made and all relations existing in the letter of credit. Both bases have been questioned and challenged. In this study, the theory is examined in an analytical-descriptive ‎method and it ‎seems that such kind of approach regarding law ‎applicable to multiple relations ‎involved in letter of credits is somehow ‎dogmatic and has been proposed with the ‎aim of expanding the legal ‎competence of developed countries and application of ‎their legal ‎systems to all aspects of letters of credit and disputes arising out of ‎them. ‎The authors of this essay are of the opinion that the legal ‎analysis leads to ‎preference of application of a multifactorial and ‎flexible conflictual approach i.e ‎‎"center of gravity of the disputed ‎relationship/s". Application of  the law of ‎‏"‏center ‎of gravity‏"‏‎, as ‎relevant conflict of law rule, provides the opportunity of ‎determining ‎the substantive law governing the legal relationships by ‎examining various ‎connecting factors and figuring out the proper law ‎through taking into consideration ‎all circumstances surrounding the ‎relationship/s in dispute. This conflictual ‎approach is a well-known ‎approach in private international law and recognized in ‎most of legal ‎systems and seems to be justifiable through a reasonable ‎interpretation ‎of paragraph 2 of Article 27 of the International ‎Commercial ‎Arbitration Law.

With the deployment of automated systems and artificial intelligence technology growing in the auto sector, the shift from a human driving vehicle to an autonomous vehicle (AV) may pose challenges and questions for politicians, legislators, lawyers, industries, and even consumers. One of the challenges is where a practitioner or consumer of an AV confronts legislation. An accident that involves an AV would raise issues for which laws have not been adjusted. The requisite foundation of liability is the issue that this research pursues to discover. This research explores the newest efforts in the forerunner countries compared with Iranian laws to illuminate uncertainties such as who should be liable, if and to what extent manufacturers are liable, and how a proper liability regime should be designed. While the operator liability seems to be efficient for the first three levels of autonomy, in the last three levels where the operator is not as engaged as before, the product liability may provide a defendable foundation of liability. However, with the defective tests currently in use, it seems more justifiable to hold manufacturers strictly liable. This article provides legal literature and asks precise questions for future works to ultimately establish a liability foundation for automated technologies. Document Type: Research Paper.

International legitimacy of the FATF and the validity of its codification in international system from the point of view of international custom and documents have always been questioned by some scholars with skepticism. They believe that the FATF recommendations and Codification are still in the form of soft law and cannot be validated and considered binding. It is appearing that the subjective perspective of the international community's belief in international documents indicates a legal will which has been an influence element in formation of FATF and its international legitimacy and the validity of its approvals.The authors, by attention to the joining majorityof countries to FATF, seek to prove this hypothesis that The FATF in the light of international law, customary international law, international documents and State practice caring international legitimacy, and its Ratifications legally are binding.

Drug legalization has often been marginalized under the influences of Criminalization approach, but in recent years, it has become the main policy of in Canada, Uruguay and some states of US in relation to cannabis. In Iranian criminal justice system, although the criminalization approach has always been emphasized, but the evaluation studies indicate the ineffectiveness of these policies. With regards to these circumstances, it is necessary to ask the question whether it is possible to formulate a legalization policy on cannabis in the Iranian criminal justice system or not? So, we collected, coded and analyzed data using qualitative content analysis method and comparative study of cannabis legalization policy in the United States. The findings of the study indicate a focus on medicalization in controlling drugs, which leads to ignoring its negative consequences including cultural dimension of drugs. Whereas the consumption pattern and decriminalization approach should be considered as important variables in legalization policy for cannabis.

After the 1979 Moon Agreement, the development of international space law in international society has been in a stagnant mode. With the progress of private space activities since late 20th century, a stable framework for space disputes settlement was considered a vital exigency. Scholars have proposed ways like alternative consultation resolution, space law tribunal, and multipurpose court; but they have brought about no success until now. In the current space law order in the world, political consulting, claims commission in Liability Convention, International Court of Justice and Permanent Court of Arbitration rules, and also some regional institutes are the only existing disputes settlement mechanisms. Concerning privatization and commercialization of space activities begun since 1990s, the issue is what are the barriers confronting to the proceedings and settlements according to the plurality of space actors like space corporations, and how to overcome the problems? This paper tries to treat the problem and deal with the possible solutions.

The difference between the two legal systems of Civil Law and Common Law has led to the formation of two different notary systems, which in the legal system of Civil Law is referred to as the “Latin notary system” and in the legal system of common law as the “Notary public system”. despite the common historical roots of both notary systems, Studies show that the institution in these two legal systems, has followed a different path of development so that the Latin notary system is very effective in achieving the legal order of society But the notary public system has not developed significantly legally, Which raises the question of what are the differences and similarities between the two notary systems And why is the notary institution more important in the civil law system than the common law system and has become an influential institution in the legal order of society? The present study using a descriptive-analytical method and a comparative approach, while examining the different legal and economic basics affecting the evolution of Latin and public notary systems in two legal families of common law and civil law, the legal nature of the notary institution, governing principles, and capabilities of notarial documents,  it has been concluded that the Latin notary system is in superiority to the notary public system completely And the notary is a part of the civil law system that has infiltrated the common law system and is in conflict with the common law environment, Therefore, we do not see its growth in this legal system like the civil law system.

The void for vagueness doctrine, as one of the results of rule of law called certainty, precision, and clarity, has been identifies in the judicial process of The United States. In line with the due process principles directly stated in the 5th and 14th amendments and separation of powers principle, the Supreme Court of the United States knows the aforementioned doctrine revocable because of its contradiction with the constitutional principles for two reasons: First, because some penal statutes are so vague that the addressee with common sense cannot realize or understand the justly notice warning, legal and illegal behaviors. Second, it has been written in such a broad way that police, prosecutors, judges, and juries can execute it arbitrarily and discriminatorily when authorized. The findings of the present research reveal that void for vagueness doctrine is a good way to apply judicial review. This doctrine investigates law in an "as apply" and "facial" review. The mentioned doubts like lack of legitimacy of the constitution, lack of clarity, under inclusiveness, and lack of real understanding of the segregation of some ambiguous and vague terms have questioned the very doctrine claiming that this doctrine will no longer exist this way. The authors have introduced and specified the entity, principles, factors, and the purpose of applying such a doctrine focusing on the issued votes in the Supreme Court of the United States through descriptive and analytic procedures. The investigation of this doctrine provides a good chance to consider some problems regarding the vagueness in the legislation system in Iran and makes it possible to obtain a suitably corresponding pattern to exploit the judicial system. Article type: Periodical

More than a year has passed since the Corona-virus pandemic, but in this short period of time, this virus has affected various dimensions of human life. Criminal proceeding has not been immune to the deleterious effects of this pandemic. Virtualizing the criminal justice process in order to reduce referral to the courts, changing in the structure of the courts, modifying the terms of trial and suspending the prescription are some of changes introduced in the wake of Corona-virus pandemic. This article aims to examine criminal proceeding adjustments in the penal systems of France, Belgium and Iran from a comparative approach. The analysis of the legal systems of France, Belgium and Iran suggests that the expansion of the electronic process is a common feature shared by all three systems. Changes in trial terms and suspension of prescription were shared by the French and Belgian systems, whereas alterations in the structure of courts was exclusive to the French system.

In all legal systems, there is no difference in that the obligor must fulfill his obligation in full and in accordance with the conditions stipulated in the contract, but sometimes for some reasons the obligor cannot fulfill his obligation completely and accurately and the obligation remains incomplete.  In the common law system, the first thing that is usually said under the discharge by performance is that the performance must be precise and exact. But is the obligation precisely and exactly implemented in all cases? The answer is definitely no. Because sometimes, for some reasons such as the frustration, breach, etc., the obligor cannot perform the contract completely and accurately, and the contract remains incomplete. In this situation, is the other party obliged to fulfill his obligation in return for incomplete work? In other words, should a person who has performed his obligation incompletely be paid? What to do in this situation? Should we support a person who has fulfilled his obligation incompletely? Or should the other party be supported and not the person who has partially fulfilled his obligation? Or should we accept a way in which the rights of both parties are protected? If we support a person who has fulfilled his obligation incompletely, people will not have enough motivation to complete their contract and can easily break the contract. In addition, the whole contract is desirable for the person, not part of the contract. And if we support the other side and pay nothing to the person who has fulfilled his obligation incompletely, fairness and justice may be violated, Because the obligor has performed part of the contract and it is unfair that nothing be paid to him, as we will see in the case of Cutter v Powell. Therefore, a solution must be adopted in which the rights of both parties to the contract are guaranteed. In the common law system, contracts are discharged in various forms, including discharge by performance, discharge by agreement, discharge by breach, discharge by frustration. One of the rules that is usually discussed under the topic of discharge by performance is the entire obligations rule. this rule is one of the oldest rules in the common law system, dating back to 1795 and the Cutter v Powell case. In this case A sailor had contracted to serve on a ship travelling from Jamaica to Liverpool. He was to be paid 30 guineas for the voyage, payable when the ship arrived in Liverpool, but he died during the journey. His widow sued for his wages up until his death, but her claim was unsuccessful. The court held that the contract required entire performance and, as he had not completed performance, she could claim nothing. Most authors have described this rule as a harsh rule. And for this reason, exceptions to this rule have been made over time. Including substantial performance, divisible contracts, voluntary acceptance of partial performance, prevention of performance and tender of performance. Most authors refer to this rule as the entire obligations rule. other titles have also been used for this rule, such as the entire performance rule or the strict rule on performance or the entire contracts rule. There is no rule in Iranian law under this heading. However, issues such as the indivisibility of obligations, the indivisibility of lien, the desired unity and obligation to achieve a certain result are similar to this rule. The response of the common law system to this situation does not fully ensure justice and has flaws that can be seen in the case of Cutter v Powell. Similarly, Iranian law does not provide a comprehensive answer to this situation. Therefore, in this article, a comprehensive solution will be expressed in case of incomplete or partial fulfillment of the obligation.