مجله تحقیقات حقوقی
پیاپی 96 (زمستان 1400)

Patents can be protected as foreign investment. To acquire this protection, patents shall be registered in the country where the protection as foreign investment is sought. The international investment agreement between the state of the patentee as investor and the investor state where the protection is sought shall recognize the patent as an investment.The main question is how the patentee’s complaint can be based on a breach of fair and equitable treatment on the ground of violation of the right to be heard in the European patent office and bring such claim before the international investment arbitration tribunal as a breach of such provision of the International Investment treaty.In this paper, the right to be heard and the right to appeal from decision of patent office is analyzed in European Patent Convention and the respective precedence. Finally, the prerequisites of bringing a complaint before the foreign investment tribunal is scrutinized.

Nowadays, in the field of inventions, the importance of the claims in the declaration is not hidden from anyone. In other words, the beating heart of a patent application is the claims contained in a declaration. Despite the importance of the claims, the Law on Patents, Industrial Designs and Trademarks, approved in November 2007, does not define the claim. Also, the law does not specify rule about how a claim should be written in the declaration, how the claim should be interpreted, why the claim was written, whether or not the inventor should write the claim, and the types of claims and other issues. Therefore, it is necessary that the claim, the function and also the types of claims be ruled by the legislator. Therefore, in this article, with the Analytical and descriptive method an attempt has been made to study position of the claim and the subtleties of claim writing, which have a great impact on the acceptance or rejection of the patent application by the relevant experts, and in this way the importance of correct linguistic signs And choosing the right words can not be neglected. Therefore, it is suggested that in the draft proposal for the protection of industrial property, a part of the law be devoted to the subject of the claim and instead of the characteristics of the claim, the intrinsic elements of the claim be mentioned.

Eudaimonist virtue ethics is one type of virtue ethics. Rasmussen and Den Uyl argue that, by explaining human flourishing characteristics and emphasizing the importance of self-directness, the approach of neo-Aristotelian virtue ethics can be viewed as a foundation for individual rights and, consequently, as the main basis for a liberal neutral minimal state. Individual rights are regarded as metanormative principles because they are associated with the establishment and justification of a political legal ground that has been ensured and provided the possibility of pursuing human flourishing. This account has been criticized for its consequentialist approach and not being sufficiently based on the Aristotelian view, despite claiming to have a neo-Aristotelian approach to the virtue ethics of rights. In addition to investigating the critical approaches, this paper asserts that the right to liberty is an essential condition for fulfilling human flourishing and virtuous living in Rasmussen and Den Uyl's neo-Aristotelian view, and self-directness has been introduced as an intermediate element between virtue ethics and individual rights in terms of this eudaimonist approach.

Double insurance is provided when several insurers cover the same property against identical risk with respect to the same period. Unlike other legal systems, Iran act insurance does not have any explicit provision about status of double insurance and in this respect different opinions have been raised by legal writers. However, assuming the validity of multiple insurance, this issue is brings up that how the insured is entitled to claim against insurers. Some believe that each insurer will be liable for a rateable proportion only, and some other have an opinion that the insured may recover the full amount of his loss from whichever insurer or insurers he chooses. It seems, that just solution is final devided of liability between insurers and in the other word is the right of contribution that is defined as the right of insurers who have paid a loss to recover a proportionate amount from other insurers who are also liable for the same loss.

Police diversion is a set of solutions by which the police trying to prevent low-level offenders from entering into the traditional criminal justice process. Since the English legal system was based on the accusatorial system and there was no institution in the name of the prosecutor's office; the police in the criminal justice system have had major discretionary powers at the prosecution stage. Currently, in spite of restricting the police powers of prosecution and charges, this agency has major discretion in stopping criminal proceedings or preventing the offenders from entering the criminal justice system, which are referred to as " out of court disposals " or " alternative disposals. "Granting diversionary powers to the police in the English legal system has historical, theorical, and pragmatic fundamentals with managing criminal prosecution approach. Police of England executing diversionary powers in summary and most either-way offences that persons who committing them have shown a low level of danger. Police diversion in this country has several examples, some of which are statutory basis, and some are based on the discretion of the police.

Wherever, legal document implies judicial independence, impartiality of judiciary is next to it. Judicial Impartiality like judicial independence is fundamental requirement of judgment and basic description of the judiciary. Impartiality is the matter that more than the other features of the judiciary is in consideration of people and the most fear and Dissatisfaction from the function of judiciary is caused by the lack of this feature. People may do not understand the necessity of judicial independence but know that impartiality is their Absolut rights and follow up observance of that. Litigating of 662 lawsuit from 1970 until 2021 at European court of justice proof this remark. The Judgments which implies of court procedure and many legal content such as distinction between subjective and objective impartiality. In this paper determine concept of judicial impartiality and its instance in accordance with practical procedure of courts and European court of human right.

Regarding “Certain Iranian Asset” case, International Court of Justice, faced with five preliminary objections with respect to the jurisdiction of ICJ and admissibility of the case which were raised by Respondent. As the second preliminary objection, the United States requested the Court to dismiss as outside the Court’s jurisdiction all claims, brought under the sovereign immunity as a customary international law. Iran relied on Article IV (2), Article X (1) and Article XI (4) of Treaty of Amity to support its claim. However ICJ upheld the second objection of USA based on its interpretation in accordance with the Treaty’s object and purpose and also its finding in “Immunities and Criminal Proceedings Case” and “Oil Platforms Case”. In contrary to ICJ’s opinion, a logic relationship can be seen between the object and the purpose of Treaty and the provisions which have been mentioned by Iran. Such conclusion could be reached by analogy and deductive method as well as analysis of separate opinion of judges.

Ghebane cucumber is one of the types of cucumbers, which, if the economic value of the dealers varies considerably, the trader suffers the right to shake it. One of the most important proofs of the legitimacy of cucumber is that it is an indecisiveness. The correctness of the reference to this issue is based on the inclusiveness incidence of non-affairs, which is the result of the difference in the opinions of the jurisprudents of Imami, that it is only by hypothesis that it can be used as the basis of cucumber, which is subject to the capacity and the potential for proving the sentence But many jurisprudents have emphasized that the proof of the lack of authority is exclusively covering existential judgments. The argument is that, in asserting the proof of the principle of the rule of law in non-affairs, one can use this capacity to respond to Various jurisprudence issues and challenges. Therefore, the present research has been conducted in a descriptive-analytical study to review the evidence and jurisprudential documents. In addition, considering the possibility of referring to the problem of legitimacy of cucumber, the analysis and critique of various views on the field of the proving aspect of the rule has been studied in this study.

Jurists and lawyers allocated the Right of rescission- that it is rule of general contract law - to the irrevocable contract. This means legal acts lacking in " contractual " and " irrevocable " characteristics do not entail Right of rescission . Adherent of the opinion have provided reasons to proof and strengthen their opinion which to have been accepted by the majority of the scholars of this science . on the other hand a group of jurists and lawyers has argued that right of rescission in revocable contracts shall not impossible or unlikely .. This group have given reasons for its opinion .This article is an attempt to understand whether the right of rescission is applicable to revocable and even quasi-irrevocable contracts. It will review, analyze and examine the mainstream reasonings while considering the counter-arguments . Key words: Right of rescission, Revocable contract, Quasi-irrevocable contract, Revocation of quasi-irrevocable contracts

With the advent of international criminal court and tribunals, there are ne bis in idem provisions that restrict both the international and national courts in conducting subsequent prosecutions. Ne bis in idem rule can apply both horizontally and vertically. However, the function of latter is adjusting the relationship between international courts and national courts. The vertical ne bis in idem effect includes both "downward" and "upward" levels. The content and scope of the rule are not uniformly defined. In particular, ways to interpret the two decisive factors ‘Idem’ and ‘Bis’ vary considerably. In the interpretation of the term “Idem”, there is the ambiguity as to what stage former prosecution should be taken place in order to prevent a new prosecution. Another ambiguity relates to the term “Bis”; In fact, what is the Bis and in which circumstances second prosecution is double prosecution. Response to that depends on the test that is used by the court: the same conduct test or the same offence test. This paper by examining statutes and case law of international criminal court and tribunals concludes that former prosecution had to give rise to conviction or acquittal to prevent new trial. Depending on the upward or downward vertical Ne Bis in Idem rule, application of both tests is possible.

According to the first part of Article 115 of the Constitution of the Islamic Republic of Iran, the President must be elected from among the qualified religious and political figures (Rijal). The question that arises when interpreting this principle is, firstly: does the word man mean only the masculine gender or both sexes? According to the second possibility, the figures (Rijal) will be religious and political, not necessarily male. But according to the first one, which is also confirmed by the principle of Haghighat, we believe that the meaning of this word is relates to current adjective, therefore, it has no effect on the necessity of being a presidential candidate. Finally, assuming that the meaning of the word man remains obscure, in more than one definite case, the practical principle prevails, the result of which is the license of the women's presidency. This article, while studying the process of approving of this principle, by analyzing the current adjective and matching it with the words in the phrase "religious and political man", has analyzed the meaning of this principle from the perspective of knowledge of the principles of jurisprudence.

Divorce, as one of the most important social harms to the family institution, has existed in various forms. Among the various forms of divorce, consensual divorce has received the most attention because of its relatively simple and short process. In consensual divorce, couples agree on financial and non-financial matters and by obtaining the certificate of incompatibility, provides the ground for divorce. However, couples may withdraw from the divorce before or after issuing the certificate. Because of the prevalence of consensual divorce, it is necessary to examine the possibility or impossibility of the couples to withdraw from the divorce, before or after issuing the said certificate. In general, it seems that in the current legal situation, if the withdrawal from the consensual divorce is before issuing the certificate, the withdrawal with the will of either couples, eliminates the grounds for issuing the certificate. If the withdrawal from the consensual divorce is after issuing the certificate, it seems that 1) the withdrawal of the husband, eliminates the enforceability of the certificate; unless the wife has an irrevocable mandate in the execution of divorce. 2) The withdrawal of the wife has no effect on the enforceability of the certificate. 3) the withdrawal by the joint will of the couples is irrelevant because of the main role of the husband's will in eliminating the enforceability of the certificate; unless the wife has an irrevocable mandate in the execution of divorce, in which, the withdrawal by the joint will of the couples will be considereable.

Today, one of the most commonly reasons use in claims, is electronic evidence. Due to being new this form of reasons, this question comes to mind that these types of reasons are new, or the template and form for the reasons proof of existence (in article 1285 civil law).If you choose second assumption, this question arises that this type of electronic message used in the claim, the form and template what type reason (whether it is a circumstantial evidence or a document and so on) is. By investigating in the legal texts and examining the types of data messages, it can be argued that electronic reasons is essentially as a template and form of the reasons proof of existence that can be regarded as a document or a circumstantial evidence unless in particular non-documentary reliable data messages (such as recorded sound in black box of aircraft) that are not in template of the reasons proof of existence. That is, the new reason with its own specific proof burden, while not considered as a document, because of a reliable electronic record is not doubtful and undeniable.

The leadership experts assembly is one of the elements of the Islamic republic of Iran’s state that selection and control the leader are It’s jurisdictions. In spite of existence legal-religious researches about this jurisdictions, the researches about the regulations of this organization and the manner for control them is rare .This paper is written for analysis the authority for discernment the constitutionality of this assembly’s regulations: containing political decisions, elections code and other norms .With study the sources of the Iran’s public law system , all of the regulations enacted by this assembly are uncontrollable .This situation is conflicted with public law values suchlike the priority of the constitution, hierarchical order between legal norms and the necessity of control of public organizations and writer has presented remedies for dissolving this problem.This situation is conflicted with public law values suchlike the priority of the constitution, hierarchical order between legal norms and the necessity of control of public organizations and writer has presented remedies for dissolving this problem.

Private banks are established in Iran with the legal nature of public joint stock companies and public joint stock cooperatives. Therefore, the realization of conflict of interests is inevitable in its nature. This problem must be treated, otherwise it will not be long before the business falls into a state of low or stagnation and eventual liquidation. This paper seeks to identify the types of conflict of interest that may arise between major shareholders, managers and other stakeholders. The special legal relationship that exists between managers and shareholders is one of the most important causes of conflict of interest, known as the agency crisis. But a good solution must be able to resolve these conflicts and achieve the specific goals of the banks in this way. Corporate governance has been suggested as the most appropriate solution for this purpose. Examining the corporate governance, it was found that this governing body can cover the supervision more confidently with tools such as self-supervisory or other supervisory, by creating audit committees from inside or outside the bank and also by adding non-executive managers from outside the company. In this way, it will help to resolve these conflicts in private banks

The error of the administrative authority is one of the causes of the judicial review under the heading of "illegality"and also in the circle of the concept of "ultravires".One kind of errors is error of fact,which means that the official has been mistaken in identifying the issue of compliance with legal grounds.Under UK law,courts are more involved in supervising cases because they believe that the court often has expertise to identify and They do not determine the status of the subject and only the jurisdictional error are reviewable.But in the new approach,if there is an“objective right answer”and an“manifest error of fact”is made,it is reviewable whether it is jurisdiction or non-jurisdiction error.In the French legal system,all types of error of law,including mistakes in the material basis of the subject,compliance with the lawfulness of the law,and the lack of proportionality between the object of the decision and the issue,is reviewable.In Iranian law,due to the lack of recognition of error concept in administrative law of Iran and its definition in the laws,in the judicial review of the Administrative Court,there is no annulment of the resolution simply because of the error of the administrative office, and also the explicit decision based on the mistake of the administrative office among the votes There are no AJC Divisions.It seems likely that a thorough legal doctrine based on British and French law and jurisprudential texts would provide grounds for amending the law of the Court and the possibility ofadministrative courts appearing on the basis of error.