پژوهشنامه حقوق تطبیقی
سال پنجم شماره 2 (پیاپی 8، پاییز و زمستان 1400)

The fall of the two opposing religions automatically to the extent that they equate with each other, from the moment of the intersection inspired by the term ipso jure in Roman law and influenced by the ideas of Duma and Putie in French law became a rule, but from there The concept of purity was largely exaggerated and unrealistic. In order to resolve the conflicts around it and bring it into line with reality, the concept of legal purity was enshrined in French civil law and the concept of declared purity in German law. Is. Article 295 of the Civil Code of Iran introduced the phrase "coercive purity" inspired by some views in Islamic jurisprudence and the written legal system. Due to the ambiguity in the meaning of the word "coercion" in jurisprudential books, most legal writers considered it as equivalent to automatic purity or legal purity. The purpose of this study is to examine the purity in the French and German legal systems by looking at the coercive purity in Iranian law and identifying the strengths, weaknesses and gaps of existing regulations and the research method in writing this article is analytical-descriptive. Finally, it seems that careful attention to the jurisprudential background of the subject and the expressions used in civil law brings coercive purity in civil law closer to the concept of declarative purity in German law and voluntary purity in Islamic jurisprudence.

Over the decades, globalization has affected all areas of human life. One of the challenges that globalization has created is securities. On the other hand, due to the willingness of countries to intervene in economic affairs, especially the stock exchange, it has caused a dual nature of public-private. This, along with globalization, has created ambiguities in the conflict of laws related to these documents. The main question that arises is what effect has the globalization and liberalization of securities had on the legislative and judicial policies of countries? The liberalization and internationalization of securities markets, in addition to further complicating some aspects of these markets, has necessitated the development of appropriate legislative policies and strategies with these changes. Unfortunately, there is no explicit provision in Iranian law for conflict of laws in the field of securities, and it seems that the legislature has strengthened the national aspect of securities in the securities market law. After the country leaves the European Union, it is applied to determine the law governing securities. In international documents, the principle of the rule of will to determine the law governing securities is accepted if it does not conflict with public order and rules. In this article, we first examine and determine the legal nature of securities, then, we examine the various legal regimes that may prevail in an international securities agreement, and in the final chapters, using the documents. International, jurisprudence and experiences of other countries, we will clarify the strategies for determining the law governing securities transactions.

Comparative study of liability arising from third party intellectual property right or claim on goods in the Vienna Convention 1980 and Iranian lawWith regard to Article 42 of the Convention, vendor's failure to deliver goods which is the subject-matter of third party intellectual property right or claim, is considered as breach of his obligation to transfer goods ownership. Thus to deliver goods which is the subject-matter of third party intellectual property right or claim, is an example of lack of consistency of goods with contract and the ways of compensation due to non-conforming goods in Articles 46, 50 and 51 of the Convention is also applicable to goods subject to intellectual property right or claim of third party. Contrary to the Convention in Iranian law there is no distinction between the rights and claims of third parties arising from intellectual property and other ones. So according to Articles 390 and 391 of the Civil Code, if the goods are entitled to another in whole or in part, vendor shall be required to refund the price to the buyer and if buyer was unaware, seller must pay all damages too.Legal non-conforming, Third party claim, Intellectual property, Vienna Convention, Iranian law

One of the traditional methods of acquiring citizenship has been based on marriage. In French and German law, this approach has been obsolete for many years. Thus, marriage to foreigners has no effect on nationality anymore. Iranian civil law, using Islamic law and Imamieh Feqh (jurisprudence), has benefited the experiences of law-abiding countries, specifically France and Switzerland. Iranian society has undergone several changes since the year the law was passed. However, the citizenship section of the law is still based on the same traditional view. According to the Iranian laws, if a person from Iran marries a foreign woman, and if an Iranian woman marries a foreign man, according to the principle of “unity of couples”, the nationality of husband is imposed on his wife. In French and German, however, this approach of imposition has been denied for years and marriage to foreigners has no effect on citizenship. The present research compares the laws of the three countries and analyzes the negative effects of imposing the citizenship upon marriage in the Iranian law. The results show that reviewing and revising the old rules on the imposition of citizenship on foreign and Iranian women upon marriage is necessary.

The shareholders of a company entrust the day-to-day management of the company to a group of managers. In order to maintain the value of their shares and their right to receive dividends, shareholders maintain certain tools to influence the shares. They are usually influenced by expressing their opinions and obtaining votes in the general meetings of shareholders. However, there are other tools of influence, one of which is derivative litigation. This is a lawsuit filed against the directors by the minority shareholders on behalf of the company. In cases where the company has suffered damages due to the manager's misconduct, the company has the right to take action against the manager, but is usually reluctant to do so. Derivative litigation enables shareholders to take legal action against delinquent managers.Common law, Roman Germanic systems and Iran have adopted different approaches to protect minority shareholders. But the common law system acted more flexible and more complete in this case. Implementation of the common law rules in the Roman Germanic countries demand some conditions that must be included in Roman Germanic law. The gradual process of regulatory reform in Iran, the possibility of litigation derived expanded and some of the rules and regulations need to be revised again. This article offers a comparative approach to the legislator.

In recent years, money-laundering offence has seen a surge in interest from the international community and the national legal systems as an important conduit for financing terrorism. Against this backdrop, FATF has formulated minimum standards and urged the states to comply with them, hoping to prevent and combat money-laundering while at the same time encouraging the countries to criminalize it in their domestic laws. Money-laundering takes place in a diverse variety of ways, and has many particularities. This has deeply troubled judicial authorities engaged in prosecution and proof of the offence. In 2018, the FATF set up an educational workshop to instruct judicial authorities from different countries on the imperative standards in judicial prosecution and proof of money-laundering. It also provided points on the issue of Mens rea and the modification of the principle of innocence and emphasized that proving money-laundering does not depend on proving the primary offence. In addition to explicating the standards mentioned above, this article aims to explore Iran’s legislative-judicial approach to criminal policy by the use of the descriptive-analytical method. It seeks to elucidate the extent to which current practices are in line with these standards, and also shed light on the existing drawbacks and lacunae. To achieve this goal, the principles and the framework of Iran’s criminal policy in Anti-Money Laundering Law adopted in 2008 (amended in 2018) and its executive guidelines, as well as consultative views of the legal department of the judiciary and a number of judgments of the courts of justice are discussed. The article then concludes that Iran’s legislative-judicial criminal policy has adhered to the FATF’s standards in some regards, while defying these standards in other cases, thereby creating drawbacks and lacunae, notably in judicial prosecution of money-laundering.

One of the goals of criminal procedure is to protect the right to liberty.Temporary detention is a violation of this right, which in the present study is examined for a maximum period of time in the light of criminal policy findings. Some countries, under the influence of security-oriented criminal policies, consider the accused as a dangerous enemy and violate his right to liberty under the pretext of providing maximum security to the society and increase the maximum period of temporary detention or indefinite detention.The approach of Saudi and Lebanese law in terms of not setting a maximum period of temporary detention in criminal investigations is influenced by the security model of criminal justice and expediency.In these systems, the judiciary has full authority at its discretion and in order to achieve the good of the offender and the victim, and can violate the right to liberty; In this case, the atmosphere of the criminal justice system will take on the color and smell of security, and criminal policy will move towards the dehumanization of the criminal response. Contrary to the above view, the adoption of a tolerant criminal policy with a little tolerance in Egypt and Iran has led to a shorter maximum detention period. From an interactionist criminological point of view, which views criminal justice institutions as labeled institutions and processes, this reduces criminal intervention and, as a result, defendants are less likely to face criminal labeling. However, in some countries, such as Egypt and even Iran, sparks of security-oriented criminal policy have prevailed in the legal system that have empowered the political authority to detain individuals without maximum detention.This article seeks to discover the strengths and strengthen them and find the weaknesses and reduce them by analytical and descriptive methods, and therefore can be effective in improving criminal policy.

The right of education is one of the most fundamental human rights recognized in the form of the second generation of human rights in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. The Government of the Islamic Republic of Iran, as the state that has accepted these documents, is obliged to observe the provisions of international documents and to pay attention to the accepted principles and principles of this right in these documents. The Constitution of Iran, as the mother law, is the most important source and basis of the right of education; therefore, recognizing the right of education and accepting its principles in the constitution is necessary to protect this right. One of the most important and challenging principles of the right of education is Publicity and freedom of education, which in some cases has been ignored by the Iranian government and has been accompanied by reactions to human rights violations and international instruments.The purpose of this study is to examine the principles of Publicity and freedom of education in the Iranian constitution to determine in what cases these principles are in conflict with these documents? And what are the solutions to this conflict? In this regard, French education regulations are also cited as an example of foreign law.This research is a library and documents, using books, articles, internal regulations, international documents and the French Constitution, in an argumentative and analytical-descriptive manner and is a practical research that can be a way for the legislator to identify the right to education. The findings indicate that although these principles are enshrined in the Constitution, they are not comprehensive and effective, and in many cases conflict with international instruments and require review by the legislature.

According to the popular view of Imami jurists, whenever the crime of murder is committed in the forbidden months and the sanctuary of Mecca, the diyat is increased by one third, while the principle in murder, if it is intentional, is qisas and otherwise, diyat is prescribed. Therefore, the extra ransom needs to be proven. This descriptive-analytical research shows that the evidence of the famous saying is debatable. Because, on the one hand, the document of the narrations cited by them has been criticized and should not be the basis of this ruling, the well-known practice according to the view of some jurists can not compensate for this weakness of the document, and on the other hand, the alleged consensus Being on these narrations is a proof and it is not possible to legislate a ruling based on it. Therefore, it seems that the ruling on concentrating blood money in the forbidden months and the sanctuary of Mecca should be reconsidered.

Although the validity of the documents from the point of view of the parties to the transaction is in line with the payment of the price and delivery of the transaction documents; However, there will be no conciliation on the nature of the unit of credit opened and the condition of opening the lease on the underlying transaction. In some contracts, the performance of the obligation does not occur once to oblige the abstainer to perform the obligation by going to court or arbitration; Rather, the execution of a commitment is continuous and composed of several intertwined and complex commitments; In such a way that in case of opening a letter of credit, the customer must refer to the bank and complete the letter of credit opening application form and deliver it to the bank. In this regard, the first issue is the customer referring to the bank and completing the application form Consequently, the letter of credit issued by the bank (according to the abstract and independent description of the letter of credit) with the agreement of the parties, is another obligation of the customer and the next issue. In principle, banks do not issue and open letters of credit without obtaining sufficient documents and guarantees, so the customer must provide sufficient guarantees to the bank to open letters of credit and make their arrangements. The fulfillment of such complex, continuous and complex obligations, if not at the will of the customer, is not able to be performed correctly and in an acceptable manner by the obligor. The present article examines the jurisprudence and legal system of Iran, the International Convention on the Sale of Goods seeks to respond to the guarantee of violation of the condition of opening the LC in the basic transaction.

Transforming the traditional procedure into an electronic procedure with the idea of ​​material formalization of the litigation and its procedure means the elimination of material and paper tools and equipment in the procedure, which is directly due to the acceptance of information and communication technology in the procedure and its procedure. The influence of technology in various areas of the litigation process, as an inevitable thing, leads the litigation process towards materialization by removing paper, changing the concept of time and place from it, and as a result providing faster, easier and more reliable services. Despite the widespread benefits of the influence of these technologies in the judiciary, the implementation of this method of exchanging information and communication in the judiciary must be done in accordance with certain principles and adherence to them; The right of the parties to access the paper copy and the principle of the ability to deviate from the method of electronic information exchange and the principle of observing the defense rights of the parties. Each of this rights and principles assists the administration of fair trial which is affected by the elimination of material and paper tools and always bringing an apportunaty for court to control the prerequisites of e-justice; this control increase actually the power of court but finally results to due process and good enforcing of procedure.According to the authors, the world of litigation does not change with the advent of information and communication technology.

Privacy is one of the prominent rights of individuals in society. Do the deceased have the right to their privacy of personal information like the living? To answer this question, in spite of ethical and jurisprudential prohibition to the violation of deceased person's privacy, it seems since the deceased would lose the capacity to enjoy the right in question after their death, they can rarely be entitled to their right to privacy. Accordingly, when the deceased person has no competence to his/her privacy right, their heirs will not be regarded as their successors, though they can file a lawsuit for the losses related to them caused by the violation of their bequeather's privacy. Given that the two aforementioned options are rejected; It is necessary to examine the society as third alternative. In this regard, the society seems to be considered as the true beneficiary of the deceased person's privacy. This comment is due to the fact that the community incurs losses when the personal information of one of its members is revealed, albeit after his/her death. Thus, this basis is justifiable not only to protect the deceased's personal information, but also to reveal it as being in the public interest.