فصلنامه مطالعات حقوقی
سال چهاردهم شماره 1 (بهار 1401)

The modern participated loan agreement in order to financing of huge commercial affair has recognized as collective mechanism in which all partners are not as parties of agreement but principal bank or financial institution conclude the loan agreement with borrower bilaterally behalf of partners and undertake to paying of all sum of loan to borrower himself. In the other words, despite assignment of some percentage of loan sum to other partner bank, the principal bank is only part of agreement with borrower who demand the performance of obligations by principal bank. Regarding to lack of any convention or model law in international trade law and non- modification of independent act in Iranian law system about participated loan agreement, the last theory can describe the nature of agreement better than other theories. Furthermore, this theory is more compatible than others theories with Islamic jurisprudence and principles and rules of Iranian law

" Other insurance" clause frequently has been one of the controversy issues in insurance policies which relates to double insurance matters, but this clause clarifies to what amount insures should compensate losses and damages and refer to others. The property or liability under more than one coverage for the same risk which ate valid at the same time and same beneficiary shall not lead to which the assured benefit more than he has suffered. So, to share the amount of compensation between insurers is the matter here which determined by "other insurance" clause which each insurer to what amount should compensate and substantially is he liable for compensation or not?Interactions between other insurance clauses according to types of this clause such as pro-rata, excess and escape sometimes make conflicts with no compatibility. In this case it worth analyzing the exact words of clauses and the intention of parties. Furthermore, interaction between other insurance clause and indemnity make some confusion to determine priority. In some cases, courts held indemnity precedes to other insurance regardless to its wording and in some others, courts held the loss and damage should be compensated due to other insurance clauses.

If a party to a criminal case confesses to a matter outside the presence of a judge and the witnesses testify to the confession, the evidentiary value of such testimony may be challenged. In Islamic jurisprudence, with exception of the Hanafi , others have mainly commented on the validity of the non-judicial confession testified by the witnesses, a position that has also been accepted in most of the penal systems of Muslim countries;Article 218 of Islamic Penal Code stipulates that confession to a judge is required only for Hodoud, but Article 119 of Code of Criminal Procedure extends this rule to absolute litigation. In the present study, with a descriptive analytical method, the jurisprudential principles of the subject have been explored and it is clear that such a condition has not been supported by strong reasons and the result of Applicability the rule of confession and Rationalist's fixed Way is the validity of the confession which is proved by the testimony of witnesses. the narrations which contain the condition of confession "in the presence of the Imam" also contain mainly defects which distort their validity. In addition, the possibility that the said condition is related to the proof of hadd in the presence of the Infallible Imam or that it can be carried on taqiyyah is not ruled out.

As a potential human being to be treated with respect, the fetus will have several rights including the right to health and hygiene. By taking the biological conditions of the fetus into account, any behavior of mothers, negative or positive, can influence fetal health and hygiene and therefore mother will bear responsibility. By taking this into account, the fetal vulnerability will prevent administering the right to health. Therefore, it is necessary to consider the free will of the mothers within the framework of imperative laws and regulations and compel them to observe fetal health and hygiene to not observe the ill generation and to avoid imposing physical and mental costs on family and society. Currently, there is no law or regulation explicitly obliging mothers to observe fetal health and hygiene. By using a descriptive and analytical approach, this research reviews the legal laws related the pregnant mothers' obligation to observe fetal health and hygiene and finally conclude that:based on laws specified in the constitution of the Islamic Republic of Iran, Civil Code, Civil Liability, Development Code, Bill of Rights, and Women Obligation, Obligation the mother to observe fetal health and hygiene is possible ; However, Due to the prevailing culture in the society and ignoring fetal rights, the obligations of the mother must be legislated.

In a free market, spending market participants in the form of private law institutions (law of contracts, civil liability, property rights) does not necessarily meet the objectives of competition law and will not have full competition. This is particularly due to the specialization of the legal profession and the factors such as Asymmetric information between lawyer and client makes this market in the event of failure and not satisfy the interests of the consumers of these services. This article is intended to express that in this issue what is the market sailure and what solutions can be offered. In short, we can say that the liberalization of the market and removing barriers to competition, must have a minimal supervision in the form of "regulation" exist to ensure quality of the service, In this paper, we express the characteristics of the market and then look at its failures and a variety of mechanisms to respond to it

Rescuing people from distress at sea is one of events to the Coastal State is involved. But some EU member states in recent years not only do not save people from distress at sea, but also they have begun overseas controls, interception asylum seekers and returning them from the High Seas, Exclusive Economic Zone and territorial sea to home or third state. Purpose and subject of this article is to study different dimensions of the Coastal State obligations in rescuing people from distress from the European Court of Human Rights’ view. The research method is analytical descriptive, based on requirements of the UNCLOS, the Asylum Convention and the European Court of Human Rights’ jurisprudence. Main research question is what is the International Law of the Sea approach to interception asylum seekers rescued from distress at sea? Research findings show that rescuing people from distress at sea based on the International Law of the Sea teachings is the Coastal State obligations and the rights of survivors. But the Coastal State’s approach is severe ban in the ECHR’ jurisprudence to overseas control and interception of ships carrying asylum seekers in distress at the High Sea to return them to the home or third state from the High Seas has led to ignoring its obligations and the rights of survivors in the UNCLOS.

From 1976 onwards, Michel Foucault began to study the state and state power in detail under the genealogy of the modern state. In the face of the linear and centralist views of power, which he saw them as a legal perspective to sovereignty, Foucault coined the concept of governmentality to analyze conflicting and often obscure roots of the present discourses, practices, and institutions. But since Foucault has dealt with this issue in a very scattered way and among his various writings and speeches, there is no coherent text in this field. Therefore, the purpose of this study is to examine the three descendants of the modern state, namely pastoral power, reason of state and liberalism, to determine how Foucault, by adopting a different approach to power arrangements, crossed the legal perspective and created a new foundation for the study of government. This perspective, which examines the lineages of the modern state on the basis of the triangle of governmental mentalities, rationalities and technologies, makes us to consider the concept of the state as a complex, multi-temporal phenomenon and a combination of various political techniques and different styles of government. From this point of view, the genealogy of the modern state can replace the theories that, by adopting a linear, essentialist, and theological perspective, create a flawed picture of historical developments

Acceptance of transferability of contracts is not specific to a particular contract and a general rule can be derived from it for all contracts. However, some jurists have believed the need for the consent of licensor to the free transfer of certain types of license agreements. Explaining the free transferability of the contract by the licensee and the position of the consent of licensor in the transferability of each type of license agreement is a specific question that should be answered by said that transfer of exclusive, sole licenses, individual licenses, trademark and know-how licenses is not possible except with the consent of the licensor. Looking at the laws of different nations, international documents as well as an analysis of US jurisprudence, the effects and functions of anti-transferability conditions in the contract were also considered.

In the new age with the advancement of new technologies, algorithms are present in almost all areas of our lives. In the world of law, a significant number of contracts are concluded by algorithms; In the meantime, "black box algorithmic contracts" are of particular importance. Because black box algorithms (artificial intelligence) operate completely independently in decision making and how they make decisions is unpredictable for the human user. How to form a constructive intention of black box algorithmic contracts and its attribution to human user is one of the issues that the present study seeks to address. it can be stated that black box algorithms, unlike simple and light box algorithms, operate independently in concluding contracts. In these contracts, the intention to write the contract constructively can not be attributed to the human user, but it is possible to compare the existence of will in black box algorithms (artificial intelligence) by comparing the criterion of will formation (clean power) and the qualities of intention formation in minor and fool, Proved. In this regard, it is necessary to review existing laws and adapt to new technologies in the field of competition law, privacy and data protection.

Software sales contracts are controversial among commentators of the United Nations Convention on Contracts for International Sale of Goods (CISG), as to whether they fall within the scope of the provisions of this convention. In this regard, some commentators have refused to include such contracts in the Convention, due to the language of the majority of the delegates present at the conference was English and the concept in their minds was "goods". Others, on the other hand, contemplate a broader scope for the convention. Both groups are looking for the uniformity of the Convention, fully aware of the consequences of not having unified rules in international trade. The main question is whether custom and standard software are goods? And can software in Iranian law be considered as an example of goods? In this paper, the above questions have been answered by an independent interpretive method and using the articles of the Convention. Finally, it is concluded that custom-made and standard software are both equally considered as Goods under the CISG and also in Iranian Law.

One of the causes that constitute hate crime is the gender identity of victims. Although trans people believe in a gender that opposite from which assigned at their birth, they behave against their biological identity. This behavior that resulted from their gender identity disorder makes them as a proper sibling for the victimizing of a hate crime. In this context, combatting violence against trans people is required to create a criminal and non-criminal strategy. In this way, the legislator of the United States at both Federal and State levels consider trans people as a protected group in hate crimes. In addition, non-criminal measures, including in the area of education on the gender identity disorder of trans people, anti-discrimination legislation in workplaces, education, legal assistance, and the fitting of shelters are considered to combat violence against trans people. On the other hand, Iranian legislator has not yet been created adequate protection policies in the face of violence based on gender identity disorder. All in all, the aim of this paper is to analyze the United States policy on combatting hate crime against trans people and then establish a comprehensive strategy on how to deal with the aforementioned issue.

AbstractThe right to freedom of assembly has been emphasized in international instruments as a human right. Findings of international human rights tribunals have complemented the international Instruments as judicial procedure. No international human rights tribunal on a global scale has been established among the international tribunals. However, among the international tribunals on a regional scale, some courts have established procedures on freedom of assembly. This article through a descriptive-analytical method seeks to examine restriction criteria for the freedom of assembly in the procedure of European Court of Human Rights. The research hypothesis in the article is that the European Court of Human Rights has accepted the minimum restrictions on freedom of assembly by states by meeting criteria higher than those set out in Article 11 of the Convention. The article after elaborating the judicial Procedure of this Court concludes that: First, national security considerations in exceptional circumstances can restrict freedom of assembly; Second, the freedom of assembly has priority over reasonable violation of public order; Third, the freedom of assembly should not restrict the rights and freedoms of other civilians (except as normal); Forth, states should tolerate organizers of associations.