پژوهشنامه حقوق تطبیقی
سال ششم شماره 2 (پیاپی 10، پاییز و زمستان 1401)

Man-made changes in the structure of new materials and compositions with the aim of meeting today's needs may cause long-term damage to which current civil liability cannot respond well. Finding the cause of damage in the long-lasting damages with their effects in the long run is a specialized issue that is beyond the capability of most individuals. Thus, first, the attribution of the causal relationship is complex and sometimes impossible. Second, the extent of the damage is such that even the richest people cannot compensate for it in some cases. Third, if there is financial capability, compensation will not be possible in most cases. Considering these items, there is a need for prevention in civil liability. In this regard, it is necessary to introduce a new literature in civil liability so that in case of such damages, preventive measures can be taken to reduce the damage. The data collection measure in this study was analytical-descriptive. Moreover, the preventive liability and the feasibility of choosing preventive and deterrent measures in civil liability have been investigated through valid jurisprudential and legal sources, laws and conventions at the national and international levels. Being inspired by jurisprudential capacities and based on various rules such as warning rule and obligation to prevention of possible damage, customary acceptance of prevention in international law and precautionary misconduct  can discuss about revolution in civil liability which has surfed beyond the limited boundaries of the traditional civil liability and prevented damage in the future.

In the last decade, the combination of blockchain, distributed ledger technology, and digital contracts has led to the invention of the modern form of smart contracts. In fact, smart contract is a self-executing computer software. Resolving the problem of breaches of obligations-especially among anonymous interlocutors in the international arena-, reducing the need to physically go to the court, eliminating major human interventions in the ratification and implementation of the provisions of the contract are some of the achievements of this initiative. One question which is raised is that in addition to the basic conditions of contracts mentioned in Article 190 of the Civil Code, ‘what legal rules are required in the design of such contracts, especially to protect the public non-legal entities?’ The present study was done by descriptive-analytical method to investigate the recent developments of French civil law in order to regulate special provisions of electronic contracts in compliance with Iranian law. Findings show that due to the inconsistency of the nature of smart contracts with current electronic legal contracts, some important legal rules such as good behavior and commitment of the parties to the full knowledge of the provisions of the contract may be violated in such contracts. In addition, there is a possibility of violation of personal or mental criteria governing the correctness of transactions, such as consent to conclude a contract in the electronic agency. As a result, using the jurisprudential rule of Estimar, the maximum authority of the electronic representative is to provide advice in concluding a contract, and the will of individuals cannot be considered as defeated by predetermined computer algorithms. Therefore, the proposed solution in order to express the full will of parties is to use smart combined contracts (code and text).

Increasing media diversity on the one hand, and the availability of traditional media (press, television) and modern media (cyberspace and social networks) on the other, have led criminologists to examine the effects of the media on crime. Carefully observed and studied Put. In this research, which has been prepared and arranged in a descriptive-analytical method, the issues raised have been around the answer to the basic question of ‘what negative role the media plays in increasing crime rates in societies from the perspective of criminology and its different approaches. The results and findings of the study confirm that traditional and modern media are effective in committing crime. This effect emanates from some cases such as the normalization of crime and the spread of violence, imitation, learning and an increase in Crime rates, change in the concept of crime, heroism, decline in media quality, disruption of the criminal justice process, the spread of prostitution, violation of privacy and the like. Different approaches to criminology in this regard also believe that the media through moral fear, broken window theory, social control theory, populist approach and the like will be effective in increasing crime. Other theories, such as the theory of prevailing ideology, pluralism, coercion and anomaly, labeling, and differential linking, agreed upon the effect of the media on crime.

The Lis Pendens doctrine has been recognized as a means of preventing parallel proceedings in private international law in most Roman-German countries. In Iranian law, this doctrine was accepted as one of the objections and obstacles to proceedings in domestic lawsuits according to paragraph 2 of Article 84 of the Code of Civil Procedure. However, in an international lawsuit explicitly under Article 971 of the Civil Code, the same lawsuit in a foreign court does not remove the jurisdiction of the Iranian court. This approach, which is based on the doctrine of national sovereignty and disregard for the principle of Comity for the action of the foreign court, has provoked criticism from some legal scholars. However, recognizing this doctrine in the private international law of countries can increase legal certainty, reduce trade and litigation costs, provide more confidence in international investment, and ultimately administer justice. Therefore, the aim of this study is to examine the approach of Roman-German legal systems, including the laws of France, Switzerland, and Italy. In this article, the possibility, conditions, and effects of accepting the Lis Pendens doctrine in private international law of Iran is explored, that will take a step towards the legal development of the country. These studies showed that in Iranian law, implementing legal and economic necessities require Lis pendens doctrine in international litigation under certain conditions.  An Iranian court is allowed to take a step towards the legal development of the country by implementing Lis Pendens doctorine. The Iranian court is allowed to close the case in favor of the jurisdiction of the foreign court until the final verdict is clarified.

The issue of breach of contract and the guarantee of performance resulting from it, is one of the important issues in contract law. Before the expiration of the obligation, based on the explicit announcement of the obligor or according to the current situation, one of the parties to the contract normally understands that the obligation will not be fulfilled in due time. In this case, 72 International Convention on the Sale of Goods 1980 stipulates "the existence of the right of termination on the basis of anticipation of infringement". However, no legal provision is specified in Iranian law. To what extent is this right of termination reflected in Iranian law? While examining Iranian law and citing general principles and rules, we seek to explain that on the one hand, the theory of termination of a contract before the due date is due to anticipation of violation in Iranian law and on the other hand, jurisprudential sources has no legislative history. The non-acceptance of the theory of termination of a contract does not contradict the rules governing the Iranian legal system and can be applied and accepted along with other rules.

The deadline for a third-party litigation in Iran is until the end of the first hearing, while in France until the end of the investigation .Third-party involvement in the appeal stage is one of the exceptions to the principle of prohibition of interference by persons other than the parties to the case. In two legal systems of Iran and France, these two Fights are acceptable in the appeal stage. A comparative study of the two entities in the two legal systems shows that in most rules they are similar and there are slight differences between them. The condition of acceptance of a lawsuit in France is the transformation of the lawsuit. The transformation of litigation occurs when new facts of truth are discovered. The jurisdiction of a judge to obtain a third party under certain conditions in French law is another difference with Iran. Third-party Claims in French law are admissible upon termination, while in Iran this is not possible. Some of the rules of third party intervention in the appeal stage are not mentioned in the law and must be determined by law.ation of the lawsuit. The transformation of litigation occurs when new facts of truth or discovered. The jurisdiction of a judge to obtain a third party under certain conditions in French law is another difference with Iran. Third-party Claims in French law are admissible upon termination, while in Iran this is not possible. Some of the rules of third party intervention in the appeal stage are not mentioned in the law and must be determined by law.

Over the past years, one of the most important topics in society today has been the issue of usury. Despite the religious emphasis on its prohibition, it is unfortunately increasing in our current society and people often refer to similar actions of banks in justifying their actions. Knowing how banks act in order to adopt the necessary policy to control it is important. The issue of usury is has been denounced based on religious practice, and since Muslim countries, including Egypt, like Iran, are trying to carry out religious orders, it is important to know how their banks deal with usury and how it complies with the measures taken. Iranian banks in this field can be an effective step towards the realization of Islamic economics, so in this article, using a comparative and analytical method, we have tried to study usury in Iranian and Egyptian banks so that we can determine its presence or absence in banks. It seems that there is no usury in Iran legally, but in practice, it is done in banks in a way that is not free from religious forms, and in Egypt, due to the way it is criminalized, usury is legal from what is seen in jurisprudence. Known as usury has taken a toll.

According to the principle of the necessity of contracts (Article 219 of the Civil Code), the contracts concluded between the parties and their legal representatives are mandatory. Therefore, according to this principle, the parties are obliged to fulfill their contractual obligations, but in some cases, one of the parties to the transaction refuses to fulfill his obligation. in this case, the guarantee of various executions is considered in the law for breaching the obligation. In this research, the position of the civil law and the Convention on the International Sale of Goods and English law in this regard have been investigated. Regarding the guarantee of the executing the violation of the condition, the jurists have put forward different ideas, and the civil law, based on the famous opinion of the Imami jurists, guarantees the longitudinal and sequential execution (i.e., first, the obligation of the obligee, if it is not possible to oblige. In the second stage, the obligation is fulfilled at the obligee's expense, and finally, it has accepted the termination of the contract). However, in the Convention on the International Sale of Goods and English Law, breaching the obligation, the obligation of the obligee is to fulfill the obligation, if the obligee wishes to approve the court and depends entirely on the opinion of the court. The possibility of terminating the contract by the obligee is exceptional and those limitations are considered.

E-voting is considered to mean the further enhancement and strengthening of democratic processes in the information of modern societies. Electronic voting must first comply with the existing legal and regulatory framework. In addition, e-voting should be technically implemented in a way that specifies the requirements and regulations to reach the maximum number of users. As a result, the purpose of this article is twofold. In the first place (first), to identify the set of general requirements of the Constitution that must be considered when designing an electronic voting system for general elections. This set of requirements will lead to the acceptable design of the specific principles of a law for the electronic voting system. In the second stage (second), by identifying the process of logical integration, the requirements of the electronic voting system are determined. These requirements are the result of design principles that have already been identified. This research seeks to find the answer to the question whether the electronic voting scheme can meet the legal requirements as established in modern information societies. In addition, what differences can be made between different types of electronic voting system requirements? The results using the descriptive-analytical method and collecting library documents show that at present the possibility of electronic voting should be considered only as a complementary tool for traditional electoral processes. The main reason for this phenomenon is the digital divide, the inherent distrust of electronic voting, as well as the inadequacy of existing technology tools to meet certain requirements.

Referring to the testimony of witnesses as one of the proofs is not a new phenomenon in legal systems, so that the testimony of eyewitnesses is often considered the only evidence or one of the main evidences in criminal cases to be a reason that is more or less associated with errors or mistakes. It should be kept in mind that false testimonies can have a negative impact on investigations and judicial proceedings. A topic that numerous psychological researches have confirmed the possibility of its realization. The proof of this issue is the issuing of wrongful convictions that were later canceled. Therefore, judges should be aware of the factors that can challenge such an argument. Nevertheless, to what extent is the knowledge of judges in this field? In this survey, the awareness of Iranian judges regarding the indicators related to the cognitive psychological aspect of witness testimony was examined and then a comparison was made with the views of their counterparts in the United States and Norway. The present research method is descriptive-analytical. The research community included 72 judges of Mashhad prosecutor's office and courts in 1400. The data collection method was using a researcher-made questionnaire with 33 questions that evaluated four indicators of memory, nervous stress, unconscious transference, and expectations. Data analysis was done using SPSS 24 version. Finally, the results obtained from this research have been compared with the results of the survey conducted in the countries of America and Norway. The average scores obtained from this research showed that Iranian judges' awareness of the impact of the expectations component (3.78) in witness testimony was higher among the respondents than other components. After that, the components of unconscious transfer (3.66), memory (3.13) and stress (3.02) are placed. In general, the views of Iranian judges were at a lower level than Norwegian and American judges.

The contract of sale has different stages, from occurrence effects to impact and its implementation. In the meantime, although most jurists believe that Zamane Darak is not the effect of the correct contract of sale, the legislator has considered it as one of the effects of correct sale. Therefore, the main issue is what is the role of the seller (original) ownership in the various stages of the contract of sale? The aim is to examine and compare the consequences of the seller's lack of ownership in Iranian civil law and in the British Commodity Sale Act. Based on the above-mentioned laws, the findings of this study show that, if the seller (original) is not the owner, the contract of sale is not corrupt by itself, but with the survival of the correct contract (with the ability to affect), the buyer does not become the owner of the third party. " It seems that this "inherent loss" in paragraph 2 of Article 362 of the Iranian Civil Code is called "Darak ". The common denominator of both kind of laws is that, the contract of sale with this "inherent loss" will be compensated and "effective" if the owner subsequently consents. Consequently, the buyer becomes the owner of the third party. In the meantime, in English law, it can be said that the seller's non-ownership does not invalidate; It Zamane Darak. In fact, in the absence of ownership, an inherent loss is formed because the buyer is considered the owner and the contract is valid, but not effective. The present article is of descriptive-analytical type and examines the question in a library method.

Today, social networks play an important role in the development of various occupations. To this end, employers hire employees who are familiar with the field to promote their products in cyberspace by opening an account in these networks. Basically, after the termination of the employment relationship, according to the financial value of the accounts, there is a dispute over various issues, including the issue of the owner of the account. The main question is who is the owner of the account? The laws of different countries, such as Iran and the United States, are neutral on this issue which has added to the complexity of the issue. However, to solve this challenge, various approaches have been proposed by thinkers, which are: Trade secret approach, contract law, intellectual property rights and finally the right of publicity. These approaches have all been developed in the context of American law. In recent years, most cases conflict with the ownership of the account when they refer to the courts. In Iranian legal literature, this issue has been less discussed. According to the Western legal literature, In the present article an attempt is made to examine the issue of ownership of accounts in social networks in a descriptive-analytical manner. In this way, two theories of “will” and then “labor” will be introduced as tools to identify the account holder in the Iranian legal system. In order to determine the main owner of the account, the judge should examine the explicit or implicit will of the employees and employers based on these theories. In the next step, the judge can refer to the custom; and finally, it is possible to determine the owner based on the labor theory; That is, a person who has caused the prosperity of the financial value of the account. Also, if none of the methods help, the last way is to rule on the joint ownership of the disputing parties.