فصلنامه مطالعات حقوقی
سال چهاردهم شماره 4 (زمستان 1401)

The historical foundations of the establishment of a notary institution, have led to the special nature of this legal institution.The special legal nature of the notary institution has a direct impact on the regulatory legislations and regulations in this scope. The legal nature of the notary is different in the Latin and public notary systems, which has led to differences in the regulatory of this legal institution in the two notary systems. This raises the question of what is the difference between the legal nature of a notary in the Latin and public notary systems, and what effect does this have on the way this institution is regulated?This research, with a descriptive-analytical method and a comparative approach, examines the position of notaries as public servants and analyzes the dual nature of the notary institution, and states the reasons for the need for regulatory and how to do it in Latin and public notary systems.This concludes that the notary institution has a "quasi-public" nature. This necessitates its "regulation", unlike other free professions. This is more necessary in the civil law system because there are shortcomings in the notary services market and there is a need for positive outputs in this system. Hence, the Latin and general notary systems are different in terms of strictness of regulation

if the parents leave them, this means a refuge collapse to the children. The legislative system of the Islamic Republic of Iran has always efforted to minimize the adverse effects of such destruction by predicting social entities such as custody and meeting sessions. In this regard and based on legal approvals, the child and the non-custodian parent have the right to have meetings with each other according to judicial decision, and the prevention of the non-custodian parent has been deemed as crime. Surveys show that according to the reasons such as the necessity of devotion to relatives, the necessity of emotional training, quotations of clergymen, etc., the non-custodian father is obliged to set a meeting with the child in addition to the fact that the non-custodian parent and the child has the right to meet each other. Studying the subjected laws indicates that the legislator has only observed the subject of meeting from the perspective of the rights of non-custodian parent and has ignored his duties. So, regarding the partially irrecoverable effects of permanent break in one of the parents’ relationship with the child, it is suggested to approve the duties of non-custodian parent in addition to consideration of child envy, and to deem defiance of the mentioned duties as a crime.

One of the most common methods of financing is borrowing from banks and financial institutions, which the guarantee of loan repayment necessity, requires a security right for the lender in the borrower's property. due to the strategic importance of intellectual property rights, and especially inventions in obtaining credit, many countries have recognized its capacity as collateral. In this regard, it is necessary to study this approach in Iranian law, and this requires exploring the substantive issues of the mortgage contract in jurisprudence, ie the need for tangibility and the ability to possess the mortgaged property. thus: how can an invention be considered "tangible" and "possessable" and its mortgage be considered valid? Some authors have tried to place the invention in the category of intangible assets. however, restricting pledging examples in jurisprudence is based on benefits and are prohibited from expanding the scope of these examples. thus the other question is, how can patent rights be secured? In this paper, by descriptive-analytical method, it has been tried to investigate the nature of mortgage rules in terms of jurisprudence as to be mandatory or non mandatory, in order to examine the possibility of concluding a different collateral from the mortgage, and This, in turn, requires an analysis of the rules governing inventions in order to obtain a method for concluding this contract.

The distinction between procedural legal principles and procedural rules and techniques is one of the famous arguments in Iranian law. The argument may be astonishing for lawyers of different background. It comes from some statutory provisions authorizing the court to ignore the procedural rules in reviewing the case but at the same time to comply strictly with the procedural principles. In this essay, after introducing of the concepts of both rules and principles of procedural law, the idea of distinction between them is examined in terms of possibility or otherwise feasibility of simultaneous withdrawal of rules and compliance with principles.

In practice, legal systems are skeptical of the compulsory license as a restrictive means of patentee exclusive rights and some other instances of the intellectual properties. In the realm of IP rights, granting a compulsory license in the trademark field faces more challenges regarding the explicit prohibition of trademark compulsory licenses in TRIPS. As a result, for the first time, we tend to investigate the possibility of extending compulsory licenses in the field of patents into trademarks. Examining the primary function of trademarks in the market, comparing the characteristics of patent and trademark laws, in the shadow of international regulations, IP doctrine, and the jurisprudence of the legal systems specially United States and the European Union, this study aims to analyze the subject from two main perspectives: public interest and competition law considerations. Also, the subject of trademark compulsory license in the Iranian law has been addressed. It is concluded that the trademark compulsory license cannot be justified based on public interest and the protection of consumer rights or countering the anti-competitive behaviors of trademark holders. As a result, it is unlikely to accept compulsory licenses in the trademark field.

The essential function of natural law is to be the criterion of justice. And therefore, the relationship of natural law with the positivist approach to law, if it calls into question the said function, can lead to the passage of the theory of natural law. The doctrinal anguish of the first half of the 20th century resided in the development of a theory of natural law based on the interaction of reality and metaphysics. The pre-eminence of metaphysics over reality as the foundation of natural law debauchery on a natural law that has no relation to social realities. We must leave formal justice and we must not fear that this passage means the transition from justice to equity. The main question is how and to what extent the relationship between natural law and social variables exist. Stammbler's natural law with variable content, seems to question the inherent function of natural law; because it depends on contingency. Renard's natural law with progressive content is not, like Dabin's natural law with variable applications, exact. The anguish of having minimal metaphysics and the necessity of the passage from being to having to be requires the natural right to progressive applications.The author tries to substantiate his hypothesis, "natural rights with evolutionary implementations" by comparing the three models proposed by Dabin, Renard, and Stammler for the relationship between natural Law and the variable matter, and criticizing these three models.

Tradition and modernity are two forms of totalitarianism whose opposition has shaped the evolution of the system of action and reaction. Tradition, represented by hereditary affiliations and, ultimately, Shari'a, on the one hand, and modernity, which is supported by concepts such as humanism, rationalism, freedom, etc., on the other hand, has not protected criminal law as a social phenomenon from these developments. The circle of these developments in Iranian criminal law is moving around a wider axis. However, the influence of modernity has reached the point where the multiplicity of secondary sentences is supposed to be taken out of the state of exception and replaced by the original. However, prohibited acts, which sometimes resulted in severe punishments such as the death penalty, were seemingly unchanged in their original form and were supported by a strong background. This is the effect that has taken over the contraction and expansion of the judiciary and law enforcement. The present article answers the question why traditional criminal law is different from modern criminal law and which type is superior to the other? Using a descriptive-analytical method, it was found that the choice of collective conscience plays a central role in criminal tendencies, regardless of whether it is rational or not.

The production and use of automated unmanned maritime vehicles, as well as major changes in tools and methods of warfare are planned, their operation is automatic at all stages, and Their use in naval warfare poses serious challenges to humanitarian laws. It is therefore necessary to examine such systems in accordance with international law from the stage of production to operation. Therefore, this brief seeks to answer two questions; how does Article 36 of the First Additional Protocol regulate the production, development and use of automatic unmanned maritime vehicles? And how does international humanitarian law regulate the use of unmanned maritime vehicles in naval warfare? Therefore, the purpose of this study is to examine the principles governing the use of unmanned maritime vehicles from the perspective of humanitarian law, and to examine the legal obligations related to the production and pre-use of these devices from the perspective of international law. Research findings show that under international law, governments are required to review the compliance of these devices with humanitarian law before use and in the production process, and to expand them if they do. In the field, despite the fact that the degree of independence of unmanned maritime systems is expected to expand in the future, until then, their use must be under human control and supervision.

The Martens Clause is undoubtedly one of the fundamental provisions of contemporary legal order of the international community. In addition to other areas of international law, international criminal law has been an arena for the presence and objective impact of the Martens Clause and its constituent elements.The formulation of the Martens Clause of the principle of humanity and the requirements of public conscience as a determining point for entry into the international law documents, has formed part of the idea of international crimes, because these two related elements that are threatened by the commission of crimes, are an important part of the protected areas which justifies the existence of a crime under international criminal law. this article shows how the principle of humanity and public conscience resulting from the Martens Clause have played a role in the codification and formation of international crimes, especially crimes against humanity and genocide. Following the legal doctrine, international documents and jurisprudence, we conclude that by legal acceptance and an extensive and protective judicial interpretation of criminal court, the Clause has played a key role in criminalizing international crimes and attacks on human values. In fact, the culmination of the Clause in international criminal law has been manifested in filling legal gaps,combating impunity,immunity of perpetrators in international arena, and prosecuting those who violate human values

The principle of disputing parties' autonomy (Le principe dispositif) as a leading procedural principle indicates the initiative role of plaintiff in the civil proceedings and gives him/her the opportunity to modify the elements of actin brought. However, the prohibition of surprising in civil procedure and necessary respect for the rights of defense require that any modification of the elements of civil action regulated and arranged only in the form of legally recognized institutions under the relevant terms and conditions. The most important element of civil litigation is the cause of action, which seems to be a relatively complex and mysterious concept. The debate over the concept and nature of the cause of action has been somewhat discussed among legal writers, but still seems incomplete. In addition, the manner in which the cause of action is modified has received less attention, and the ambiguities in this area have lead to the complexity of the issues related to the cause of action. The main idea of the present article is based on the possibility of designing multiple causes to justify a single civil claim, and accordingly, the possibility of increasing or decreasing the number of causes of litigation, as well as the possibility of changing the cause of action has been accepted and an attempt has been made to comply with well-known standards and rules of civil procedure.

Recognition of the child’s right to return to his or her residence is a key component of the Convention on the Civil Aspects of International Child Abduction. Since this convention does not provide for the right of conditional protection or acceptance for member states, we intend to analyze the content of the articles of this convention to determine their compatibility with the legal principles and materials related to the crime of kidnapping, child custody, determining the children’s residence, illegal child transfer and other issues. The findings of the present study, which are done by the descriptive-analytical method and citing to library sources, show that there isn’t the same definition and common understanding of some basic concepts, between the Convention and the Iranian legal system. Accession to the Convention is incompatible with Juridical sovereignty of Iran over its citizens and with the indisputable principles of the Constitution and ordinary laws because it entrusts the right to investigating the claims of Iranian citizens on child custody and determination of his or her residence to non-Iranian juridical authorities and gives these authorities the right to interpret and review the compliance of individuals with Iranian law.