نشریه پژوهش های حقوق تطبیقی
سال بیست و هفتم شماره 1 (پیاپی 119، بهار 1402)

In Iranian Law, the general rule is that damages for breach of contract are compensatory. However, punitive and deterrent damages are also regulated in some cases. Regarding the damages resulted from the contract, the issue of compensating the damages caused to the other party is a definite matter, but if the party in breach receives profits due to the breach of the contract (even if it causes damages to the other party or not), the restitution and claim of these profits is an ambiguous matter in Iranian Law. Considering that one of the important reasons for the breach of contract and the filing of numerous court cases as a result is the profiteering breach of the contract, in this article, while explaining the concept and explanation of the doctrine that governs the profits resulting from the breach of contract, conditions have been considered that these profits can be returned so that by punishing the violator of the contract, the violations that are not caused by the usual commercial hardships but with the purpose of gaining profit can be prevented. Currently, in Iranian Law, there is no place for gain-based damages, but there is a capacity to accept it, and it can be applied with a combination of conditions, these conditions are: 1. the violation must be intentional, 2. there must be an important and essential relationship between breach of contract and profit and, 3. absence of penalty clause in the contract.

Discriminatory transactions are contracts in which there is unjustified discrimination in one of them despite the fact that the circumstances are the same. In legal systems, special conditions for prohibition have been included. Some of these conditions are related to the contract itself; Such as the similarity of transactions and the condition of applying restrictions, which exist only in the United States. Some of these conditions are related to the parties to the contract, such as the exclusive power of the economic enterprise or the dominant economic situation. Some conditions are competitive legal conditions. Competitive conditions include disruption of competition, competitive damage and discrimination between competing buyers. The condition of entering damage to the interstate market in the United States and to the trade between the member countries, is foreseen in the European Union law; But it has not been relevant in Iran's legal system. Therefore, in all three legal systems, special conditions for prohibition have been stated. In America, these restrictions are more and most transactions are considered legal. The most important difference between the European Union and Iran is that, in the European Union, only those transactions which are stated by the economic enterprise in a dominant position are prohibited. This should be emphasized in Iranian law as well. Also, based on the appearance of Iranian law, the conditions for prohibiting unilateral discriminatory transactions are stricter than multilateral discriminatory transactions. Finally, based on the examination of the conditions of prohibition, legal articles have been proposed to amend the law.

According to the governing principles of medical law, the doctor's intervention in the patient's treatment requires the informed consent of the patient. This consent is achieved when the patient has expressed her/his consent by having sufficient information about the treatment process and its risks. In this study, the question related to the issue that what risks the doctor should inform the patient is answered by a descriptive-analytical method and a comparative approach in American and French law. Despite the different approaches, the two main criteria of "importance of risk" and "probability of risk" are the most fundamental influencing factors in determining the scope of the doctor's commitment in informing about the risks of treatment. In French law, based on the types of risk, "serious" and "common" risks are recognized as the subject of the doctor's obligation to inform, but in American law, based on the approach founded on the patient's perspective and with objective criterion, the doctor is obliged to inform about the risks that are typically important and basic from the patient's point of view, according to the "severity of the risk" and the "percentage of its occurrence". The new approach of English law is also an integrated approach based on "active interaction between doctor and patient" which, due to attention to the specific characteristics and conditions of the patient under treatment, brings maximum efficiency to realize informed consent. The same approach is also suggested in Iran law, which means that before treatment, the doctor, by examining the patient's condition, mood and views, in an active interaction, recognize important risks from the patient's point of view, and in cases where access to the patient's point of view, it was not possible to use the criterion of the reasonable patient.

Nowadays, using the artificial intelligence technologies in law-based criminal sciences has gained a significant place. In the field of substantive criminal law, topics such as the determination of criminal liability due to crimes caused by the performance of robots or self-driving cars are among the most interesting and, of course, the most controversial topics in this field. In the field of procedural criminal law, the use of this technology in the five stages of criminal proceedings has faced many discussions. The main question of this study is whether the technologies related to artificial intelligence can be applied in the process of criminal detection and prosecution or not and what are the challenges facing it in the assumption of application? The results of the current research indicate that the technologies related to artificial intelligence are playing a role in many countries today according to the requirements of different stages of criminal proceedings and taking into account the requirements of each crime. In terms of crime detection and prosecution, a variety of police tools for predicting the time and place of crime and facial recognition technologies (FRT) with the aim of facilitating police actions and moving from "reactive" police to "preventive" police in many parts of Europe and the United States United States have been developed and deployed. What causes the steps to be taken more slowly towards the expansion of the use of this technology in the field of criminal law in general and in the stage of crime detection and prosecution in particular is the existence of challenges such as violation of privacy and freedom of citizens, violation of presumption of innocence and the risk of militarization of criminal justice. The authors believe that using the artificial intelligence technology in the field of detecting and prosecuting crimes is useful and necessary in order to deal with the crime phenomenon as much as possible, but we should not be fascinated in this regard. Using this technology in the important stages of detecting and prosecuting crimes should not conflict with the general principles governing criminal proceedings as well as the rights and freedoms of individuals. In this regard, regulating and establishing special laws can reduce the upcoming concerns to some extent. This is the reason why the need to regulate artificial intelligence is widely discussed, especially in the European region. In this regard, reports and strategic guidelines have been predicted and published.

Personal data, as one of the key concepts in the field of personal data protection legislation, is defined in the General Data Protection Regulation as any information relating to an identified or identifiable natural person. Identifying a person directly or indirectly may be through data content or the purpose of data processing or the effect of data processing on the person. In EU law, to determine whether a natural person can be identified through data processing, all means that are reasonably likely to be used by the controller or processor must be taken into account, and to ensure whether there is a reasonable possibility to determine whether a natural person is present or not, all objective factors must be considered, such as the cost and time required for identification and the technology available at the time of processing. Based on the criterion of identifiability, data that may potentially lead to the identification of a person in the future is also covered by the law; such a standard can create the necessary dynamics in the laws. Iran's legislator has differentiated in the protection of private and non-private data and has limited compliance with processing rules to the first category, but the approach of the draft data protection bill has similarities with European Union and has provided broader protection, however, it needs to be amended by adding the criterion of identification to the legal definition, as well as the protection of the data of the deceased.

The litigants in civil proceedings have several rights. These rights may be abused. In Iran's Civil Procedure Law, the prohibition of the abuse of the right is not explicitly foreseen in the form of a legal article. Therefore, a fundamental question is raised that "is the principle of prohibition of abuse of rights accepted in civil proceedings or not?” Due to the silence of Iran's Civil Procedure Law, there may be doubts about the prohibition of abuse of rights in civil proceedings, but by using the library research method and citing other evidences and foundations (including legal principles, public order, ethics, proceedings’ purposes, etc.), this doubt will be resolved and it will be possible to prove the prohibition of abusing the right in civil proceedings. Although these foundations are also current in French law, the French legislator has not been satisfied with these foundations and has not remained silent regarding the prohibition of the abuse of the right, but has provided transparent and numerous legal articles to prohibit the abuse of the right.