پژوهشنامه حقوق تطبیقی
سال هفتم شماره 2 (پیاپی 12، پاییز و زمستان 1402)

This analytical-descriptive research aims to study the possibility of invoking setoff against the negotiable instruments in English and Iranian law. One of the issues with negotiable instruments in English law is that the right to invoke the set-off against a holder's claim for payment is available to the liable of payment, including the maker, endorsers, and so on. Although objections can be raised with set-off as a means of defense, a definite distinction can be made between them in the negotiable instruments law. In Iranian law, with ambiguity in the position of legislator and silence of the judicial procedure, legal writers have taken contradictory views on this issue. While some people consider it as one of the effects of the principle of inadmissibility of objections against the holder in good faith or the implicit agreement of the parties on the non-occurrence of set-off, along with matters such as payment of the bill of exchange and substitution of the obligation, Others stated that the debt arising from the commercial document is subject to the general rule of set-off, which can be invoked. As a result, it seems that in English law, according to the consideration of set-off as a rule of procedure and negotiable instruments as an obligation without a condition of payment, while the defendant is prohibited from performing independent clearing against the holder, he can perform an integrated set-off and cite related. On the contrary, the evidence - which is deduced from some provisions of Iran's commercial law-shows that against the holder of the commercial document, setoff can absolutely be invoked.

Contractualization is the subject of the current reflection of French law on the rapid evolution of family law. Individualism, fundamentalism, and distancing from institutionalism and imperative rules are at the root of this trend. . It is true that many forbidden things have been broken in this way. Items only Limits such as some elements of personal status and legal parenthood are not . It is true that many forbidden things have been broken in this way. Items only Limits such as some elements of personal status and legal parenthood are not contracted.. The correct understanding of contractualization will be possible by recognizing the relationship of a legal system with contractualism. In French law, there is a serious view that contractualism, although in the service of the individual, will ultimately serve society and shape a kind of social regulation of family relations. In contrast, Iranian family law, given its Islamic origins, has a serious relationship with contracts. But this relationship is organized according to the comprehensiveand definite interest of man, in which no dimension of human existence is ignored and mixed with doubt and there is confidence in it. In this case, the interests of both the individual and society will be served. Proper knowledge of the boundaries of the imperative rules and protection of its capabilities can protect Iranian law from the harms of this trend while benefiting from contractualization.

Note 1, Article 43 of the Securities Market Law, the board of directors of the stock exchange, along with the arbitration board, is competent to deal with damage claims in the process of the initial offering of securities; The board of directors of the stock exchange, in addition to the dignity and duties of the board of directors of public joint-stock companies, has other competences and duties regarding being a publisher and self-regulating organization. The above-mentioned regulation needs to be carefully examined in terms of the type, scope and limits of jurisdiction of the board of directors of the stock exchangeAnd by examining it, it is discovered that it is unclear about the procedure and organization of the hearing, as well as the issuance of the opinion and its implementation. In addition, the board of directors lacks any legal-judicial dignity, and the handling of lawsuits in it is faced with a fundamental problem, and due to the jurisdiction of two authorities with different organizations, the possibility of conflicting opinions issued in a single matter is very high. However, in the laws of other countries, including the United States and the United Kingdom, although other institutions other than the court are responsible for dealing with violations, creating compromises, arbitration between the injured party and the causer of the damage, and similar cases in the process of the initial offer, the judicial investigation of the issue is the responsibility of the judicial system. A detailed examination of the regulations on the topic of discussion and its adaptation to other countries makes clear the necessity of its narrow interpretation, modification and completion in the current situation where the capital market needs support; Therefore, this article aims to emphasize the necessity of amending the relevant regulations by carefully examining the existing internal and external sources and writings, while examining the various aspects of the board of directors' competence;  Especially since the preparations for amending the law have already started.

Anan or sexual impotence in men is a hidden complication and disease, which cannot be proven by relying on some methods of proof of litigation that are proposed in Islamic jurisprudence and laws.  Some Imamiyyah and Sunni jurists believe that since the illness of Anan can only be diagnosed by the person himself, evidence such as testimony is not acceptable to prove Anan. And they don't even consider ways such as a forensic medical certificate that diagnoses the said disease through detailed tests;. However, in contrast to these jurists, another group of Islamic jurists considers the testimony of witnesses to prove the Anan and believe that if the witnesses’ testimony is through experts and evidence, which leads to definitive knowledge of a person's sexual impotence, it can be a document of the judge's decision. In Iranian Law, due to the silence of the law regarding the ways of proving the disease, the procedure of the courts is that in order to diagnose the mentioned disease, they refer the person to the forensic medicine and make the expert’s opinion and the forensic medical certificate the basis of the verdict. However, it is possible to prove the objectivity of a person according to other evidence such as confession and testimony that are used to prove legal claims. In Iraqi law, the opinion of the Forensic Medicine Commission is considered the only way to prove the sexual impotence of the couple and his suffering from ennin's disease. In Iraqi law, the opinion of the Forensic Medicine Commission is considered the only way to prove the sexual impotence of the couple and his suffering from Anan's disease.

Reconstruction of post-conflict relations in a post-conflict country is at the core of addressing the issue of peacebuilding and transitional justice as a means of establishing peace and preventing the recurrence of conflict in such societies. The main questions of the discussion are whether it is possible to create trust in fragmented and war-torn societies and how the reconstruction of relations between the involved parties achieved in the post-conflict period is. The current research is based on the opinion that the reconstruction of relations between the parties in the post-conflict period in war-torn societies through transitional justice tools can help consolidate peace and prevent the return of conflict. Transitional justice processes are among the influential factors that play a role in the peacebuilding process, especially in its communication dimension. The present research seeks to explain an integrated approach to the transitional justice process; an approach that involves rebuilding relationships through the elements and mechanisms of transitional justice, such as justice, truth-telling, acknowledgment, apology, forgiveness, and the like. Utilization of library data and international documents and procedures in the form of descriptive-analytical research has helped this study to prove this approach.

The "Document for the Protection of Children and Adolescents in Cyberspace" creates a national model for legal regulation and management of cyberspace regarding Iranian children and adolescents. The spirit of this document, which is protectionism, is realized through "creating a protected virtual environment for children and teenagers". The realization of this importance is through the development of content that meets the special needs of children and teenagers, classifying cyber services, the establishment of a support and monitoring system, and cultivating and promoting cyber knowledge and international interactions. In General Comment No. 25, by introducing a guiding framework for the protection of children in cyberspace, the Committee on Rights of the Child (CRC) has given authenticity to the "protection of the best interests of the child" in cyberspace. The content of this model includes the obligation to eliminate all forms of discrimination against children, protection of the child's best interests and attention to his views, and national policy making, national and international cooperation, allocation of resources, evaluation of virtual effects, virtual knowledge enhancement, monitoring, preparation for litigation. And compensation is the solution to realize this important. This research using the descriptive-analytical method and in a comparative way shows that the model of "protection document" with priority given to national considerations including cultural-Islamic values and efforts to develop a protected virtual environment on the basis of the national information network and (not International Information Network) aims to draw an independent legal framework but related to the international obligations of the Islamic Republic of Iran.

The issue of citizenship and acquired citizenship is one of the serious and challenging issues in research and legal processes. Acquired citizenship is the acquisition of new citizenship for a person after a period of time after birth; if a person acquires new citizenship shortly after birth, it is called acquired citizenship. The purpose of this research, which was carried out in a descriptiveanalyticalway, is to identify the effects of acquired citizenship in the legal systems of Iran and the countries of England and France. The reason for choosing these two legal systems is the laws in the field of citizenship and the progressiveness of the laws of these countries. The researcher seeks to answer the main question of the research that the effects of acquired citizenship in each of these What are legal systems like?Another question is, what are the similarities and differences between these works? The results of the research show that the effects of acquired citizenship in the legal system of Iran, France, and England include rights and duties; Persons who acquire the citizenship of these countries enjoy all the rights that are prescribed for ordinary citizens, but some Jobs are denied. The duties of a person who has acquired Iranian citizenship include things such as taxes, performing military service, obeying and recognizing the rights of the Iranian government, and respecting national dignity and affairs. Obtaining acquired citizenship in Iran, France, and England laws has effects on the wife (permanent and temporary marriage) and child (relative child, whether legitimate or illegitimate or child born from a surrogate mother and adopted child). The laws of England and France can attract talented people, but Iran's laws need to be revised. This revision may include new terms and works.

The Matter of entering the condition into the contract has received less attention from jurists.  Maybe this is because just signing means accepting all the provisions to make a contract. While the signature is a type of way that includes conditions.  There are other ways, such as notification and history or trading period. The main question of this essay is that, first, How many ways to enter a condition in the contract can be imagined? Secondly, if there is a heavy condition in the contract, what is the approach of English law and Islamic jurisprudence? Onerous terms may be entered into the contract in one of the three ways mentioned.   What English law has established as a rule with a correct understanding of business custom is the principle called the red hand, the absence of which is quite noticeable in Islamic jurisprudence. However, the mechanism of jurisprudence is similar for simple and heavy conditions, and it is the rule of action that is adhered to by signing the contract by the contractor, and the contractor is bound by the condition It gets heavy.This thesis proved with a comparative-approximate study that if the heavy conditions in the contract are not brought to the attention of the contracting party in a reasonable and unambiguous manner, the signature of the contracting party cannot be relied upon, and according to the principle of innocence in jurisprudence and the rule of interpretation against the drafter, ambiguity is in favor of the contracting party. It is interpreted. In Iranian jurisprudence and law, according to the existing implicit condition, the burden of proving the knowledge of the party to the provisions of the heavy conditions can be considered to be on the party. Therefore, the abuse of the contractor in the drafting of the contract will be closed to some extent and good faith will be observed in the preparation of the contract.

For many years, human rights discourse did not pay attention to issues related to the environment. After the formation of the environmental crisis, the topic has been raised whether environmental issues can have human rights dimensions (first layer) or whether human rights issues can also take on environmental dimensions (second layer). The present study follows an analytical-descriptive approach to describe some aspects of human rights and environmental issues, as well as some environmental aspects of human rights issues, and investigate how they are formed. The process of the formation of environmental human rights, especially after the Stockholm and Rio Declarations, shows that human rights (despite older documents) and the environment have developed in parallel until today. The right to clean water, the right to clean air, the right to a peaceful environment, the right to access environmental information, the right to participate in environmental decision-making, and the right to access justice in environmental issues are among the most important and famous components of the development of human rights. The authors’ basic assumption in response to the main question (Do environmental issues have human rights dimensions and can it be said that human rights issues take on environmental dimensions?) is that today, people are faced with a special perception of human rights that should be called the greening of human rights or "environmental human rights". The need to pay attention to the close relationship between human rights and the environment, including the fact that the realization of many human rights depends on the realization of a healthy environment and also environmental rights also require human rights for better implementation, can be the most important finding of this research.

Non-governmental organizations (NGOs), with their professional and non-political nature, play a fundamental role in promoting sustainable development and supporting the legal demands of citizens. These organizations have been praised for supplying innovative and people-oriented approaches to providing services, support, and empowerment; but in Iranian society, these organizations are in a state of disarray in such a way that they face many challenges in the way of establishment, supervision, financing, and liquidation, which will lead to the weakening of the public sphere. Getting rid of the existing reality and moving towards the desired situation requires the application of standards that can bring positive consequences for nongovernmental organizations. The current research aims to investigate the components of enhancement concerning non-governmental organizations in the laws and regulations of three countries of Iran, Armenia, and Canada. In terms of its descriptive purpose and research method, the current research will be in the form of collecting information through library study and collecting awards and valid legal documents, as well as reviewing and analyzing the content of these documents. The findings of the research show that Armenia has adopted comprehensive laws and regulations to support the activities of non-governmental organizations and has prepared official structures and committees to attend and consult with civil organizations. In addition, by using physical and virtual tools and official processes, it has provided capacities for the participation of NGOs. In Canada, there is no independent law regarding nonprofit organizations and these organizations operate according to the "Non-profit Organizations and Corporations Act". Iran continues to suffer from the lack of a comprehensive law for the activities of non-governmental organizations and there are no strong specific structures to attract the participation of these organizations.

Although it seems that the written document of the constitution regulates and controls the existing constitutional order in the written constitution countries, the reality is that "politics in progress" and existing political transactions are not only not fully under the control of the written document of the constitution, but even in some cases, politics has prevailed over rights and determines the way and direction of the implementation of legal norms. As a result, focusing on the form and format of the Constitution should not prevent the examination of the content and political realities in society. The present article, with a descriptive-analytical method and by studying the opinions of the Guardian Council and other available sources, seeks to answer the question that, does Iran's constitutional law function fully according to the written constitution? This study also tries to discover more about the legal or political nature of the basic order in Iran. The result of the research indicates that in Iran’s system of constitutional rights, unwritten and interpretable components link the written text of the constitution with some unwritten areas. On credit, Iran’s constitution is neither completely legal nor completely political, and has both written and unwritten aspects, and the opinions of the Guardian Council are a window to understand them.

Undoubtedly, the purpose of establishing the rules of civil liability is to compensate for the loss. In other words and from a technical point of view, a loss must be caused to compensate for it, responsibility should be created, and religion should be responsible. In fact, the occurrence and survival of civil liability depend on the current existence of damage, and quantity and quality are not involved in the principle of liability. In other words, the rule governing civil liability is the rule of all or nothing. That is, the responsibility is considered to exist when the loss is realized, and to be extinguished when it is not. Meanwhile, taking into account one of the conditions of claimable loss, which must be certain in the past and that one cannot be sentenced to compensation based on the mere possibility of loss, this research seeks to find an answer to this question: Considering Iran’s and France’s laws and regulations and through the prevention of civil liability, it is possible to imagine a place for future loss and the possibility of compensation? The findings of this research indicate that a possible loss is a loss that has the possibility of its realization in the future, but a future loss is a loss whose existence and realization in the future are certain and the necessity of its existence has been achieved in such a way that a country’s custom and law consider such losses to be definitely claimable.