مجله حقوق خصوصی
پیاپی 42 (بهار و تابستان 1402)

The nature and subject of guarantee in negotiable instruments is one of issues of legal systems subject to the Geneva Conventions and the common law systems. In Iranian law, there is different opinion regarding to it and issues arising from it, such as the possibility of claiming damages for loss of value. Based on the results of this research, The main effect of a aval, is an independent guarantee that obliged guarantor, despite the fact that the debt remains with the main debtor and that he bears responsibility of payment, and the subject of the guarantor's obligation is the "payment of the negotiable instrument", which has a financial value in itself. With the refusal or failure of the main obligor to pay the negotiable instruments, this subject is lost from the creditor's wealth, and as a result, it falls on the person who has guaranteed its occurrence and then the guarantor's liability is equal to the value of payment. Therefore, in case of non-payment of the negotiable instruments by the principal obligor, the guarantor must pay the value of the debt at the current price, which in inflationary conditions includes nominal amount of the debt and loss of its value.

Providing sustainable energy and energy efficiency is one of the main concerns of governments. Due to the limited amount of fossil resources and environmental considerations, it is inevitable for governments to implement efficiency and energy saving policies. It is very clear that the implementation of energy saving programs will not be possible without adequate financial resources. In the other words, governments, as the main energy supplier, cannot carry out energy saving without proper financing. In this article, financing based on energy saving has been studied in Iranian law, and it examines the Iran rules and regulations and also whether Iranian law have been a suitable legal basis for attraction investors or financiers for the implementation of efficiency projects or not. In this research, it was concluded that providing financial resources based on savings has many advantages compared to other methods, but the rules governing the energy market in general and the rules and regulations governing this method in particular should be revised and modified according to the experience of other countries.

Protecting intellectual property rights has always been of concern to creators and inventors. Despite domestic laws and certain international conventions, some aspects of intellectual property rights still remain uncertain. In Iran, the issue of intellectual property rights protection has been highlighted in the recent years. As there are several intellectual property rights claims per year it seems that one of the main reasons behind it is probably due to the lack of a management information system. In fact, a lack of such a system has led to different contradictory precedents as well as unjustified pronouncements. Furthermore, the jurisprudence reveals the inefficiency of the relevant organizations in tracking intellectual property rights. The present study analyses whether blockchain can be applied to protect intellectual property rights and how it can be implemented. It seems that blockchain has great potential in this ground. Therefore, having regarded the importance of protecting intellectual property rights in addition to the great potential of blockchain, the present paper discusses the dimensions of the issue through a qualitative research approach with library research tools. In the first section concepts and foundations and the second section, the methods of applying blockchain in protecting intellectual property rights will be surveyed.

The Code of Civil Procedure has stated the waiver of the right of appeal (Article 333) and the waiver of the right of Appeal to the Supreme Court (paragraph 4 of Article 369), but has remained silent on the possibility of dismissal of  the protest and third party objection. The necessity, form and nature of the agreement on the dismissal of the right to appeal as well as the time and scope of the dismissal of the appeal are among the issues that need to be analyzed and examined. The investigation of the case shows that the right to protest and retrial should also be considered dismissible, unless the defendant requests a retrial on the basis of fraud or forgery of the document which the judgment is based.. However, the waiver of the right of third party to object is not acceptable, because it entails the abolition of the fundamental right to sue. Dismissal of the complaint, except in the protest, must be agreed upon by the parties and in any case in writing, and it is not necessary that the agreement be in the form of a civil contract.

Article 264 of Civil Code. (Hereinafter “Civ.C”) under the title of the appurtenances of extinction of the obligations, lists 6 appurtenances. In the analysis of the articles, there are two approaches among jurists: Some consider them weak and some consider them acceptable. Jurists believe that the legislator was looking for a convergence between jurisprudence and the French system, and this caused confusion. Mixing the meanings of these institutions is one of the other causes. On the other hand, some consider the purpose of drafting Articles to solve real issues and not to simply comply with legal forms.

The first approach is stronger, The civil law has tried to gather the appurtenances of extinction of the obligations (based on the general theory of French obligations) and the factors for the dissolution or invalidation of a contract (Aqd) based on jurisprudence in one article. This effort has led to the compilation of baseless Article.The French Civ.C was not free from this confusion, but in the reforms of 2016, it became closer to the appurtenances of extinction.It is difficult to sum up the fundamental concepts of jurisprudence and French, but at least the Iranian Civ.C can separate the concept of "obligation" from the concept of "contract", and calculate the reasons for the ineffectiveness of each one separately.

Data collection has been done by referring to the laws and legal doctrine of France and Iran, the data has been discussed based on the legal-analytical method and evaluated with the comparative study method.

The companies' information disclosure mechanism in many countries, on the one hand, has a particular scope in terms of the subject, which is determined by the laws and regulations, and on the other hand, it follows several principles, the most important of which are the principle of timely, correctness and comprehensibility of information. These principles are also accepted in Iran's legal system, but their implementation in practice is faced with ambiguities and problems such as confidentiality of information, loss to the company, and conflicts of interests of managers. For this reason, considering the importance of the subject and the existing challenges, the current article has investigated it in the legal systems of Iran and the United States of America with a descriptive-analytical method based on library studies. The findings of this article indicate that the legal systems of the two countries have many similar rules in the field of information disclosure; However, in Iran, a large part of the challenges in the field of information disclosure of companies is due to the ambiguity or inadequacy of the legal guarantee; This is although, in the USA legal system, the performance guarantee system does not have such defects.

Legal protection of trademarks in first to file systems is subject to registration of trademarks. Yet, the important question is that if a person makes using from the trademark without complying the registration formalities, whether can he/she claim legal protection based on this prior use or not? It should be said that despite the fact that trademark registration creates an exclusive right, it is not possible to completely ignore the prior use of the trademark as well as the reputation achieved by trademarks used in commercial markets and rights of prior users cannot be denied simply because those marks are not registered. The present research tries to analyze the efforts of various legal systems in weighing and adjusting the need for trademark registration on the one hand and the need to protect the rights arising from the prior use and acquired rights of prior users and try to prevent consumers from being misled, and seeks to enumerate the conditions and criteria of applying the right of priority due to use based on the existing legislative and judicial sources of legal systems studied. The authors have considered the verdicts of domestic and foreign courts, the legal texts of countries and international documents.

The meaning of the triple claims is the three lawsuits of forcible possession, obstruction and disturbance of the right. In dealing with these triple lawsuits, the legislator considered public order, maintaining the status quo, and the need for the special attention of the judge in following the proceedings. Contrary to its established practice, Legislator does not address the nature of the dispute and adjudication as the purpose of triple claims trial, rather, the main purpose of this trial is "settlement of dispute". By gathering and studying judgements related to the topic of this research, it was observed that there exists fundamental dissension and diversity. Most judgments 1llustrate that not only judges do not pay due attention to the purpose of adjudication, they also are ignorant of rationale behind prediction of this type of claims. The latest version of the Civil Procedure Code (adopted in 1379) supports possession regardless of whether it IS the basis of ownership - contrary to the former version that would support possession which was the basis of ownership - and so it appears that this version favors "prohibition of a personal adjudication" in prediction of triple seizure claims cases. Therefore, it can be stated that, in the current situation, the legal basis for the triple claims is "prohibition of personal adjudication" which bears aspects of public order as well as maintenance of social peace.

Pension funds in order to be able to fulfill their obligations to the insured, mainly invest the funds received from the insured. These investments can be inside or outside the territory of the country where the fund was established and the latter can be through direct or indirect investment. Considering the importance of foreign investment for pension funds, this article has investigated the necessities, methods and challenges of this issue using the descriptive-analytical method and based on library studies with a comparative approach and the situation of Iran's pension funds has been examined in relation to each of these issues. The findings of this research show that in the present era, many pension funds have started foreign investment (mainly indirect type) based on the necessity of reducing investment risks, the limitation of the domestic capital market, and the low return on investment in the domestic market of their country. However, the foreign investment of pension funds in some countries is facing challenges and problems, some of which are legal and others are rooted in non-legal issues, especially economic issues. Although the foreign investment of Iran's pension funds has been accepted in the legal system of Iran, but due to legal and non-legal challenges, these financial institutions have not made foreign investment so far.

Nowadays, it is necessary to adapt regulations to the challenges of new technology. Liability policies have substantial economic and social impacts. Therefore, choosing a clear and coherent civil liability regime for artificial intelligence will be very crucial. National rules are divergent and provide varying degrees of flexibility to adjust to the challenges of AI. Fault-based liability is a general presumption in most European legal systems.

It is descriptive-analytical through the analysis of relevant materials and legal analysis methods with comparative study in European documents.

The comparative analysis to choose the basis liability for AI has focused on the four general groups of situations commonly covered in national law by strict liability provisions. According to a recent European Parliament resolution submitted to the European Commission as a proposal, it has been provided a strict liability for the operator of the "high-risk" AI system. Where multiple operators are involved, they should be jointly and severally liable. Other AI systems would be subject to a fault-based liability regime. In Iranian law, the AI liability can be explained as the liability for the acts of others based on customary citation. When there are several responsible, the shared responsibility is justifiable.

The increase of sanctions during the last two decades, especially unilateral sanctions, has created numerous legal issues, especially in contractual disputes before national courts. This question is raised, what effect do sanctions imposed by the country or an institution other than the country where the court is located have on the applicable laws and contractual obligations raised in the process of dealing with contractual disputes before that court? It is clear that the court located in the sanctioning country take into consideration the sanctions imposed by that country. In such a case and in case of conflict of sanctions with the rights and obligations of the litigants, the court will adhere to those sanctions in its final ruling. Now, can this court consider the sanctions imposed by third countries and institutions in the process of describing, interpreting and applying legal and contractual obligations? Therefore, in this article, the judicial practice of the UK’s courts in facing the issue of sanctions with foreign origin was evaluated. Finally, it became clear that legal procedure in this field in Britain is not unified; In some cases, the court ruled based on considerations related to UK foreign policy, and the sanctions of the third government were given effect, but in other cases, the sanctions were not given effect regardless of these considerations.

In this article, an attempt is made to explain the various aspects of the Company managers' use of the beneficiaries of the information they have because of their managerial position and Iran legal shortcomings in the light of fiduciary responsibilities of managers. For this reason, first, the legal bases of board of directors responsibility in commercial companies are explained. Then, the types of fiduciary requirements of managers in commercial companies and approaches to fiduciary responsibility are also examined. In the following, it lists the guarantee of implementation of the use of financial information. According to the author, non-abuse of information is also part of the fiduciary requirements, and managers as company employees must return to the company any use they have received from exercising management powers. For this reason, the purpose of examining this issue is the pathology of Iran's legal system regarding the fiduciary responsibility of managers.