فصلنامه مطالعات حقوق خصوصی
سال چهلم شماره 3 (پاییز 1389)

A large number of maritime claims, are entitled to a legal protection that is established at the time of creation of the claim and subsequently, maritime lien in favour of the creditor. National regulations of maritime liens, dates back to ancient laws and customs and In order to removing differences of theses regulations, some international conventions on unification of certain rules relating to maritime liens, have been adopted. Maritime lien, create rights of priority and prosecution for the creditor. so, it is naturally a kind of security or encumbrance. In this research, the concept and nature of maritime lien is studied and meanwhile, we study, critically, Iranian maritime Act which, there is confusion in some of its sections between the concept and nature of (maritime claim) and (maritime lien).

One of the most important questions in international sale of goods contracts is withholding performance or suspension of performance due to anticipatpry breach.When it becomes clear that one of the parties will not be able to perform his obligation according to the contract in the future, naturally and logically, the other party is entitled to suspend his performance. But the main question which remains is that when and how a party is legally entitled to suspend his performance.In oder to answer this question, in this article I have discussed the grounds of suspension, stoppage in transit, providing assurance and the effect of failure to give notice of suspension. The base of study is UN convention on contracts for the international sale of goods (CISG).

International business disputes are usually resolved through the use of international commercial arbitration. However, beside the formation of the ICA as a transnational reference to resolve the business disputes, a particular legal system, distinctive from national and international legal systems, was gradually set up and called "Lex Mercatoria", with the main distinction of independence from the state or government. Today, arbitral awards upon Lex Mercatoria are widely recognized and enforced in a great number of legal systems and international documents.In Iran, although by approving the "ICA Act" and joining the New York convention, some restrictions on the enforcement of arbitral awards which are based on Lex Mercatoria were removed, some other measures including the amendment of the regulations for explicitly accept this rules, limiting the number of revocation on this awards, and improving the legal procedures to limit the concept of public order are required.

The owner of the aircraft or the enterprise which benefits from its use or operation may have civil liability for injuries to persons or property on the land or water or in the sky. Regarding this liability many questions can be raised: Who is the responsible person and what are the harmful acts and damages which can be resulted from using aircraft and how can harmonize the property rights of persons on the land or water with the right of flying aircrafts? What is the foundation of liability: Fault or strict liability? Using comparative study, we have answered to these questions and in addition to description of the present situation of legal systems, some proposals have been offered to remove the defects and fill the gaps of Iran's legal system.

Determining the competent court in electronic consumer contracts is considered an essential matter in e.commerce law. But it becomes more important when consumer contracts are at issue, because of his/her need to be protected.In this paper, first come contractual clauses which determine the competenet court and their conditions and restrictions, then are studied the connecting factors that are used to determine such a court in case the parties have failed to make a choice and their relevance in Cyber-space and the last part concerns the exceptional rules of consumer contracts.

Abstract:The death, dismissal, resignation, absence or sickness exceeding a period of two months, lasting the period or other reasons like these are the factors meeting of the presidency's interim in Iran. The death is according to the French Constitution an example of the vacancy. The dismissal of the President is possible with the political and judicial mechanisms. The dismissal of the President in France is possible only by the Parliament in the framework of the High Court. The resignation of the President in Iran requires the acceptance of the Leader, but the President in France may resign without the need to the acceptance of special institution or authority. The President absence in Iran is different with the vacancy in France. The absence or sickness of the President for a period of two months is an example of hindrance in France. The Iranian Constitution legislator with determining “other reasons like these” has placed all cases of vacancy or decisive hindrance in the group of factors meeting of presidency's interim.

The conditions of the force majeure play an important role for the impact of this factor to be recognized in the people’s responsibility. Studying the new practices of the French cour de cassation and the approaches of the legal writers are indicative of new approaches towards two elements of unforseeability and being of an external nature in the non-contractual obligations. Therefore, unforseability in responsibility and lack of it, is not effective in the release from responsibility and unfrseability is an indication of non-preventability. This approach has been remarkably considered by the Imamiea Fiq and has been accepted without any changes in the Islamic Criminal Code. The element of being an external nature is not considered important in the liability resulting from the act of other in the non-contractual obligations, although this element is effective in the responsibility resulting from the act of other and things.

The necessity of establishing IP courts is one of the most important disputes in legal societies. This attitude has become more crucial among the southern East Asian countries. While Singapore concentrates on copyright issues, Japan and Korea, like European countries, pay more attention to the Industrial Property subjects. Under such circumstances not only judicial courts but also other courts are eligible to make appropriate decisions. In Iran, Bill of Commercial Procedure provides that every IP case should be heard by Commercial Court. However, it does not have any provision about Technical Advisors who are perfect in IP, and this could be considered as a shortcoming.

The major objective of this article is to introduce the institution of ombudsman as one of the most common institutions in administrative law in many countries. Having this goal in mind, in the first section, the authors endeavor to analyze the course of development of the institution of ombudsman, as well as its significance and functions. In the second section, they present a score of cases of successful use of this institution. Finally, they try to find answers to the following questions: Is there any similar institution in Iran's administrative law? If the answer is yes, does this Iranian institution operate as a proper ombudsman or should we establish an ombudsman of Iranian type?

The releasing prosecution order excution is a new establishment at the criminal procedure law in 1378 wich hasnt had antecendent up to now and we know that, being influenced, of the jurist, from victimilogie knowledjment wich is given in investigating of justice and also in complaining and prosecution and totally in criminal struggle fate, more value to the favourits of plaintiff and on the other hand we can know the base of that wich is given from more advanced situation wich is named restorative justice. the jurist has predicted this award in the section wich is related to the terminate stage but the possibility of being issued this award is at the prosecution and at the primitive researches stage. by issuing this award the case wouldn’t closed to that would nat be enjoyed of as a issue prosecution, so ther isn"t the possibility of being complained from plaintiff. The jurist predicted the releasing prosecution order execution as a objectionable award, so because figuring being objectionable of this award is a sustain to the accuser.

One of the ways for discovering the Islamic laws is referring to wise men custom and practice (Banae Oghala). Most of the past Islamic jurisprudents (Shariat Scientists) believe that the condition of its validity is being of that custom or its criteria in the age of the Masoom (p.). A new theory has been advanced in this article in which many of the new wise men customs will be valid in some special circumstances without needing to being in that age. The significant usage of this theory is for the finding of the Islamic foundation for many new legal systems like intellectual property law.

Although the Rights to Retraction and Replacement of defective Goods were provided in national laws of many countries, these rights to safe goods were not. The main question is that: is there Rights to Retraction and Replacement of safe Goods for consumer? If the answer is positive, what are their foundations? Unfortunately, there is not any article about this practical subject; therefore, this article tries to consider legal and economic basis of these two rights in Iran. It constitutes two sections: the first section surveys legal basis and the second section considers economic foundations.

In this paper, we analysis the concept and importance of property rights in classical and Institutional economic thought schools. In doing so, we analysis the thoughts of Luck, Adam Smith, Say, Ricardo, Malthus, Mill, Marx, Engels, marshal (some classical economists), Coase, Demsetz, North, and DoSoto (some New Institutional Economists). The results of the paper revealed that:1) Classical economists assumed that, property rights is given. But:2) New Institutional Economists analysis that, property rights is endogenous.The results of this paper emphasized on the importance of institutional economics analysis- especially economics of property rights- as a complementary to traditional analysis.

The constituional law is repleted with regulations, a full understanding of which is possible through seeking thier sources. The distinguishing feature of this field of law is a strong hiearchy of norms within its provisions. The constitution is on the top of pyramid of rules since it`s legislated by the constituional convention and its amemdments are done by the revision power of the constituional which both are superior to constituted or public powers. In some countries, the organics acts are placed after the constitution rules in the hiearchy of norms. Their ratification and alteration are different from the ordinary acts. In addition to observatory institute`s decisions and interpretation on conformity of ordinary acts with the constitution, the act of parliament have a participation in formation and alteration of the constituion sources although we should not close our eyes on the role of religious sources and constitutional law costumes and finally the doctrine role must be taken into account.

Equity in settlement of foreign investment disputes Regard of Equity in judicial and non-judicial settlement of disputes is necessary. Because of the international area of justice in the foreign investment disputes, the equity is more important in these cases. Study of international review shows the following and predication of the equity in the adjudges. So that the equity is the basic principle in the grate legal systems, study and apply of it causes to the procedural justice and legal security which achieve foreign investment. Some ones take the equity as similar of equality but there is some differences which will be studied in this text as same as the sources and situation of equity in settlement of foreign investment disputes.

The mines are an important section of national heritage and public domain. in legal aspect there are several theories about the mines such as; ownership; public domain and non-proper tier things. some of the Islamic jurists believe mines are ANFAL and others say they are non-proper tier things. although the prohibition or restriction in exploitation of mine is useful because of fairly distribution of incomes and common properties but this approach sometimes leads on obstacle in economical progress. even in common oil mines areas between Iran and neighbors countries. these prohibition and restriction lead to illegal exploitation by foreigner countries and it is harmful for our national interests. in this research, I am going to analyze legal resources and bases for compatibility these two necessities.

The mental disabled are not regarded responsible for their harmful behavior as they are unable to realize the harmful effect of their conduct. Thus their behavior cannot be considered as culpable and they are not at fault in a moral sense. However French law (art. 489- 2 code civil) and Iranian law (art. 1216 Iranian civil code), impose legal liability to such persons for their tortiuos behavior. French law deems liability for such people for their harmful behavior through applying an objective criterion of negligence. Iranian law makes a distinction between etlaf (harm is caused directly) and tasbeeb (harm is caused indirectly). But the common sense never accepts to impute such negligence to a person with mental disability. Therefore, where an insane and sane both participate in a harmful act, only the sane person is treated as being liable by adopting a subjective standard.

The legal texts of WTO consist of about 60 agreements, annexes, decisions and understandings containing so many obligations which should be observed and enforced by member states. Enforcement of these numereous obligations requires effective dispute settlement mechanisms to guarantee the proper function of the system. In WTO two main mechanisms have been designed for this purpose. The first is to control and supervising the proper implementing of the obligations through supervisory organs such as Ministerial Conference, General Council, Goods Council, Services Council and TRIPS Council. The second main mechanism is restoring to dispute settlement body that all member states have accepted its compulsory jurisdiction. This body in addition to settling the disputes, monitors the implementation of the rulings and recommendations, and has the power to authorize retaliation when a country does not comply with a ruling. These two mechanisms seem to be effective to enforce the obligations in WTO.

In common law systems, sentencing is an independent stage and completely separate from the stage of conviction. For this and the fact that these legal systems traditionally impose very few limits on the judges discharging the sentencing function, sentencing guidelines are issued by the appeal court judges. Within the Civil systems on the other hand this is carried out knowing that this procedure is overseen by the legislator. The aim is to achieve consistency in the justification and imposition of the sentences, that will be considered below.

In the framework of Non-Proliferation Treaty (NPT) it has been enumerated three objectives as follow: 1) Peaceful use of nuclear energy; 2) Non-proliferation of nuclear weapons and 3) Nuclear disarmament. The writers in this article have studied and analyzed multilateral aspects of the right of peaceful use of nuclear energy, and interpretation of some NPT articles (1, 2 and 4).In the conclusion it has been declared some suggestions in this framework.

One of the special liability is the liability of proprietor of building.Sometime the citizen sustain a loss from the destruction of a building and for this reason in evry legal systems the proprietor or the guard of building is responsible. In the law of Rom the proprietor was responsible and this liability has been entered into the article 1386 of French civil code and article 333 of iranian civil code.In French law the doctrine and jurisprudence have analyzed this liability but there is no analysis in Iran. With the law of appartements and with attention that the many persons have hand in the construction of a building consideration as to liability is necessary.