نشریه پژوهش های حقوق تطبیقی
سال پانزدهم شماره 2 (پیاپی 72، تابستان 1390)

This research investigates the bank ownership structure in Iran’s stock exchange market using comparative study in the developed countries such as USA and Australia in the one hand, and South American countries such as Chili on the other. It has been proven that while the form of corporate structure, whether in form of a joint-stock company or other forms, hardly affects the corporate efficiency, concentration has strong correlation with efficiency. It has been also found that, while in the developed countries the foreign banks efficiency is much less than that in the domestic ones, foreign banks play an important role in the efficiency of domestic banks in the developing countries, because their entrance in the latter carries expertise as well as technology. Since Iran is considered as a developing country, it is expected that the banks function in Iran is the same as in other developing countries. Consequently the experiences of such countries should be taken into consideration.

Hate speech that can briefly be defined as advocacy of hate and hatred based on nationality, race or religion, possesses a special situation in international law. Even a specific type of these speeches that leads to genocide is one of the few international crimes along with war crimes and crimes against humanity. Some events of the recent decades indicate that the racist movements, with the hate speeches as their main motive, are expanding in the world and even in the Europe that is supposed to be the pioneer of the human rights movement. This indicates the need for and the importance of discussion about this issue. This necessity has led that, besides the general prohibitions on the freedom of expression in the international instruments of human rights, some of the documents, including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination have specifically mentioned the prohibition of these speeches. However, the international instruments have been divided in defining this concept. This difference that especially is between the International Convention on the Elimination of All Forms of Racial Discrimination on the one side and other international instruments on the other has increased the importance of this concept's understanding.

Ratio (or reasoning) is the fundamental section of the analogical reasoning. According to Islamic jurisprudence, if the reason is known, the analogical reasoning is authorized. So they have tried to initiative the ways to obtaining the rules reason. Common law system is also based on definition of the judgment reason. According to common law thoughts, it is not enough to achieve similarities but it also should detect the ratio of decisions. Judges distinguish between the ratio of decisions and obiter dicta. It clearly shows that there are common concerns at both the of Islamic law and common law systems.

A futures contract is an agreement to buy or sell a specific amount of an asset at a particular price on a stipulated future date. A futures contract is a standardized exchange-traded agreement. One of the most important challenges about the validity of futures contracts is that if such contracts are kind of gambling. It seems that by using legal doctrines, judicial procedure and legislation development, English Law passed the mentioned challenge. In this paper, first, we investigate the approach under which English Law encounters this issue and the elements by which a transaction is a kind of gambling in Islamic Law. Then, regarding distinct differences between futures and gambling contracts, we try to eliminate the challenge and justify such transactions. We found that: first, gambling is similar to futures contracts from the viewpoint of encountering the risk; while, gambling is the creation of risk in order to risk; taking risk in futures market is encountering the risks that necessarily exist in free market economy. Second, in gambling, the base of gaining profit is probability, chance and random, and what a gambler gains is the speculative gain; yet, the base of gaining profit in futures contracts is market analysis. Third, gambling contract's concept includes win-lose, which is one of the elements of gambling contracts in Islamic Law; while, another profit is hidden in futures contracts whose concept differs from win-lose. This concept is Hedging or Speculation. In fact, futures markets are risk transfer systems. Forth, the framework of activity in gambling is playing a game. However, a futures market is a place for combining analyses in order to develop an economic financial activity rather than a place for gaming. Finally, we can justify futures contracts in Islamic Law by passing the challenge of being considered as a gambling.

Human trafficking is a process involving different criminal behaviors based on human trade to exploit them. Protocol to prevent, suppress and punish trafficking in persons, especially women and children (Palermo Protocol) defines the crime of human trafficking, which is committed by criminal groups to obtain financial or material benefits usually through crossing the borders of countries as organized and transnational. Nevertheless, this crime is not identified essentially organized in German law and convention on action against trafficking in human beings (Warsaw Convention). Warsaw Convention has explicitly identified the crime of human trafficking as violation of human rights since it ignores basic rights of human beings such as the right to select. It has also settled some tasks for governments to support victims. Human trafficking in Germany includes all forms of sexual and labour exploitations, and national/transnational trafficking. German legislation has devised some supportive strategies following the thoughts of human rights. In Iran, the so-called law of “combat against human trafficking” has not defined this crime as organized, and identifies it relevant just when accompanied by crossing the borders. Therefore, it is adequate to revise the law in addition to generalize it to all forms of national/transnational trafficking whereas being organized can intensify punishments of offenders. Islamic thoughts and human rights can further insist on supporting victims while joining the convention against transnational organized crime, and Palermo Protocol will contribute to cooperate with other countries in order to combat against human traffickers.

Penal populism has affected criminal policy of many countries in recent years. Under the impact of this approach, policymakers try to pass and enforce publicly admitted crime control policies, regardless of their scientific and theoretical basis. Penal populism has rooted in many factors such as media representation of crime, rising of public fear of crimes, nothing works idea, and election competitions. Its manifestations can clearly be seen on media representation of sex criminals, tendency to punitiveness, criminal policy making based on unpopular criminal events, and infringing of basic principles of criminal law. This article tries to in addition to describing and analyzing the conceptualization of penal populism, the contexts of arising and its manifestations in the penal policy of Iran, do a comparative study of penal systems in this regard.

After the change in the basis of government's legitimacy from divine right of monarchs to people's or nation's right to sovereignty in European's Political Philosophy, “Separation of Powers” has been raised as the basic principle of government by scholars and philosophers of politics. Later it leads to the birth of the term “Executive Power” in the legal-political literature. This term has encountered several changes in practical arena and has undergone many implications in different circumstances and eras. In this article, besides reviewing the nature of “Executive Power” from the attitude of the originators of the “Separation of Powers” theory, its bases and main tasks are analyzed, and by employing these study's results, the current approaches, i.e. classical/traditional and modern approaches are evaluated toward interpretation of the concept of “Executive Power”. Finally, highlighting the modern approach, which believes in extensive interpretation of this concept according to its possible purposes and main tasks, we emphasized that it is essential for parliament to appropriately supervise on the executive power to prevent it from derogation, not limiting it, which may decrease its efficiency.

Constitutional justice، in its general sense، means the set of methods and legal institutions that control law and other regulations by the constitution. Based on the type of look at the relationship between statutory law-constitution، parliament-justice، and private interest-public interest، and also based on the type of definition of the philosophy and function of separation of powers، we can observe two principals models of constitutional justice: 1) The American model in which the control over law is posterior، objective، decentralized and res judicata is relative، and 2) The European model in which the control of law is priori، abstract، centralized، and res judicata is absolute. In this paper، while addressing the general principles of constitutional justice، we study special patterns of each of the above models، especially in the two most important countries (i. e. The United States of America and France).