فصلنامه مطالعات حقوق خصوصی
سال چهل و یکم شماره 4 (زمستان 1390)

The possibility of bringing action in rem, is a privilege recognized in common law particularly in the maritime regulations of common law countries. On this basis, plaintiff may, subject to specified conditions, bring action against some properties (ship, cargo,…) instead of their owners, in order to enforce many maritime claims and in the case of pronouncing judgment in his or her favor, the judgment will be enforced, solely, against the same property(defendant). In civilian countries, including France, action in rem, has no legal recognition. In Iranian law, also, notwithstanding the existence of some critical terms in Maritime Act which inspires the admission of action in rem, the whole maritime claims, shall be enforced by action in personam.

Solidarity Rights, formally, introduced by Karel Vasak as new human rights in 1979. He suggested that these rights, based on the fraternity and solidarity, are vehicles for reforming international relations especially for moralization, socialization and humanization of international law. This article studies theoretical basis of solidarity rights and will discuss whether the approach of 'generations of right's can contribute to the protection of human rights in general. To this end, the paper, firstly, considers the differences between main concepts for labeling these rights such as “third generation rights”, (Part I) and then, elaborates on seven theoretical justifications of these rights (Part II).

Bioethics is a novel branch in the field of applied normative ethics that analyze challenges and problems resulted from creation and development of new biotechnology. Nowadays necessity of prohibition in some scope of bioethics is attracted by some legalists and moralists. In this direction, one of the related issue about bioethics is use of penal sanctions protecting these prohibitions. There are different criteria for justifying the criminalization that give divers response to criminal reaction in bioethical subjects. Legal moralism has a maximum capacity for criminalization in these matters and the principle of harm and legal paternalism cant cover all of bioethical issues.

Despite its matchless impact and age-old functioning in the establishment of peace all through the history, the theory of natural law remains neglected among the popular theories at the international level. Domination of legal positivism, and schools of its like, has always blocked any natural healing to the ailing condition of the contemporary international system, hence some artificial and feigned methods have always been presented for this purpose. Given the fact that natural law lays the foundation for the attainment of natural justice, the present article is based on the premise that “natural justice serves as an enduring basis for the establishment of sustainable peace”. To this end, emphasis is put on the key issues of justice, security, and peace, which make up the three angles of a triangle formed around rules of natural law and human nature.

Good faith in a total categorization of the term, has classified to protective and obligatory. The obligatory aspect of good faith relates to contract law that implies correct behaviour, honesty and respect to others trust and interest. In this conception of the term, good faith implies action or disaction from the parties as a behavioural rule. The morality of the good faith denotes to the fact that this term has the capability to implement different roles in different stages of contract. This roles conventionally has the titles such as restricting and completing the rights and obligations of the parties, balancing the contract, interpretative the contract and also playing role as a foundation to other rules and principles.

Incest is a sexual intercourse between family members that called " close relatives ". For example fornication between father and daughter, mother and son, brother and sister, uncle and niece, aunt and nephew, grandfather and granddaughter, grandmother and grandson is incest. According to Islamic jurisprudence Punishment of sexual intercourse in normal circumstance is hundred whip but According to Shie jurisprudence death penalty is Punishment of sexual intercourse between close relatives. This Punishment for incest has been recognized by Iran Statutory Criminal law. Article 82 of Islamic Penal Code provided that Punishment for sexual intercourse between close relatives is death penalty. However in sunni jurisprudence – in compare whit shie jurisprudenc – death penalty give sentence for sexual intercourse between "congenial person", " foster relatives " and "marriage kinship".

Mediation is one of the most important methods for settlement of disputes. It may settle any disputes out of governmental courts and on private/confidential basis and quicker and cheaper than governmental courts. Parties may hold different sessions for settlement of disputes and the most important factors in further success of mediation method and concluding any settlement agreement are the personality of the Mediator and any intends of both parties in settlement of their disputes. As a result and by benefiting from mediation in most cases it is possible to settle any disputes out of governmental courts and reduce any compression of claims in governmental courts.

Among the important undirect taxes are import duties and tax, in whose process of collecting, there is always dispute between tax payer [merchant] and the customs office. Urgent as they are, these disputes are usually settled by tribunals other than public courts. Therefore, to preventing prolonged procedures, the disputes are settled, through administrative formalities, by the customs office. Otherwise, they are initially referred to quasi-judicial procedure (Initial Commission Customs Disputes) and then to Appeal Commission for Customs Disputes. Finally, the disputes will be referred to ultimate procedure, and done technically by "administrative Justice Court ".The tribunals have been examined in terms of correspondence with fair trial principles.

Developed technology, has enabled sophisticated computer software named as “Electronic agent” initiate and complete transactions without human intervention. Having considered the notion of electronic agents, this paper is going to consider their legal nature and analyze treatments taken by writers, international instruments, national laws and legal procedures on electronic agents. Finally this research makes clear that at present, software agent as a tool in concluding process of contract, needs some modifications and accordingly provides some solutions which can make it more efficient.

The evolution of the Security Council sanctions approach and its focus on individuals, groups and legal persons instead of States as traditional targets of the sanctions, and the procedures of adding a name to the consolidate list of a sanctions committee and removing it from that list without respecting the basic standards of the right to a fair trail or process, has provoked serious critics considering the Council legal obligation in this regard. While these procedures were amended, under the pressure from the General Assembly, European Countries, European Union and the others, but are not yet enough to meet the demands of the right to a fair trail or process.

In economic crimes, the criminal outcome, i.e. spoiling the economic system of the nation and extensive profiteering motivation are the two indexes suggestive of the difficulties and challenges present in the process of prevention of such crimes. The preventive measures, following the said indexes, should be both extensive and motivation-confounding. In this article some of the situational preventive measures taken for countering economic crimes, will be dealt with herein by placing emphasis on the criminal policy of Iran and the UN documents.

Unlike patent, there are not clear legal rules to protect know How in Iranian law, then intellectual property law theories require to afford protection to know haw and its owner. The protection rules may be provided under contractual bases or under law. Approaches of legal systems towards The terms and rules of the protection are different. In Iranian legal system some protection rules are found under both contract law and competition law but they do not afford protection completely then providing the supplementary protection rules (especially by jurisprudence) is necessary.

Among the more desired reforms of civil liability law, some appear as particularly useful. This is notably the case of the recognition of a new form of damages which call for the restitution, by the responsible party, of the proceeds he has derived from the illicit activity. Another suggestion could consist of completing an already widely undertaken evolution towards a rationalization of the judicial indemnification of bodily harms. Finally, the creation of group actions (class action) aimed at setting the framework for compensating mass damages would allow the sanctioning of a certain illicit behaviours which are not yet considered as such and the organisation of a compensation mechanism that is more egalitarian and less onerous than what is allowed in individual actions.

Personal security is a favorable state in which human being is secured that all his freedoms and rights are not violated, which will be increased and extended. Since in some of international documents, this right is explicitly mentioned and in Iranian constitutional law it is not expressly mentioned, it is necessary to study and analyze theories and examples for achieving the definition, which is a fundamental right in our constitutional law. Through research in the section of Rights of Nation in Iranian constitutional law, it has been discovered that although this highest legal document has not directly referred to personal security, it has discussed widely its issues and examples, and guaranteed its proper implementation. In the constitutional law some limited items are found that implicitly violate this right.

Subject of this article is the deprivation that relate to wives and their portion in patrimony of their husband. As most Imamiah’s jurists state; wives are deprived from possessing some objects in the case of husband’s death. In the other hand, some jurists mentioned that wives are same as other and that deprivation is not acceptable. Majority states that this statute belongs to a kind of wives that has no child. In the other hand minority states that this deprivation is belong to all wifes without any exclusion.Topic of this article is consideration of proofs in this case.

By prediction of Majlis as a legislatory organ and guardian council as a monitoring organ, it is imagined that securing legitimacy (necessary condition) and efficiency (sufficient condition) of the legislation is occurred simultaneously, but in considering to establishment of Expediency Council and confirmation of Majlis opinions in the matter of differences with guardian council observations the main legitimacy of in laws.The present analytical method in research in the first part, after introduction proposal of issue and reviewing of historical facts which leads to formation of expediency council, we will pay attention to concept of expedience in shiite jurisprudence Then on this basis it is focused on present ideas in showing of these in laws legal nature.

Consequences of environmental issues for have significantly affected on human life aspect, such as livelihood, nutrition, access to water and health. Most of these aspects are human rights issues which associated with environmental. In recent years, concerns about human rights violations due to the unhealthy environment are growing. Environmental planning approaches and tools have not developed to protect human rights and prevent violations of these rights. In such patients, efforts to explain an approach which can mainstream human rights considerations in the environmental planning consideration, is a necessary. This paper, in a theoretical way, Human Right Approach to Environmental Planning is being explained. The approach contains seven elements: 1. Considering all dimension of human rights; 2. considering responsibilities due to human rights; 3. Role of government and other institutions; 4. Considering Process and result; 5. Enabling people; 6. Casual Analysis and 7. Role of communication.