نشریه پژوهش های حقوق تطبیقی
سال شانزدهم شماره 2 (پیاپی 76، تابستان 1391)

The legal phenomenon is continuously in creation، elimination، changing and diversification. This characteristic of law، e. i. the evolution of the legal phenomenon that is a function of social phenomenon، is more common in the international law – which is in its primitive process of development. Indeed، the international law، in the spectrum of its origin of cosmology to the executive and administrative processes، is steadily in conversion. So its arena of sources is not an exception to that feature. Although soft law، as a new process of law-making، is a new instant of the sources of the international law، which has been well-established، yet there exists controversy and disagreement on the nature of soft law and in some aspects is troublesome. We are on the idea that by presentation of two different bases in analyzing the concept of soft law (or law)، one would be able to explain the definition of this relatively new phenomenon in the system of the sources of the international law. Accordingly، we could examine whether soft law is a legal issue or is of any other essence، which the former is corroborated and affirmed.

vindication have been presented، which are mainly considered as some significant tools for the defendant and، by their assistance، the verdict may be issued in his/her favor. However، none of the concepts mentioned in the Civil Procedure Law have not been well defined and separated from each other. In one comparative survey with jurisprudence in France and Arab countries، it was distinguished that obstacles of trial from the separated objections in cases which، because of the existence of the obstacle، the claim basically is not actionable، issuing the order of not auditing the claim has been predicted and proposed. Sometimes، because of the existence of the trial obstacle، there would be no need for the defense of the defendant in the nature of a claim and issuance of the abatement of action. Therefore، it is better that the legislator separates this way of defense in the law of our country as a method of defending the objections in order to reduce the number of the propounded claims to the courts predominantly.

Non-competition agreement as a protective tool for certain legitimate interests has special aspects، which have not been attended and analyzed in Iranian law. This paper، regarding the particular rules of American and European countries in this framework، provides a brief notion of the ongoing non-competition agreement is going to bring up detailed issues on its dissolution and clarify the principles on modification of non-competition agreement. The arguments and results of this article not only challenge the inflexible and traditional rules of Iranian law on this subject and make clear the necessity of revising in them، but also provide some patterns and solutions in confront of dissolving and adjusting of non-competition agreement for law.

Electoral rules and electoral systems are two differentiated concepts. Since، the electoral rules are only one of the factors in creation and regularization of every electoral system، notwithstanding، it is the most important. Winning in any electioneering is organized through numerical supremacy or manely quantitative variables. For all that depending on numerous political factors – including modelers’ initial impetus of Preferential Voting System to retain minorities'' rights in multi-cultural communities – some electoral systems – specifically Preferential Voting System – have succeeded to import certain qualitative variables in election''s essence and the ultimate result. In other words، there are mechanisms contrived in these systems by which a sole numerical superiority in the earned votes in favor of a certain party or a candidate does not ascertain the final result and the consequent elimination of other parties and candidates from the electioneering competition. Meanwhile، we have examined the preferential voting system in comparison with the plurality voting system، which has been used as a comparative method for the appraisal of electoral institutions. It can be proved that there is no correlation between the number of earned votes and winning the election by the use of correlation research method in the latter system; this leads to more plurality in the election’s dimensions. Regardless of every imperfections and shortcomings، in comparison with the other electoral systems particularly plurality voting system، the preferential voting system has provided more accurate mechanisms for the utmost reflection of the electoral tastes of the voters.

Strengthening، improvement and implementation of human rights are of most important areas in which the non-governmental organizations (NGOs) play a major role at the national، regional and international levels. The NGOs activities in the field of human rights، is backed by public and state institutes. Monitoring implementation of human rights standards at national، regional and international levels to a great extent depends on the NGOs measures and activities. In this process the international human rights regime operates mainly through an organized transnational network، in which public and private sectors join together and in which protection of human rights is considered as a global public policy. The global public policy-making for human rights in this sense is emerged from interconnectedness between the governmental organs، international organizations and civil society، where none of them is able to work separately to achieve its objectives. Moreover، the NGOs also play a complementary supervisory and executive role for other partners in the network in that without their presence the global human rights regime would lack the characteristic features of a comprehensive system. The historical development of NGOs contribution to human rights and the basic reasons for their participation result from the requirements of new international order and of the necessities as well as importance of human rights issues. Also، the social necessities in international community constitute the normative sources for the NGOs'' participation in policy-making، standardization and monitoring role in the field of human rights.

The legislator of the Islamic republic of Iran predicts bankruptcy of several liable in Article 251 of Commercial Law. According to this article، several questions are left unanswered: Whether the legislator protects from the holder in condition that several liable were bankrupt or not? Whether the holder has priority or not? What is the position of the United State’s law in the presumption that several liable were bankrupt? The just protection from the holder in Iranian law is joint and several liability of the liable. In Iranian law، the holder has not priority. In the United State’s law، liability of the liable is not joint and several، and also the holder has not priority. The legislator does not accept the theory of provision in the Iranian and the United State’s law.

When studying the French and Iranian contract law، it is difficult to reconcile all of it with a single approach. The mainstream، neoclassical approach، based on the assumption that rules have to be chosen such that maximize social wealth (or، at other times، lead to a Pareto-efficient outcome)، can help us to understand an important part of that body of law. But، as will be shown، certain French doctrines and Iranian Law of contract cannot be reconciled with neither a Paretian approach، nor a wealth maximizing approach. In some instances، the law seems to be more concerned with the safety of expectations. In the next two sections، we will examine the main doctrines and rules of the French and Iranian contract law، trying to identify those that are compatible with both principles and are compatible with only one.