مجله نامه مفید
پیاپی 97 (تابستان 1392)

In any legal study on political institutions, what has priority is to examine the role and functions of the official structures as legal phenomena in the context of social forces in political society so that, through studying the political regime as described in the constitution in the light of external variables, the political regime as actually exists could be explored. Thus before embarking on any legal study on the status and functions of the presidency, a distinction must be recognized between institutional factors and non-institutional ones, individual elements and social ones that play a role in the scientific study. These variables help us illustrate existing data and findings on status and the functions the president has, officially or actually, in different political regimes (including the president of the Islamic Republic of Iran). Amongst these, factors such as how to elect the president, the official status of president, presidential powers as well as duties and immunities, in turn, may contribute to understanding the office of the presidency in different presidential regimes.

In systems of judicial duality and all legal systems that are experiencing a special judge for the administrative cases, the issue of e determining the scope of jurisdiction is always important. This question is not only dependent on the will of the legislator but the judge must also seek the appropriate criteria considering the foundations and requirements of his/her legal system.In this article, by offering a new classification of criteria for the competence of administrative courts in several countries, and by a critical study, we show that the Iranian administrative judge may adopt which criteria by which reasons.We present two types of criteria: judicial criteria and administrative criteria. Administrative criteria are related to method, aim, or administrative wrong and the quality of the relationship between government and citizen. Judicial criteria are considered to consist of the nature of remedy sought, nature of the judicial proceedings and personality of the parties.In France interests of justice rather than administrative criteria are adopted while in Iran jurisdictional criteria are followed. In our opinion, the Iranian judge must not overuse a single type criterion.

At first glance it may seem there is no mutual supportive relationship between copyright or rights of the authors of literary and artistic works, on one hand, and freedom of expression on the other. On deeper analysis, however, there are areas of such mutual support. This article attempts to examine these areas. The author is of the opinion that copyright and freedom of expression help and support each other in various ways. Copyright contributes to increase the production of literary and artistic works through granting exclusive rights to the authors and in so doing, creates a marketplace of ideas and information to be available to those who intend to exercise freedom of expression and thus allows them to have access to a variety of ideas and information in order to form their own points of views and express them. On the other hand, copyright empowers the community of authors and helps free them from being dependent on the state. Freedom of expression, in its turn, creates suitable environment for flourishing creative activities and removes the shadow of censorship and undue prosecution. In examining the issue, the article first deals with some key points in copyright and freedom of expression and then explores the ways of mutual support.

The emergence of the intellectual property rights in the social life has posed various questions. The most important question concerns the appropriate legal regime for protection of intellectual property rights. The prevailing view for protection of intellectual property rights has been the idea of grating the exclusive privileges to the owner of such properties. Nevertheless, some authors have proposed alternative mechanisms and have come up with the idea of alternative protection of intellectual property rights. Given that in the field of copyright there has been no remedy for unauthorized copying of works of arts, a solution have been sought to tackle this problem. However, some have radical views that the regime of exclusive rights for the owner of intellectual property rights has to be abandoned altogether and should be replaced by an alternative regime in a specific sense, i.e. the regime of reward. The current paper is seeking to examine these alternative views.

In Iranian Civil Code, delivery of goods has no effect on ownership and its effect is limited to risk transfer (Article 387 I. C. C.). In paragraph 1 of Article 362, on sales contracts, Iranian legislator indicates, with regards to ownership transfer, that in generic goods sales, due to lack of tangible general goods, ownership will not transfer to buyer. If seller has a undertaken to provide general goods to buyer, it can be assumed that ownership of goods will transfer upon delivery to buyer. A portion of the contract may contain an agreement to define the goods that are subject of the contract before delivery. In this case, the goods assigned to buyer belong to him and buyer may take possession of goods without seller's permission. As a consequence, the defining and assigning of goods in such contracts will indicate ownership transfer rather than delivery. If in the time of delivery, goods were not assigned and defined as a specific contract, delivery will be poof of ownership. In such sales and risk transfer, delivery will indicate (establish) ownership transfer.In Egyptian Law, in addition to risk transfer, delivery establishes ownership transfer even though no assignment has been occurred.In English law, delivery will not establish risk transfer nor ownership transfer unless the generic goods are assigned prior to or during delivery. In CISG, the issue of ownership transfer is referred to national law.

Reason is the sole agreed upon evidence whose authority is generally accepted by all human and divine schools of thought. Therefore, what is in need of study in contract law is not whether reason and the practice of the sage are sources of law specially as regards remedies for the breach of contract but rather the issue is whether what is suggested as the rule of reason in the area of remedies is actually understood by reason.The author argues that the two theories of anticipatory breach and efficient breach that are accepted by many legal systems in the field of contract remedies, mitigation or reduction of damages, are achievements of human reason and established by practice of the sage and best evidenced by the current usage in commercial transactions.

Strict liabilities are needless of some normal liability elements. In criminal law sometimes mens rea is not necessary. Crimes including such liability are called “Strict liability crimes”. The nature of these crimes is ambiguous and even their cases are mentioned in a systematic way. Moreover a criterion is required for them and their general principles must be organized. In this essay a list of some cases of these crimes both in foreign and domestic law is offered. The author argues that the criterion must be a combination of the crime’s “stigma”, “importance”, and “criminal” or “regulatory” nature. Because of the variety of strict liability crimes their general principles must be classified. Five groups of these crimes are distinguishable: crimes based on destruction; stronger cause; refutable fault presumption (res ipsa loquitur); irrefutable fault presumption and; conduct crimes.

Multinational Corporations (MNCs) establish subsidiary companies in various countries to expand their operation all over the world, and to invest in industrial areas of developing countries. MNCs have gained increasing importance and expansion after the Second World War. The most common structural model for a multinational enterprise is the pyramid one. In this model, a parent company is placed at the head of pyramid, and subsidiaries are owned and controlled by the parent company. In MNCs the Parent company and also each subsidiary has the nationality of its registrar country. MNCs have civil and criminal responsibility for damages to third parties. The interconnected management of subsidiaries and the parent company, and the fact that subsidiaries are controlled by parent company determine the responsibility of the parent company for subsidiary companie's operations.