COMPARATIVE LAW REVIEW
Year:2019 | Volume:10 | Issue:1 |Papers Count:18

The holder of a bill of lading hardly ever has the chance and right to see the referred charterparties' terms and conditions. On the one hand, binding the holder of the bill of lading to the terms and conditions which he is not aware of seems unjust and therefore the incorporated clauses might be deemed invalid. On the other hand, dependency of the validity of the contract to the parties' awareness of their rights and obligation endangers commercial certainty. While in some legal systems such as United States of America and France, a general reference is capable of incorporating all of the charterparties' terms and conditions into bill of lading, according to English law an specific reference is required to incorporate ancillary clauses such as jurisdiction clause. Studying sources of Iran's law it could be concluded that the Iranian courts' probable solution should be very similar to the English law's approach.

This article examines the rules governing Foreign Direct Investment in Iran’ s Free Zones. These rules are pertaining to investor’ s entry procedures, exceptions in foreign investment, restrictions and requirements of foreign investment. The results, found through a comparative study of some leading countries to attract foreign investment and Foreign Investment Promotion and Protection Act (FIPPA), indicated that the rules governing foreign direct investment play a significant role to stimulate the investor’ s incentive and are considered one of the imperative and determinant legal factors to attract foreign investment in free zones. Solutions to make the Iran’ s free zone investment climate more attractive to foreign investors include substitution of approval and confirmation system by informing and notifying one, limitation of exceptional segments from foreign investment, redundancy prohibition of possession or ownership of property, elimination of share ownership limitation and reduction of administrative requirements for the foreign investor.

One of the important issues of contemporary law is the transition of the product responsibility law, since the law of product liability have, over time, evolved in the light of its goals. Therefore, when it was intended to compensate the losses caused by defective goods and consumer protection, contract law was recognized as appropriate. Over time, the inefficiency of contract law in consumer protection was clarified, and liability based on defect or strict liability with some defensive rights for the manufacturer was proposed. But these rules could only cover consumer compensation. Also, developments in the field of power in public law and the impact of economic power on the authority of national sovereignty led to the aim of protecting national interests in the subject of production. Thus, the legal rules of product liability have been developed in the structure of market law to cover all legal goals.

The concept of Humanity is one of the most controversial concepts in the contemporary international law legal literature. Every legal school of thoughts and legal approaches present a different version of the concept and its statues in international law, according to their pre-approved premises. Natural law school along with positivists and normativist are imposing their own stablished readings on this concept, but on the other hand, critical theorist of international law (CIL) have exposed their theoretical deficiencies and flaws. The core of this discourse has been focused on the potentials of the concept of humanity on diverging the trends of evolution in international law, although in a positivistic view, there is not that much controversy. This study will evaluate the concept of humanity based on the diverse criteria of aforementioned schools of thoughts, in order to depict and analyze the diversity of different version of the concept of Humanity in legal theories.

Corruption is one of the main challenges of the post-Taliban Afghanistan, which is developed parallel to the growth of the state structures. and today by any measure, Afghanistan is one of the most corrupt countries in the world. Corruption has the security, political, economic, and social negative consequences; and recently, some activities have been done to struggle with it, but they were ineffective due to their shortcomings. Subject of the study is the Criminalization Pathology of Corruption in Afghanistan. Findings of the study indicate that rules before the penal code have had important deficiencies in Criminalization. The lack of criminalization in crimes, such as misuse of the influence and increase in the assets of state employees, illegally; and also in incomplete criminalization of crimes such as bribery, embezzlement and it`s sentence, which was exclusive to " Public service obligation ", had caused anti-corruption campaign to be inefficient and unsuccessful. the penal code, which became enforceable in early 2018, eliminated these two basic weaknesses, but it has its own deficiencies. the penal code in Criminalization of corruption in some cases has a deficiency and vacuum. Also, the determination of articles related to these crimes in the panel Code lacks coherence, and in some case is ambiguous. The article suggests that as the defects of previous laws in the panel Code are removed, while final approving in legislature, its defects should also be eliminated.

In France, unlike the US judges, they are graduates of the Supreme Judicial School, which has an organizational relationship with the Department of Justice and the French judicial system. The Supreme Judicial School is responsible for the training and training of future French judges who have been absorbed after passing university studies and obtaining a university degree. The 31-month training course runs apprenticeship and theoretical and practical training that all school teachers and educators are members of the judiciary. The administrative proceedings in the French legal system are so important that the process of recruiting and training the judges of the administrative courts and the state council is separated from the general courts. As a result, the judges of the administrative courts are mainly drawn from graduate and postgraduate graduates who have been trained at the National School of Public Administration and are undergoing practical training at the French State Council. The government council also divides itself into a large institution, the Court of Cassation, and the accepted test, which is conducted through the National School of Public Administration, attracts top scores to the state council.

Undertakings seeking to utilize potentials of mergers in order to improve their dynamic efficiency may confront with competition challenges. Accordingly Competition Authorities in balancing the necessity of removing competition concerns and providing a chance for gaining merger benefits, try to employ different remedies at waiting period. Compulsory licensing has proved itself as a relative efficient remedy for competition modifying of proposed mergers in IP domain. This research in the light of EU related rules as a leading legal system in this field, is going to determine the situation of compulsory licensing among competition remedies, its contents and framework in particular field of mergers, enumerate its benefits and deficiencies and provide an optimized model for compulsory licensing which has effective function in making balance between competition and innovation considerations of proposed mergers. The comparison of achieved results of comparative study with approaches of Iranian law, makes clear that different aspects of compulsory licensing and giving competition validity to mergers and particular standards have been neglected and existing rules of competition and IP law suffer from wrong procedures and flaws which necessitate review of related rules.

According to the principle of the contribution of the injured to the injury in international responsibility law, the contribution to the injury or refusal of mitigation of injury of injured state or international organization will consider in reparation. Although The rule is quite similar in the law of state responsibility and international organizations, there are several distinctions regarding the implementation of this rule in these two areas. These distinctions are mainly due to the fact that organizations are composed of states with international legal personality. Also, their employees, who are parallelly subjects of a state, may, in some cases, be subject to the diplomatic protection of their state of nationality. This article, while explaining of legal aspects of the principle of the contribution to the injury and conditions of application of that in the area of international responsibility law, tries to examine its implementation in the law of state responsibility and law of international organizations.

Good administration, as a factor of rule of law in administrational institutions, is looking for protecting the rights of individuals against the government. This right was stipulated for the first time in the EU charter of fundamental rights and was stabilized in the European Court of Justice. Recently this right was stipulated in Iranian judicial system in the Charter on Citizens’ Rights as “ appropriate administration. ” Definitely applying the normative experiences and developments of European Union may be effective in much more clearance and entailment of this right in administrational institutions. Meantime understanding the importance of this right identification in the Charter of Citizens’ Right, the question would be that how much this right and it’ s compilations have affinity with the international standards included in the Charter of Fundamental Rights and what are the privileges and defects of this document in relation to the Charter of Fundamental Rights in the framework of the right to good administration? The inquiry shows that, generally the Charter on Citizens’ Rights has a substantial affinity with the Charter of Fundamental Rights in introducing the compilations of the right to good administration, but in most cases due to objectiveness and transparency of the definitions and the domain, the right is far away from the criterion projected for and has got a better approach in accordance to the Charter of Fundamental Rights, just in introducing the methods of compensating.

The result of international revolutions in recent centuries in the field of different legal systems is the determination of a definite and legal age for “ the minimum criminal responsibility age” and also the “ maturation age” . The studies conducted in the present article indicate that there is no decisive and clear-cut reasoning behind why the age of 18 years old is considered as the age of adulthood (the age of full criminal responsibility). The consensus between legal experts emphasizes this point that it has to be tried to increase the full criminal responsibility age in various countries to the highest extent possible; since this situation would be much more consistent with the world legal realities, the decision-making system of an individual and the responsibility for controlling personality anger. Of course, a process is forming recently in this field that signifies the public opinions endeavor to maximally increase the age of commencing criminal responsibility. This process is based on the needs and the various inferences from growth psychology and cognitive sciences, the religious norms and traditions, and the universal regulations requirements.

A comparative study of various legal systems suggests that in some countries the register authoritis are dependent on the "judicial system", and in others, it is dependent on executive and administrative systems. This raises this question that what is the reason for this difference and how this difference will affect the legal system of the countries. . In recent years, especially in the Iranian legal system, there have been differences of opinion and suggestions regarding the change in the status of the land register organization in the structure of the sovereignty. This research focuses on comparative studies and analysis of the reports of the European Real Estate Registry, and has focused on the functions and goals of the legislator for a register organization in Iranian lawAnd has come to the conclusion that in different legal systems, the difference in expected functions of the registry authority has a direct impact on determining its place and its dependence on the judicial or administrative system. In countries where the legal function of creating "security and legal stability" by the register authority is priority, it is part of the judicial system and in countries where the political or tax function or the commercialization of registration is a priority, it is part of the administrative and executive structure. In the legal system of Iran, the legal functions of the registry autority are prioritized, so this organization should be part of the judicial structure of Iran, and its seperation from the judiciary and its joining to the body of the state is contrary to the legal interests and the legal basis for this institiution.

One of the most challenging issues that nowadays in Iran leads to statelessness is the inability of passing nationality from mother to child. This is while sons born of Iranian father under any circumstances will acquire Iranian nationality. As it turns out, this issue has led to a kind of inequality and deprivation in obtaining the Iranian nationality of children born to Iranian mothers whose legal effect could be found in the exclusion of nationality benefits and obstacles in paragraph 5 of Article 976 of the Iranian Civil Code and the especial statute passed in 2006. In this descriptive-analytic study, while reviewing the legal provisions and jurisprudential analyzes, a summary of the research found that the source of inequality between Iranian father and mother in the passing of nationality to children can be seen in the failure to recognize the marriage of Iranian mother with a foreign national by government and the gender inequality in passing of nationality of mother-to-child, which eliminates both These matters are not merely associated with any religious affiliation, but are more consistent with the spirit of the Islamic Sharia.

The nature of insurance activities with regard to engaging with the interests of stakeholders requires that supervision and regulation be tailored to the performance of the insurance industry in the direction of insurance regulation. . For this purpose, the existence of an effective monitoring and regulating system is a prerequisite for this process. Since the regulatory and regulating system in Iran's insurance industry is considered a new one Certainly, studying the legal system of other countries can be of great help in insurance. In the United States, state insurance is provided, and the federal government has only a supervisory role. In the Islamic Republic of Iran, Central Insurance Agency of Iran through the General Assembly and the Supreme Insurance Board is responsible for regulating insurance and supervision is also carried out through the Supreme Insurance Board. In this paper, the differences between supervisory and regulating instruments in the United States of America with the Islamic Republic of Iran are examined and approaches are being proposed for the Iranian insurance industry.

Presentation rule is one of the general rules governing claim and delivery of the goods carried by sea. It means that the carrier shall deliver the goods solely against presentation of a transport document by the cargo claimant. The basis of presentation rule is to prevent deprivation of actual cargo-owner’ s rights and to ensure the performance of contract as well as carrier’ s immunity from unpredicted liabilities. The central analytical idea of this study is to describe in detail the necessity or non-necessity of application of presentation rule and its exemptions to carriage of goods by sea. Due to their different approaches to the subject matter depending on the type of transport document in question, the rules of Common law as well as English statutory provisions on carriage of goods by sea are examined. Presentation rule is not explicitly mentioned in Iran Maritime Code which is limited in scope comparing to the two other body of rules. Also, contrary to Common law and English law, the Maritime Code of Iran is relatively ambiguous towards the right to claim delivery of goods.

The purpose of codification and ratification of the Universal Declaration of Human Rights (UDHR) has not been exclusively this that the rights and freedoms mentioned in the declaration be identified, but besides this, one of the main objectives of codification of the (UDHR) has been that the rights and freedoms inserted in it to be enforced by law enforcement. Due to the fact that the provisions of the Universal Declaration of Human Rights not only considerably has been reflected in the constitution of Afghanistan and the others Laws of this country, but has been effective in achieving the goals of human rights in Afghanistan. In the preamble of the Constitution of Afghanistan to respect and in the article 7 of it to observe of the (UDHR) has been stipulated. Also the government of Afghanistan in the constitution of the country in various fields of achieving human rights goals has been known to commit human rights goals. The establishment of Afghanistan Independent Human Rights Commission (AIHRC), the realization of the right to education, the establishment of political parties, the realization of people's participation in public affairs, the realization of freedoms of speech, press and formation of civil society organizations, are some of the realization of human rights goals in Afghanistan that affected by the provisions of the (UDHR). Since the sacred religion of Islam has been taken for as the source of legislation in the constitution of Afghanistan, therefore the rights and freedoms in the UDHR which are contrary with the beliefs and sentences of the sacred religion of Islam are not practical in this country. The research method used in this article is descriptive-analytic and the purpose of writing is to examine the effect of the provisions of the UDHR in achieving human rights goals in Afghanistan.

The Convention on Contracts For The International Sale of Goods, to compensate the damages resulting from breach of the contract, has provided for two different methods. The substitute contract and claiming the difference between the contract price and the price in the substitute contract is provided for. Claiming the difference between the contract price and the market price at the time of revocation or the time of the delivery of the goods before the revocation, is provided for. The choice between the two methods requires meeting certain requirements such as the revocation of the original contract, existence of damages and conclusion of a second contract in a reasonable method and at a reasonable time. The methods are recognized in the European Principles of Contract Law. But, a claim based on the difference between the contract price and the current price at the time of taking possession of the goods before the revocation, mentioned in the final part of paragraph 1 of article 56 of the Convention, cannot be found in the Principles. The methods are not expressly adopted in English and French legal systems but scholars believe the spirit of the governing regulations are not unfamiliar with the notions. Iran has not adopted the convention yet. Domestic regulations also do not expressly allow the methods. The Iranian case law, depending on the nature of the parties relationship and the claims arising from it, allows different ways for damage compensation, based on civil responsibility. Claiming damages based on contract terms damages arising from nullity of the transaction and a third party`s right in the goods based on the current value of the price, damages resulting from delayed payment, based on the inflation rate index and damages based on the expert`s report are among the methods used in the Iranian law.

Today, stock companies and their related regulations constitute an important part of the countries’ commercial laws. This domain of corporate law is a dynamic and changing law among them one can refer to the responsibilities of controller shareholders in stock companies. In this regard, there are several fundamental challenges: First, despite of the directors’ presence in stock companies, how can one consider the responsibility for shareholders in managing the company? and also, what is the basis of this responsibility and how far does its boundaries extend? In the current article, we want to analyze this issue in English law and its comparison with Iran law and therefore, show that the responsibility of controller shareholders is based on corporate governance system and the theory of the prohibition on abuse of right and accordingly, they are required to act in good faith in the company management, to pay attention to the resources of the entire company and to provide the necessary information to the minority shareholders. Otherwise, if there is control power over company’ s decisions and the application of this power uncoordinatedly with the interests of the company, the reasonability will be similar to that managers.