مجله نامه مفید
پیاپی 100 (زمستان 1392)

The principle of equality of creditors is in line with the administration of justice in our legal system. This principle makes a fair division of debtor’s assets between creditors proportionate to their debts and allows preferring some of them over others according to the nature of certain debts. The principle which is derived inductively from legal texts leads, during collective liquidation, to the choice of a neutral liquidation authority as well as establishing equality in liquidation method.

Inventive step means that invention, with regard to the prior art, is not obvious for the person having ordinary skill in the art. In most laws and rules this condition is expressly mentioned as distinct from other substantive conditions of inventions such as novelty. This indicates the importance of the condition in the patent system of various jurisdictions. This condition is not, however, recognized properly in Iran’s law on Patent, Industrial Design and Trade Mark of 2007, which ambiguously refers to the condition in a manner implying its being identical with novelty requirement. In this article, we make an attempt to identify Iranian law’s position on the inventive step requirement while clarifying its meaning and comparing to other similar concepts and offering suggestions in this regard.

In the law of civil liability, whether contractual or tortious, causal relationship is one of the elements required to be proved and according to general rules the burden of proof lies on the plaintiff. Some of the jurists are, however, of the opinion that the general rule, like many others, has exceptions. According to them, in some cases while the existence of the causation is required, the claimant need not prove it since the law assumes its existence in these cases. It is up to the defendant to rebut the presumption. Otherwise, the defendant is liable for damages. This opinion is opposed by other jurists who believe that the causal relationship, unlike fault, may never be presumed. The present article examines different opinions on the presumption of causal relationship in contractual liability in Iranian law and the law of some other countries.

Article 289 of Iranian Civil Code provides that, “[D]ischarge (from an obligation) means that the creditor deliberately renounces his right.” In this definition, Iranian legislator does not explicitly refer to the nature of discharge. This raises the question whether the legislator, being aware of the confusion in jurisprudential texts, has cautiously left the issue to be determined in future. The purpose of the present article is to examine the concept and nature of discharge in Iranian law with an emphasis on jurisprudential foundations and eventually prove the unilateral-waiver nature of discharge. The approach of Egypt’s Civil Code and its commentators are meanwhile brought to attention.

The undisclosed agency is a kind of agency in which the identity of principal is concealed in the contract concluded between the agent and the third party and the latter conceives the agent is the real and genuine party in the contract. This kind of agency, as an exception to the general rules of contracts, was, for the first time, introduced in the English law of 18th century. Because, as we know, under the law of contracts, only the parties to a contract are liable for performing the contractual undertakings and the principal is a stranger and has no liability for the privity of contract. But the undisclosed agent bears the liability of principal not on contractual bases but on a tortious one. In the law of Iran, the matter of undisclosed agency has solely but impliedly been referred to in Art.196 of the Civil Code while this legal institution has long precedent in the Islamic jurisprudence and the views expressed by the Islamic jurists. Since, under the general law of agency, all acts and words of the agent are attributed to and for the principal and this may cause many losses to the third person ignorant of the presence of the principal, the present study is intended to elucidate the tortious liability of the agent and principal in such a manner that, in this direction, various legal and Islamic jurisprudential bases for tortious liability of them, such as the rule of deceit, estoppels and causation will be examined. Thus, the study will make it clear that, under the theory of undisclosed agency, not only the principal but also the agent is liable for compensating the probable losses incurred by the third party. It will also be proved that it the acts of the agent and principal if accompanied with mala fides may be counted as examples of the crime of conspiracy or fraud and punishable as such.

Penal populism researches offer valuable data for the recognition of the characteristics of populist policies in different penal systems. The findings of these comparative researches indicate that penal populism involves policies which are usually tough, expressive, emotional and devoid of scientific theory. Penal populist reactions appear in the light of popular moves and emotional environment, especially after the important criminal events. The inherent claim of these polices is the reduction of criminal conduct by resorting to penal measures in the shortest time. This approach does not necessarily need to have a deep understanding of crimes, and tries to cover its theoretical weakness by resorting to instrumental interpretation of public demands and expectations. The reaction of penal populism to the lack of effectiveness of punitive policies has been the denial of accepting the responsibility of failure and tries to find the roots of the lack of security in the resistance against these policies and the existence of the groups who are called others and inconsistent with the majority of the society. Though, scientific analysis of the effectiveness of the penal populist reactions shows that these policies could not achieve the ideal promises of complete disappearance of crime. This article attempts to present criteria for the recognition of penal populist policies by case study of some criminal laws and discourse analysis of criminal policy authorities in the different political, social, and legal contexts. Getting familiar with the experiences of developed penal systems in the field of process of interring populist ideas into the penal policy will create a good opportunity to achieve a deep understanding about the context of the appearance of penal populism and the necessity of taking appropriate measures to prevent the influence of the populist ideas on penal policy.

Environmental challenges of ships’ ballast water discharge have attracted the international community’s attention. Discharge of ballast water is one of the most important sources of the degradation of marine environment threatening biodiversity and human health. Two sets of challenges are posed by ballast water: oil pollution that is caused by the discharge of oil-mixed ballast water that is a type of vessel-source pollution mainly dealt with by MARPOL Convention and the introduction of alien species carried by ballast water is addressed by the IMO 2004 Convention for the Control and Management of Ships’ Ballast Water and Sediments. There are also some non-binding guidelines that IMO and its marine environmental protection committee have adopted to encourage the countries to oblige the ships under their jurisdiction to conform to these standards. This article tries, first, to highlight the ballast water environmental challenges and, secondly, to assess the above mentioned efforts.

The Tort Exception is provided for in Article 11 of the European Convention and Article 12 of the United Nations Convention on the Jurisdictional Immunities of States and their Property as an important exception to the state immunity, but there is much ambiguity on the scope and content of this exception. The present article aims to clarify some aspects of this issue in the light of the ICJ’s 2012 judgment in the case of Jurisdictional Immunities of The State. There are some questions, including, whether this exception is transformed into customary international law, whether there is in customary international law a “tort exception” to State immunity applicable to acta jure imperii, and whether the acts committed on the territory of the forum State by the armed forces of a foreign State in the course of conducting an armed conflict are contained in the tort exception. The International Court of Justice, by examining state practice, judicial decisions and doctrine, has found that tort exception encompasses acta jure imperii but does not include the acts of armed forces in the course of conducting an armed conflict.