فصلنامه پژوهش حقوق عمومی
سال دوازدهم شماره 31 (زمستان 1389)

Although the concept of legal personality and its consequences can be found in the lawyer's discussions, different aspects of this issue particularly from practical and judicial point of view, with respect to its importance, has not been properly studied. The recognition of legal personality for a trading company inevitably brings about some effects, which not only there is no consensus among lawyers as to the coming into effect of those effects, but there is also a deep disparity as to the time of creation of this personality.The above dispute is mainly a result of how the provisions concerned legislated and their different legal languages. Having consideration on the French and English legal systems as well as Commercial Code Bill 1384 proves the necessity of removing the current ambiguities and inconsistency in the Iranian statutory law.

After a century of indefatigable and inexhaustible efforts of global propitious benevolences dealing with severe international crimes to protect the inherent human rights and holding several unsuccessful and case trial, the social and political field of final decade of twentieth century, particularly the suffocation periods result from cold war and international polarization, led the world to a new phase, as the collective and universal tendencies for creating the international criminal court with permanent property became the main purpose of the International Law Commission.Around 10 years after preliminary discussion and negotiation, Rome Statute was finally adopted on 17 July 1998, but upon the lack of agreement on issues such as violation crime arbitrary crime and compromise on some judgment and formal principles and regulations at the end of statute noted the necessity of the revision of its rules to add new crimes or change and reform false procedures after seven years of getting indispensable considering the statute became indispensable in July 1st 2002, it must be revised at the end of 2009 or early 2010. Consequently the aim of this paper is presenting short analysis of suggestible issues in upcoming conference and its probable consequent with regard to its legal defects.

International developments and in particular new international economic order led to the creation of “the Common Heritage of Mankind” and consists of five elements: non-appropriation, use it for peaceful purposes and benefit of mankind, sharing its management and benefits. Developing and developed states took opposing positions and had different interpretation about its content. This concept is relatively new in international law and during the last decades has attracted considerable attention and generated polemical debate in international forums. This has been especially true of the CHM’s application to the legal status of resources in “common spaces areas”, and applied too in other issues. Nevertheless, due to substantial confusion over the nature of the concept and its appropriate place in international law; and different interpretations, it lacks legal force. It is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. Its application and enforcement require a critical reexamination of many well-established principles and doctrines of classical international law.This article aims at exploring the legal theory and the implications of the concept of CHM. The author by a normative methodology seeks to provide tentative answers to the questions whether and how concept can be incorporated into the corpus of international law as a legal norm.The author concludes that can be postulated about the present status of the CHM concept is that it may indicate an emergence general principle of international law. It is supportable and applicable with human rights and in particular the third generation of human rights (collective or solidarity rights) and then is an universal duty and imperative rule.

The use of countermeasures by non-injured states as a means of the defense of general interests- referred to as "countermeasures of general interest" is not specifically embodied in the ILC’s draft articles on the international responsibility of state.Notwithstanding in the light of international practice, it seems justified to conclude that present-day international law recognizes a right of all states, irrespective of individual injury, to take countermeasures in response to large-scale or systematic breaches of obligations Erga omnes

Governments face important challenges in providing services and assistance to international victims. Although growth in tourism and international communications could be an indication of economic, social and cultural development of countries, but it would lead to extreme consequences particularly increase in crime and victimization. Countries which are targets of migration, tourism and even terrorist activities face victims who are not their nationals. It entails problems and negative aftermaths for both governments and victims. Indeed, such victims not only suffered direct and indirect victimization impacts but also they have to overcome with other problems including not accountability of host national authorities, deprivation of their family members’ protection and so on.The article focuses on the importance of assistance to international victims including certain child victims, tourist victims and victims of terrorism, and explores problems which they face to utilize the services.

The existence of dispute is a common issue in construction contracts and the avoidance of dispute generation and resolving it is one of the basic problems in construction industry in Iran and throughout the word. The traditional methods for dispute resolution because of their high expenses and slowness can not be considered as good resolutions to this problem and, hence, the methods for disputes resolution in construction contracts have change over the past two decades. Principals in construction industry have created new methods of dispute resolution in a sense that nowadays referring dispute in construction contracts to the courts is rare and unusual. In this paper we have looked at the changes in the methods of dispute resolution in construction contracts and also have discussed the practical policies of America, England, and Iran in resolving the aforementioned disputes. At the end, the need for rectification of the present methods of dispute resolution in construction contracts in Iran has been emphasized.

"Independent guarantee", which is known in the Iranian legal and business culture as a "bank guarantee", is distinguished with two principles of "independence" and "non-opposability of defenses owing to underlying contract" -which the latter, itself, is the result of the first principle- from the accessory guarantee. Principle of Independence affects all effects of the independent guarantee and differentiates its legal regime in comparison with accessory guarantee. The most important effect of this principle is immediate payment of the guarantee by the guarantor without any objection relating to the underlying contract. But the principle of independence should not permit any payment. Where, without stating any additional reason, it is obvious that beneficiary has abused of his right, the bank should refuse to pay. Accordingly, summary injunctions and stopping payment of the guarantee by the courts should be limited, with the exception of an obviously abusive request, to cases in which the payment of the guarantee is demanded out of the conditions listed in the contract of guarantee.However, the Iranian case-law does not precise boundaries between the independent guarantee and accessory guarantee, and some courts have ordered immediate payment of the independent guarantee, but others consider the role of relying contract in their decisions. This problem necessitates the prediction of a codified legal framework to guarantee the respect of the intention of the parties by the courts. The Commercial code reform bill has made the opportunity to compensate this defect in Iranian Law. But as far as it concerns the reform of Commercial code and this bill, the legal regime of independent guarantee has not properly been considered. Major changes in these regulations are required until independent guarantee can mark its real effects.

According to the Article 231 of non-contentious code, whose basis is Islamic religion, the debt of deceased has to be paid immediately. The debtor has the right to get the durable debt from the inheritor. The main question of this article is whether this rule is adaptable in durable contractual obligations or not. In other words, If someone who enters into a contract then passes away before fulfilling his/her obligation, would his/her obligations turn to be present or it should be paid at the previously specified time? The rights, obligations and undertaking of persons are transferred to their inheritors. The inheritors are entitled to the deceased’s rights and responsible to fulfill the obligations of the testator except the personal obligations and those that are not transferable. The obligations of the testator during his/her lifetime arise from either statute or contract.Emphasizing on the religious and legislative principles in this article, we have studied and discussed this subject, and have concluded that in contractual obligations, particularly the bilateral contracts, in which the debt time of performance has main role in the economic balance of subject matter, the inheritors are obliged to perform the debt on the specified and predicted time of contract and the passing away of the testator has no effects on the time changes of such obligations

According to the Article 231 of non-contentious code, whose basis is Islamic religion, the debt of deceased has to be paid immediately. The debtor has the right to get the durable debt from the inheritor. The main question of this article is whether this rule is adaptable in durable contractual obligations or not. In other words, If someone who enters into a contract then passes away before fulfilling his/her obligation, would his/her obligations turn to be present or it should be paid at the previously specified time? The rights, obligations and undertaking of persons are transferred to their inheritors. The inheritors are entitled to the deceased’s rights and responsible to fulfill the obligations of the testator except the personal obligations and those that are not transferable. The obligations of the testator during his/her lifetime arise from either statute or contract. Emphasizing on the religious and legislative principles in this article, we have studied and discussed this subject, and have concluded that in contractual obligations, particularly the bilateral contracts, in which the debt time of performance has main role in the economic balance of subject matter, the inheritors are obliged to perform the debt on the specified and predicted time of contract and the passing away of the testator has no effects on the time changes of such obligations.

Departing from controversial notion of "International Crime of States", in the “Final Draft Articles on Responsibility of States for Internationally Wrongful Acts”(hereafter Draft Articles), International Law Commission (hereafter ILC), drafted a regime for "serious breaches of preemptory norms of general international law" which is different from breaches of other international obligations. One can examine this difference in two areas: First, the obligation(s) of responsible state and second, the obligation(s) of other states. Exploring those obligations embedded in “Draft Articles” reveals two facts: First, by rejecting the existence of any special obligation for responsible state, ILC considered serious breaches of preemptory norms of general international law as breaches of other international obligations involving a duty to full compensation. Second, by adopting lenient and soft obligations for other states, i.e., duty to cooperate in order to bring to end serious breaches of preemptory norms of general international law, and duty not to recognize as lawful situations created by serious breaches of preemptory norms of general international law, ILC emphasized the dual regime of state responsibility for "serious breaches of preemptory norms of general international law" rather than confirming existence of aggravated regime against such breaches.

Beside legal institution like legal and judicial exemption, substitution of punishment is a suitable policy to individualism (in sentences), confine short term imprisonment and realization judicial justice and just punish. Replacement of punishment divides into two category: legal (discretionary) and judicial. The former is confined narrowly by law but the latter is subject to circumstances of mitigation of punishment and judge can replace all of discretionary and deterring punishment provided in law to another kind of punishment with this circumstances. Mitigation of punishment and changing sort and nature is some effects of replacement. In our laws, Nevertheless replacement can use to aggravate like to mitigate.Beside discretionary and deterring punishment, replacement can almost use in HODOD (fixed punishment has been predicted in Islam) and Retaliation. Replacement of HODOD is subject to conditions provided in law. In retaliation, there is another kind of replacement can be called individual replacement. It occurs when victim or his/her parent's demand. Judicial replacement is common in discretionary and deterring punishment.

Audit court as a supervisor on financial performance of government has an extraordinary legal importance. If parliament approves the budget with a great concern, the audit court has accurate and responsibly supervision on good performance of that law and prevention of squander of state revenues. The legal position of Iran audit court in comparison with France shows that this organization follow the history priority, still enjoys dignity and worthy tools in France. For instance, in spite of the legal nature of this court in two countries, in Iran only a judge with no legal requirement for specialty in Financial Law is present just in the court of appeals. But in France, all members including the heads of branches and counselors are in judgment place. This fact provides the judicial nature of the court more realistic about the final report to the parliament, in comparison with France, the settlement budget report needs the change from "target " to device and beginning the serious and transparent pursuing of Islamic consultative Assembly after its approval in the open session. The comparative study over structure and competences of France Audit Court is a step for legislative change and to improve the operation of Iranian Audit court in convergence with a model which is the origination of successful models in judicial supervision of government.

The largest amendment of France fifth republic constitution was adopted in July23rd 2008. Mentioned reforms can be summarized in three generalcategories: Parliamentary reforms aimed at strengthening parliament authority;reforms related to executive branch aimed at greater parliamentary oversight over itand limiting the authorities of president and government; and finally amendmentscontain guarantees of fundamental human and citizens rights against thegovernment. Among the areas of change, status and place of president and hisqualifications were the main areas discussed in recent reforms. This reforms that, onthe one hand, were within the executive branch (division and distribution of hisqualification and authorities and his relationship with prime minister), and on theother hand, were about his relationships with other forces and public institutions andcitizens raised many sensitivity. However, whether the recent reforms undergone abasic transformation in general position of president and his authority in Francepolitical system? Weather the said orientation toward reducing his powers was real?Regarding his position within the executive (especially between president andprime minister) and in relation to other powers(especially in relation to parliament),whether these limitations solve the problem caused by forecasting broad andincompatible powers of president to prime minister and parliament in aparliamentary system. In response to these questions, the achievements of reforms inthis area can be easily evaluated positively or negatively; while on severaloccasions, there were some necessary amendments in common laws and regulationsto complete the constitutional amendments or to coordinate with them, some ofwhich have not been reviewed or approved. But it can be said in an overall sum thatif whatever related to the position and power of the president in a political system,the amendments contains significant cases partially limiting and/or framing most ofthem; but over the position of president not within the executive branch and hisrelationship with the prime minister that some believe its modification needs thesixth republic, and not in his relationship with parliament, basic and noticeablereforms to solve the problem.(due to the presence of a very strong president but withno political responsibility alongside the prime minister and cabinet with politicalresponsibility in front of the parliament) has been taken.