فصلنامه مطالعات حقوق خصوصی
سال چهل و دوم شماره 4 (زمستان 1391)

Buy-Back Contracts in the upstream oil and gas projects of Iran, has experienced the third generation of this kind of contracts since its inception on 1373 (1994) when the oil and gas industry of Iran opend its petroleum market to the foreign investment. These contracts have since been subject to the various critieques raised by international oil companies, foreign investors, or petroleum experts from inside or outside of the oil and gas industry of Iran. Dealing with those important critieques that have been subject to the scientific and industry backgrounds with particular observations on contractual and legal issues, will be the core subject of the crticial overview in this Article. This Article, without entering into the sources of critieques, will convey the main points of the criticisms, thus, endeavour to respond them in accordance with the terms and conditions prevailing on the upstream oil and gas service contracts.

All Political Institutions Should Obey Public Law and be Legitimated by the mass. In this article there is a conceptual differentiation between»Protecting Political System Theory «(P. P. S. T) and»Public Law «, and others referring to the Islamic Principles try give an answer to these question: What is the relationship between Protecting Political System duty and necessity of practicing» Public Law «in Islamic Republic of Iran? In other word, Could P. P. S. T breach» Public Law «or not? The results Show that: P. P. S. T in Islamic Republic of Iran is an Islamic Instrument for achieving social aims of Law. So theoretically P. P. S. T and» Public Law «Could not be in contradiction with each other. In practice, if there was any contradiction, we Should solve it by referring to» Public Law«as the basic Principle for P. P. S. T.

Whenever we are analyzing the intellectual property rights we shall treat the enjoyment capacity as a principal issue of the private international laws. The enjoyment capacity of foreigner on intellectual property rights is determined based on the nature of these rights on the legal systems. The economic nature of these rights dictates that the private aspect of these rights to be recognized in private law and consequently to have a maximalist approach and the public aspect of these rights respectively treated on public law with minimalist approach. This approach has the decisive effects on enjoyment capacity of foreigners.

In the case of abuse of right of freedom of trade, intentional fault or negligence, resort to unlawful means and act contrary to professional ethics and in general, fulfillment of conditions of compensation of loss according to governing rules in legal systems, commercial rivals have tortious liability within the framework of traditional principles of tort law. Nowadays, day by day, cases of tort liability for breach of regulations of competition law is increasing. In principle, regarding the public nature of competition law, breach of regulations of this branch of law has penal or administrative sanction, but in many situations, private sanctions is much more efficient regarding aims of competition law. In this article, tort liability for unlawful competition has been studied in two mentioned fields and Iranian law has been compared with French, England, Germany, U.S.A and European Union law. The results of this article indicate that the nature of obligation of compensation in these two fields is different from each other. In addition, application of specific rules for proof and evaluation of loss, such as punitive damages and presumption of loss, has been proposed.

Lawgiver, for the purpose of penal supporting of national historical-cultural monuments, ratified repeated article 566 of Islamic penal code in 1388; which demonstrates three actions of “making fake cases”, “introducing, carrying or storing” and “buying of historical-cultural monuments” as crimes. This criminalizing was necessary and advantageous, but the procedure of criminalizing has some weakness which we will review them in present paper. For example, for the crime of buying fake monuments, just buying was indicated, but other means of acquiring them has not recognized.

As a crime against property, “Forcible Entry and Detainer” has been criminalized from the beginning of legislation in Iran, but its application has expanded day by day. At the moment, Article 690 of the Islamic Criminal Code is the main legal element of this crime. The lengthy and vagueness of this article has caused an enormous controversy among theorists as well as practitioners. Thereupon a comprehensive examination of the crime and article is necessary. After reassessing the elements of crime, the paper going through the history, bearing in mind the legislator’s object and attending the rhetoric of code, seeks for a deep explanation of the crime. some outcomes are; six categories of crimes mentioned in the article 690 has separated and compared, intention for crime is necessary, the ownership of applicant is irrelative, the crime can be committed by act and omission, a real property belonging to another person (broadly speaking of another) has to be occupied, all forms of the crime are continual.

Labeling theory is one of the most famous theories in criminology domain. The pivots of this theory consist of the role of power owners in definition of crime and determination of offender, effects of labeling and solutions for prevention of entering label. With study the pivots of labeling theory in Islamic sources, we observe that however there is no similarity between religious bases and bases of labeling theory, but entering label as a result of entering person to penal system is considered in Islamic trainings and solutions are anticipated in order to prevent entering label that among them we can point to ignorance of crime, forgiveness, repentance and intermediation.

One of the important subjects with regard to general average is the demand for compensation. The substantial question is whether the basis for the permissibility of demand for compensation on the part of the damage sufferer is the incur of peril during a voyage or not? According to the legal systems under the present study (England, France, Iran and York-Antwerp rules), this research reveals that the demand for compensation is mainly based on the presence of peril except for special cases where the presence of peril is not essential.

In order to examine the invasion of Iraq from the perspective of international law, this paper will review the legal reasons for the occupation of Iraq, and also, the question of research is that whether the occupation of Iraq from the perspective of right to use force is justifiable or not? By analyzing the prohibition of the use force principle in international relations and its exceptions, including self-defense and the Security Council’s authority, we can reach to the conclusion that the reasons and documents that the US and UK provided for the invasion of Iraq, namely preemptive self defense and the doctrine of “revival “, were against the international law, and also, according to the norms of international criminal law, this act was a clear example of “the crime of aggression”.

The civil sanction is one of the most important sanctions for protecting copyright. In French Law a special action named counterfeit action is predicted, which not only compensate the damages but also it has a preventive effect. This action doesnt require the proving of the fault and the lawsuit can be done by the author and the person who is awareded the exclusive licence. In this legal system, general rules of civil responsibility especially unfair competition claim and agissement parasistic completes the counterfeit action. In Iran law, the civil responsibility of the violations of the copyright has been accepted, but its basis and rules are not presented well. Although general civil responsibility rules can be used in this case, regislator shoud adjust and complete the protective disposition by considering the law basis, Islamic jurisprudence, and experiencis of French law.

Right of enforcement developed to the right of effective enforcement which both rooted in judicial protection. Effective enforcement needs to foresee clear and useful, expeditious and cheap methods that helps the collection of defendant’s financial information and facilitates voluntary enforcement of judgment and finally use of professional and independent persons in execution process. In Iranian legal system, there are some obstacles that affect effective enforcement of civil judgment such as politicized rules of enforcement, defects on sanctions in economic obligations, nonpayment of obligations, insolvency and exclusion of payment and finally the nature of some proceedings

By increasing government’s interferences in different aspects of society and as a result, more dependence of citizen to governmental and public institution, there is always the concern that citizen’s right before powerful governmental organs be violated. Therefore, different mechanisms have been created to defend the citizen’s rights one of which is Ombudsman. Ombudsman acts as mediator and communicative bridge between governments and citizens and its classic primitive task is non-judicial and neutrally caring to citizen’s compliance against governmental and public organs. Therefore these institutions do need independence from difference government and public organs and specially those under their own control. In this text, independence of Ombudsman institutions and different aspects of its independence and its relation with three power branches with comparative respective would be scrutinized.

The local institutions in Iran, like many countries in the world, have been established in order to realize decentralization system. The city councils are one of the most important institutions which conduct the affairs of the city with theirs executive organs. These councils make some important decisions in their legal jurisdictions which review on these decisions is very important. So the legislature should determine proper authorities to review city councils acts and decisions and object to them if necessary. In this article we will focus on some provisions in regard to the city council act (1997), in order to find out whether the mayor’s qualification of objection to the city council decisions.

One of the principles of the responsibilities is that responsibility is personal. The principle of VEZR denotes that responsibility is personal. But sometimes there is a vicarious liability. In French law until 1991 the vicarious liability was UN exception and the article of 1384 of civil code of french has been interpreted limitedly. From 1991the exception has been changed into the principle. In the law of Iran also there is many of the vicarious liability that the legislator can present the rule general of vicarious liability that in this article has been examined.