فصلنامه مطالعات حقوق خصوصی
سال چهل و سوم شماره 1 (بهار 1392)

“Abstraction principle” means separation between two obligations in commercial instruments: underlying obligation and documentary obligation that created by drawing these documents. The main effect of this principle is that objections related to first obligation، cannot be claim in second; where there is a third party. To obtain a real and comprehensive perspective of this principle in Iranian law، we must discuss both principle and his exceptions in Acts and jurisprudence. Iranian commercial act indirectly confirmed basis of this principle. Iranian jurisprudence also undoubtedly accepted this principle and applies it between responsible and third party beneficiary of commercial instrument.

The main purpose of trademark legal system is protection of trademark against any unauthorized use، so today many of existing legal systems have provide different enforcements for breach of trademark. Well known trademarks have always been considered as a valuable property by legislatures and protected as a particular category of trademarks. On contrary to infringement، Dilution doctrine، which is also named as breach of second type، is to protect well known trademarks against any unauthorized use and its exact purpose is to establish particular protection from owners of trademarks so as to provide required status for protecting both consumers and owners of trademarks. Although this doctrine has not ever had a show in our precedent، our legislature painstakingly provided it at paragraph V of article 32 of inventions، industrial designs and trademarks act.

Civil procedure code in articles 424 and 437 has laid down deferent effects for rehearing and objection to judgment by a third party about execution of judgment. On base of these articles effect of rehearing is stronger، so with rendering of writ of acceptance of rehearing، execution of judgment stops، except about condemnation connected with property، when obtaining of security with compensation is possible. In this case، execution of judgment continues with obtaining of security from winning party. But، objection to judgment، by a third party dose not suspend execution of judgment، unless compensation of execution of judgment is impossible. In this case، with obtaining of security from losing party، execution of judgment suspends for a certain period of time. Aggravation of rehearing''s effect is for rendering of writ of acceptance of rehearing that strengthens probability of overturning of judgment.

The social situation of medieval Britain prior to its conquest by William، Duke of Normandy، in 1066 AD was so retarded. But، soon after that it was provided with such a great legal institutions and culture that، even today، give rise to a great surprise as to their magnificence، causing admirations by scholars. But، it raises queries regarding the original source of those legal institutions، for which no final response has been produced yet. But، certain western lawyers have traced great similarities between some legal institutions in Islamic law and Common law، indicating that the former may be the root of the latter. This Study has، with the aim of finding decisive answers to the queries، taken up the task of analyzing the status of certain Islamic legal institutions and comparison thereof with their counterparts in Common law. The findings reveal a wonderful historical achievements in this respect which، in the author''s idea، will result in the Islamization and localization of certain human sciences in a superior level.

Equivalance between men and women in rights of succession is the text of qoran. But in some cases we can see difrences that exist between them. Subject of this article is one of these deprivation. As most Imamiah’s jurists state; wifes are deprived from possessing immovable properties and some other objects in the case of husband’s death. In the other hand،some jurists that are in minority mentioned that wifes are same as other and that deprivation is not acceptable. Now we are going to consider the proofs of the latter as an acceptable view.

Public order has a long history and a great role in private law and international commercial arbitration; as much as can be said: public order is one of the most important limitations of party autonomy (contractual freedom) in private law and international commercial arbitration. However، legal experts disagree about the meaning of this term. Some of lawyers and jurists have made great efforts to define this term. But some of them have believed that it is indefinable. In this paper، after reviewing the history of public order، the concept of public order in private international law، public order''s types and its positionor place in international commercial arbitration has been scrutinized.

The inventive step requirement which purportly secure the growth of innovation and resulting industrial and economic development، despite of containing some benefits، always faced with the challenges that in some cases، such challenges are in opposition with the bases of patents system and indicates that، patents system do not beneficial always. Analysis of said challenges studied upon the economical bases and assessments toolsexaminers and PHOSITA، mainly. Also، Iran’s patents system is criticizable، legislatively and executively and needs to amendment. in the present article first we are going to study economical pathology and pertain to assessment of inventive step requirement، then suggest the suitable criteria that is similar to copyright system، and illustrate necessary proposals.

Since Journalistic activities are done as team works with many people involved as participants، when a journalistic activity does somebody harm or results in disorder or public damage، locating the agent of the harm، the person in charge، the responsibility type in terms of the joint-liability in case that there are more than one person in charge، or other responsibility types becomes difficult. In this regard، there is a variety of theories in legal systems of the world to determine the person in charge. The Iranian press law، however، is ambiguous in this case. This paper studies the topic، brings different related theories under analysis and evaluation، and proves that the Iranian press law has accepted the theory of collective responsibility.

According to the Article 38 of the Statute of the International Court of Justice، the General Principles of Law constitute one of the formal sources of International legal order. Despite this article، it is difficult to draw a clear view from this notion during the history of International law. Because of this ambiguities، it is legitimate to ask what do we mean by «general principles of law» and what is the real role of them in construction of our modern law And what is the relation between the general principles and the sovereignty? This article tries to find an answer to these fundamental questions.

The judicial practice of the international courts and tribunals – especially International Court of Justice – as the most important official entities for surveying and identifying legal rules، has always been a valuable source in the recognition of customary international law. In the recent decades، as a result of developments caused by improving human concepts and humanity principles in the international community، the approach of the international judicial practice has also been evaluated in process of recognition of the involved customary rules. This approach is on the basis of identifying centrality and primacy of opinio juris، against the traditional approach، according to which، customary rule is recognized by the preliminary proof of practice.

Because of a crime crisis in societies through 80’s، stabilization in criminality noticed by criminologists. A dynamic fact and stable process which in it، in lack of management in criminal justice، juveniles and immature earlier criminals، might be in danger and as a result، today’s potential stabilizer criminals are tomorrow’s chronic stabilized ones. Beside other ecological، mental and social crime-making bases، notion of criminal justice of adolescents to punishment and other mere retributive ways with no consequentiality or individualization of punishment added to previous problems. Now by restricting the young criminal in the official procedure of monitoring، the tendency of stabilization of crime is doubled. Individualization of punishment and performing effective social reactions requires precise recognition of criminal’s personality. This recognition is possible only by scientific and inclusive study of young deviator’s personality in a necessary process in which we call it afterward “personality profile”. Profiles that will help criminal justice، to decide on the best decision prevent the return of young criminal to the previous habitual illicit way.

Fundamental importance of evidence in the criminal procedure reveals necessity of a deep study of that and its principles. One of The progressive principle governing of evidence in criminal procedure، Is free proof. that is involving free obtaining and evaluation of evidence. According to this advanced principle that there are no restriction in presentation and acceptance of evidence unless with stipulation of legislator. Moreover judges possess freedom to evaluation of evidence. Deep study of that principle reveals that that foundation is in presumption of innocence، public policy، justice and necessity of judgment in justice from religious jurisprudence.

Mental disorders unable to accused in Enjoyment of the legal defenses and destruct mental attribution of an offence to him and Creation of criminal liability. With claim of mental disorder، creation of Responsibility is encountered with doubt and in order Performance of the presumption of innocence and the principle of equality of arms; public prosecutor shall prove mental disorders. In Iranian legal system is mentioned to Madness and drunkenness. Legal materials clearly determine the burden of proof drunk. About insanity، Legal materials and jurisprudence Refer to the need to investigating accused mental condition and the need to seeking expert opinion prove the existence of the disorder. Therefore، if the insanity claim is discussed by the defendant، judge required investigating to this claim Pre-judgment.