فصلنامه مطالعات حقوق خصوصی
سال پنجاهم شماره 4 (زمستان 1399)

Abstract According to Article 1169 of the Civil Code, mother has priority for the custody of her children, including girl and boy, from the date of their birth until the age of seven, and from the age of seven onwards the custody is with the father. But with respect to the termination of custody the Civil Code is silent and it is not clear whether the custody of children is ended by puberty or by prudence. The silence of the Civil Code has resulted in the difference of opinion among legal writers and the courts in respect of the time for the termination of custody. Some of them believe that custody is ended by puberty while some others maintain that by reaching the age of prudence or where prudence is proved in the court, custody is terminated, while this issue is one of most important issues of family law and the interest of the child requires this issue to be settled. This paper by examining this issue from the viewpoint of legal writers and judicial decisions and their reasons concludes that custody is terminated by prudence. Termination of custody at the age of prudence, in addition to the interest of the child, is compatible with Islamic law and the philosophy of custody and is also in harmony with the Islamic Penal Code and the Convention on the Rights of the Child in which prudence has been recognized as the end of childhood.

The valuation of patent as an important part of intellectual property is one of the most important economic arguments in intellectual property rights and civil liability law that its explanation could lead to solving some problems such as compensating violated intellectual property. From the economical point of view, the country's economic development depends on access to technology. Therefore, the more precise the method of valuation, the economic exploitation of intellectual property is more dynamic. The process of technology valuation varies depending on the stage of its diffusion, since the demand of the technology for the various stages of its creation, dissemination and commercialization results in the increase or decrease of the conventional value of technology and consequently the need for a different method in its valuation. In the present research, after dividing the technology into three stages of the first technology, prototype technology and commercialization technology, the valuation methods of each one will be analyzed and it will be argued that the use of appropriate valuation methods will increase the accuracy in determining the value of the Relevant technology. The method of this research is based on a descriptive-analytic trend-based library approach. Information about the present study is compiled through the study of existing resources and after the study, necessary analyzes are presented in the form of legal thought.

The main object of tort law is compensation of damages arising from unlawful acts. But we are facing some kind of acts that will obliges us to take proper actions without arising any damages. Technological development in spite of useful consequences, sometimes leading us to unknown risks and unbearable damages. Given old experiences of the humankind and with the help of the legal rules, lawyers trying to reduce the inadvertent effects of the damages and prevent the occurrence of these unforseeable and uncertain harms. One of the legal instruments constitute of bearing anticipative obligation to the operators. This obligation is based on the economic analysis of law. The main concern of this essay is considering the concept and its application in the Iranian legal system and comparative studying of the subject in the light of tort law. Consequently, the author believes that obligation is lawful in the risky situations.

A documentary credit consists of a combination of several legal relationships. In some cases, the underlying contract or the contract for the opening of the credit may be illegal; hence the question arises what is the effect of underlying contract on the documentary credit and whether illegality in the underlying contract should be accepted as an exception to the autonomy principle of documentary letters of credit.In the law of Iran, the issue of illegality of the documentary credit itself and the underlying contract has been raised in the civil cases of the biggest bank fraud and the opinion of The majority of judges do not accept illegitimacy as an exception to the principle of autonomy and believe in the absolute sovereignty of the principle of independence;But in recent English cases, the judge’s obiter dicta accepted the illegality of the underlying contract as the exception to the principle of autonomy in documentary credit. A comparative study of illegality in common law countries also demonstrates that some jurisdictions have getting ready to recognize it as another exception to principal of autonomy in the documentary letters of credit

“Declarative Function is one of the expected legal functions of all "Companies registration systems”. But the interpretations of this Declarative regime in due to the lack of clarity of concept of “Confidentiality” in company’s information has been unable to answer the question of how companies registration interact between "access to information" and "protection of confidentiality". While, the answer to this question based on identifying a balanced approach of companies Registration in addition to reducing "transaction costs”, will reduce "Company’s information control costs”. In this paper, based on a descriptive-analytical approach and We have come to the conclusion that: First, the scope of confidentiality in the field of companies is restricted to one of the two branches of privacy and trade secrets, depending on the type of company. Second, the corporate registration system may encounter three models for access to information, the “Freedom of Information Model", the "Contract Freedom Model", and the " right of Access to registered information", the last is the equilibrium solution adopted by the corporate registration system that based on intelligent performance provides information according to stakeholder needs assessment and thus protects a large amount of company’s information as confidentiality.

The application of uniform conflict of law rules in all classes of non-contractual responsibility will result in undesired results. Therefore, The compositors of Rome II Regulation (2007) of European Union in the paragraph 19 of its preface emphasized that certain rules has been provided regarding the determination of applicable law on non-contractual obligation for those groups of special compulsory guarantees which the application of the original rules of article 4 (law of the place of injury) in them prevents from logical balances between the interests of disputed parties. Therefore, The Rome II Regulation has determined the special rules in small classes of torts including responsibility resulting from production, unfair competition, environmental injury, breach of intellectual property law, industrial action and some quasi-contracts. This article will analyze them with examination on special conflict of law rules of Rome II regulation.

As a basic rule of the procedure It is argued that the procedural plea, If accepted has no effect on definitive rejection of the claim of the other party. Article 84 of the Civil Procedure Law by its eleven sectios, various titles of procedural pleas have been enumerated. Not only, the number of procedural pleas are not limited only to the sections mentioned in that article, but also all of them have no same nature. Some should be considered as substantial defenses as a result of the effect of rejecting the claim after a substantive proceeding. Another category of them, have the same effect but without a substantive review. The rules of this category could not be compared to the rules of procedural pleas or substantial defenses, because they are different. They are, according to their effect, in rejecting the claim, are substantial defense, and they are similar to the procedural pleas of inadmissibility in preventing entry into a substantive review. In this paper, we conclude that the creation of a third category along with the two others will provide a great deal in order to properly understand the rules of procedure and the effects of defenses and it would be useful for theory and practice of procedure.

Conciliation or mediation is a specific way of resolving disputes because it bases on parties' agreement and settlement agreement is satisfactory for both parties. The United Nations has promoted this way of dispute settlement by ratifying the Singapore Convention 2019 on Settlement Agreements Resulting from Mediation. Iran's adhesion to the Convention is a positive step towards enhancing the status of mediation in Iranian legal system. One of the major issues raised in relation to the Singapore Convention is its scope. There must be three main features in a settlement agreement between the parties to fall within the scope of Convention: “Resulting from Mediation”, “Being international” and “Being commercial”. In the present article, the concept of these three elements is examined and Iranian law's position on them is discussed. The conclusion of this article is that considering philosophy of the Singapore Convention's enforcement regime for settlement agreements and to promote the status of mediation among dispute resolution methods, the above-mentioned three criteria should be widely interpreted to provide more settlement agreements supported by the Convention.

In law of English and United States, usurping the opportunity of contracting belonging to the company by director is forbidden because of its contradiction with fiduciary duty of avoiding from conflicting manager’s interest with company. However, there are differences between the two countries on the concept of belonging opportunity to the company. England’s law, emphasizing the mentioned duty, considers any opportunity created for the company or in the company's vision as belonging to the company. But in United States of America’s law, the opportunity for the company must have financial value. Also in the two countries, there are three sanctions of the manager's duty to return all the benefits of the compromise, civil liability for compensation of losses and punitive penalties, which shows the serious approach of these countries to combat the abuse of managers. In Iran’s law, due to the silence of commercial regulations, the main basis that can be considered for the prohibition of the manager is its contradiction with the manager's commitment to preserve the interests of the company. Based on this, the concept of opportunity belonging to the company becomes relative, because only usurping the opportunity that the company has an interest in, is considered against the interests of the company. Moreover, the sanction of its implementation is the only civil liability of the manager to compensate the company’s losses, which does not have the appropriate deterrent power. Therefore, criminalization of opportunity Usurping is necessary.

Occurrence of unpredictable incidents and not fulfillment of (or delay) the commitments by airlines are so common and inevitable. In many cases, not transferring or delay in carriage of the passengers goes beyond a simple problem and make big mental dilemma for passengers which some of them have long-lasting effect on them. In this situation wisdom, conscience, religious jurisprudence and law cannot ignore it. In this paper we try to recognize the mental injuries which maybe occur during the flight or before or after it and examine them legally. In this regards we will review the international community and government1s` point of view to these mental injuries and after that we will try to find the situation of these injuries and its indemnification in Sharia and Iranian legal system, especially recovery them by monetary methods. Finally we try to examine the judicial precedents of Iranian courts in relation to mental injuries of aviation passengers and how they have dealt to these injuries and whether they comply with Sharia, Iranian legal system and International regulation or not.