نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 31 (تابستان 1402)

In the French legal system, in order to control the fairness of the terms and judicial supervision of consumer contracts, two general categories of criteria have been identified and introduced to control them. The first one is  the Commercial Code, which governs all "commercial contracts" and forms part of a broader law on unfair competition law; it has historically been rooted in countering abuses’ by large retailers of their suppliers of goods. Second, in civil law, which seems to be influenced by the criteria for controlling the terms of consumer contracts in European law and governs the terms of contrats d’adhésion. That is, cases in which the "will" of one of the parties to the contract is not taken into account. In Iranian law, there is no objective criterion for recognizing the unfairness of conditions, and as a result, it has become difficult to control them. The law on e-commerce and the law on the implementation of the general policies of principle 44 of the Constitution are not helpful in this regard either, and the need to pay attention to this important issue is fully felt.

The parent company is a company whose share of the company against another company is sufficient to control management and operations by influencing and electing the board of directors. The most important mission of UNCITRAL is to standardize and modernize international trade law through legislative and non-legislative tools on various issues of international trade law, including the supervision of the parent company. The findings of the present study, which has been written in a descriptive-analytical method with the aim of explaining the theoretical foundations of parent companies' liability in cases of bankruptcy of subsidiaries, indicate that: a) If the company is owned by other companies, with applying the rule of breaking the veil of personality, the parent company may be declared bankrupt under certain circumstances and a bankruptcy order may be issued; b) If the company is a capital company, the parent company can be prosecuted only by applying the rule of fraud to the law.

Agency by necessity in English law is a situation in which a person acts on behalf of another person beyond their previous agreement to prevent harm to the principal, and for such an institution to exist, there must be a prior relationship between the agent and the principal and due to the necessity created in the particular situation, the agent goes beyond the scope of the granted authority and acts in the principal's interests. In this article, after reviewing several statutes in Iran's law, we came to the conclusion that the mentioned institution is recognizable in our law, but no separate and distinct provisions or statutes regarding agency by necessity are legislated in our law. In this research, an attempt has been made to review the legal provisions that are compatible with the definition of agency by necessity. Therefore, by identifying agency by necessity in English law, in addition to identifying the advantages and disadvantages of this institution, we want to examine its existence or non-existence in Iran's law, and, if possible, use the advantages of this institution and if this institution is identified in Iran's law, interpret that in accordance with our legal system and provisions so that we can  use this legal institution in its best way

The Constitution recognizes the right to vote to protect the rights of the nation in the administration of affairs and to protect the principles and values ​​of the rule of religious democracy in the elections of councils. Every citizen has the right to run for elected councils. In the implementation of the rule of law, the conditions for a citizen to be elected are determined by the legislature, respecting the rights of individuals. However, achieving the behavioral aspects of the candidacy with selectable conditions such as belief and moral competence in the process of reviewing the qualifications, causes controversy and deprives the citizen of the right to be elected. The questions are what the nature of the right to vote is and what the capacities and guarantees of the principles of the right to be elected in the legal system of Islamic council elections are. The purpose of this study was to examine the nature of suffrage by looking at strengthening the theoretical foundations of the right of individuals to be elected to elected positions, which has been studied and evaluated in a descriptive and analytical manner by focusing on the constitutional capacities. Findings show that the true expression of criteria (appropriate to the requirements), accurate determination of indicators of voluntary conditions and the development of a specialized procedure with the supremacy of the rights of the nation in the constitution, can lead to the realization of the right to self-determination, removal of obstacles, selectivity, and development of public participation in local affairs.

This article examines the relationship between human rights and the concept of other with a phenomenological approach through the interpretation and description of the importance of the concept  of other in human rights philosophy to provide an introduction to the critique of the liberal approach to human rights. The starting point of this research is by examining the concept of orther in the minds of phenomenological thinkers such as Hegel, Sartre, Husserl and Heidegger. He then examines this concept and its relationship to human rights in the thought of Emmanuel Levine and Robert Bernasconi to provide a critique of the liberal approach to human rights. Although Locke and his followers begin with an abstract and isolated individual outside of society, for the phenomenologist, the starting point is a concrete existence (human existence at the heart of reality). Phenomenology is not based on artificial and constructive intellectual experiences, such as the natural state or social contract, but on the knowledge that no human will be perfect without the constant help of others, including previous generations, and that my emotional and spiritual conflict with them is individual. It starts with a part or part of me and I am a part or part of them. The impossibility of separating me from anyone else makes any attempt to explain the rights or thoughts about the decisions that a person may make, regardless of the society in which you live, meaningless.

Supervision is a systematic, continuous, and uninterrupted care to ensure proper and complete performance of duties and assignments specified in a given domain. It is intended to maximize the goal research coefficient or sightly goals and it can be prognostic or an appointment and posterior or informative. In the constitution of the Islamic Republic of Iran, supervision as a special task has always been an important and fundamental task of the constitutional legislator. Supervising outsourced companies and evaluating their performance is considered as one of the important and integral steps in the privatization process and is one of the most important plans of the privatization organization in the post-outsourcing phase. Certainly, after the implementation process of the outsourcing process, oversight is the most important factor in completing the outsourcing process. Therefore, monitoring the entrusted economic activities and evaluating their performance is one of the most important authorities in the post-privatization phase. In general, post-privatization supervision by the privatization agency is expected to prevent breach of the obligations of buyers as well as to encourage and grant discounts and sometimes penalties and damages to some of them as well as to protect and secure employment and employee rights. To guarantee the success of the privatization and implementation of Article 44 of the general policy in the country, the scope and manner of the exercise of government sovereignty after the transfer of state-owned enterprises to the private sector at different and quite different levels should be specified. This study attempts to address the scope of post-outsourcing oversight in accordance with Article 44 of the General Policy Implementation Act and its related guidelines.

Land under human ownership has a special place and importance in all legal systems and the legislator provides important protections for this property by observing certain conditions. The rights of Islam and the common law also attach special importance to land and have protected the owner and occupier in various civil and criminal regulations. The legal establishment of Trespass is one of the most important issues of tort law in the common law system in this regard, one type of which is Trespass to land. Although this legal establishment does not exist in Iranian law with such a title, by careful evaluation and recognition of its elements, it can be claimed that its contents can be found in the institution of forcible entry and usurpation in Iranian legal system. Since Trespass to land has a long history in common law judgments, by analyzing and comparing the elements of these three institutions, one can identify the commonalities and differences between the elements and responsibilities arising from each in the two legal systems and the achievements of this. Due to its long history, the regime used domestic property lawsuits to promote domestic law. This article analyzes and compares the elements and responsibilities of these three legal institutions after examining the elements of each of the trespass to land in the common law system and the forcible entry and usurpation of Iranian law

The right to a fair trial includes a set of principles and rules guaranteeing the rights of the litigants during the trial, and the "amount", "responsibility" and "time" of the payment of the proceeding costs have many effects on the realization of these principles. The comparative study of the regulations governing the cost of proceeding in the three aforementioned fields in the laws of Iran and England is effective in providing a suitable standard for determining the amount, responsibility and time of paying the proceeding costs based on the principles of fair trial. The current research is a descriptive-analytical one with a comparative look at various documentary sources and studies in Iranian and English law. The right to equal access to justice is the beginning of fair trial and the high cost of proceedings is one of the obstacles to the realization of this principle. The principle of equality requires setting costs at a "reasonable and conventional" level. Auxiliary mechanisms such as legal aid cannot guarantee the realization of a fair trial and even if it can compensate economic inequalities, it disrupts another indicator of the quality of the trial, i.e., time, and causes the trial to be delayed. The result of prolonging the proceedings is a decrease in the accuracy of the court and dissatisfaction of the parties to the trial. Mere failure in a lawsuit cannot justify imposing costs on one of the litigants. The responsibility for payment of proceeding costs should be done according to fair criteria. Therefore, the trial costs should be collected at the right time so that, while providing the possibility of determining the proceeding costs in accordance with the lawsuit and the realization of the trial, the person responsible for paying the fees should also be determined.

Victimization of children and adolescents is one of the problems of today's world, and the physical and mental conditions of children, their vulnerability and the multitude of cases of child abuse justify the existence of a special judicial system for this group. Until a few decades ago, there were few guidelines in international documents regarding the differential proceedings of delinquent children, and the focus was on delinquency of children, but in the last two decades, under the influence of criminological perspectives and the efforts of civil institutions, this matter has been the focus of legal circles and documents. Despite the approval of the Child and Adolescent Protection Law in 1381 and the Criminal Procedure Law in 1392, Iranian law has not included this issue in the legislative field and has not taken into account the characteristics of differential proceedings. This article has been written in a descriptive-analytical method with the aim of examining the main components of differential proceedings of child victims in the pre-trial stage in Iranian law. In this regard, while explaining the characteristics of the subject, the current situation is examined and the desired situation is explained by looking at international documents. According to the research findings, despite the efforts of the legislator in the Law on the Protection of Children and Adolescents approved in 1399, shortcomings in this area are still observed.

With the outbreak of the Covid19  pandemic, the ways to prevent the spread of the virus challenged the privacy at national and international scope. Conflicting the right to privacy with other rights, such as protecting the lives and health of others or securing public interests requires taking an appropriate approach to balancing privacy protection with the need for reasonable and necessary information and action due to prevention of the spread of the pandemic. This article takes a comparative view; it uses library resources, studies the guidelines and follows practical measures at the pillars and legal status of the conflict between privacy and citizens' right to health and the fight against the Covid 19 pandemic in Iran and France to address the questions whether control of pandemic can be one of the exceptions to the need to protect the privacy of individuals, and if so, what the legal principles and rules governing this response are. In order to answer these question, the author emphasizes the legal gaps in the current legal system of Iran, both in the field of substantive laws and in the field of defining organizations and technical institutions whose existence and powers are derived from legislative channels. It is argued that the privacy, as one of the most vulnerable areas of fundamental rights and its provision mechanisms in the event of widespread diseases as an emergency situation, should be comprehensively supported in light of specialized legislation based on universal principles of human rights. It is emphasized that providing public health should not act as an extra-legal tool to violate the right to privacy, and governments can make decisions and take action in this field within pre-defined legal and technical frameworks.