محمد عیسائی تفرشی

The contents of the Legal Bill to amend a part of the Trade Law act 1968 which have been affected by the Stock Market act 2005 in the realm of legal deadlines in relation to the regulations of public joint-stock companies as one of the most important elements in the stock market, have undergone changes. These changes have been studied in the present research in two categories: Institutional and abrogator categories. Institutional issues include cases for which basically no deadline has been established in the Legal Bill Act 1968 and was considered for the first time in the Stock Market Act 2005, and the abrogator cases are those deadlines for which due date has been assigned and by approving the Stock Market Act 2005 has been abrogated. The philosophy of the mentioned effects, both in the field of institution and abrogation, can be found in the goal of the legislator to protect the rights of shareholders and the transparency of capital market information. Determining the period of subscription, determining the period to return the funds, the period for dealing with the obligations of the subscriber, changing the time for using the funds paid by investors, changing the time for withdrawing the funds in case of no increasing the capital, changing the period for the board of directors to deal with the obligations of the underwriters, and determining the period for disclosure of the board of directors' decisions, are the dates studied in this research.

The concept of good faith is recognized in many legal systems and entails significant implications. It has received particular attention and influence in German and English law across various fields. The liability of non-owner possessors (in both legal and material terms) represents one of the most important areas. This paper aims to examine the possibility of the impact of good faith on the liability of non-owner possessors regarding damages caused to the subject of possession, as well as the quality of this impact, through a library-based comparative analysis. In German and English law, the recognition of the concept of good faith and the emphasis on attributing damages to the conduct of the possessor to recognize their liability, alongside the influence of good faith in establishing this attribution, have allowed the good faith of the possessor to eliminate or mitigate their liability in both tortious (obligatory) and contractual contexts. However, in domestic law, the influence of jurisprudence and the scope of the concepts of usurpation and quasi-usurpation, particularly in cases of material possessions, limits the support for a possessor acting in good faith, and it seems that the solution to protecting a possessor acting in good faith lies in distinguishing between the usurper and the quasi-usurper. On the other hand, in legal possessions, the attribution of damages to the conduct of the possessor receives more importance, and to some extent, the situation is similar to German and English law.

In most legal systems today "good faith" is a well-known and effective concept in legal relations. One of the most important aspects of this effect is the effect of good-faith in the transfer of ownership. So if the person in possession; was acted in good-faith and unaware of the other’s rights to the property transferred; subject to some conditions, his good-faith causes the transfer of ownership to him and remains immune from real owner. This approach has been reinforced in German law, meanwhile specifying in legal provisions, by the establishment of principles and rules by jurists. In English law, however, the concept of good-faith has not been as popular as that of German law. However, the vast powers of the courts and the adoption of realistic, justice-based approaches by them, have led to the protection of good-faith possessor and this approach has been extended to some legal provisions. The concept of good-faith is also recognized in domestic law and is specified in some legal provisions. considering the dynamism of “Shi’a jurisprudence” as the basis of rules and legal provisions in domestic law And the lack of any conflict between the essence of good-faith and this basis, It seems that The approaches of the German and English legal systems can be used to strengthen these domestic legal institutions whose actions lead to the protection of the good-faith possessor and change some traditional approaches which the application of them would lead to the detriment of the good-faith possessor.

The flow of accurate and reliable information is critical to enhance market transparency and efficiency as well as investor protection. However, it is not possible to achieve this merely by requiring the executives to report financial information, and corporate governance should inevitably devise a mechanism to monitor the accuracy of the information contained in financial reports. Therefore, along with the internal control process, parties, known as gatekeepers, have been designed outside the issuer’s organizational structure to evaluate the accuracy of the information disclosed.. In the capital market, there are some gatekeepers who do not perform  gatekeepingfunctions, as a matter of principle, but implicitly verify the accuracy of the issuer’s financial information and provide the basis for investors to have confidence and make informed decisions only while performing their primary duty. These parties are therefore referred to as indirect gatekeepers. Securities analysts, equity underwriters, attorneys and legal advisors are among this group of gatekeepers. This article has attempted to examine the concept, function, and effectiveness of examples of these types of gatekeepers in Iranian and American law. For this purpose, information was collected in the Documentary and library form and then evaluated in a comparative method. The results of the analysis show that because these persons inherently are not gatekeepers, they naturally encounter conflicting situations when performing their primary duties and gatekeeping functions, which weakens their effectiveness in achieving gatekeeping objectives. As a result, requiring certification based on the explicit assurance of the accuracy of the information is one of the most important suggestions that have been made to improve their efficiency and effectiveness. However, in order to better ensure the quality of financial information, the capital market should use, in addition to indirect gatekeepers, other professional persons created in principle to perform gatekeeping functions in the market, known as direct gatekeepers.

In the scope of global trade, the implementation of international contracting contracts is facing some challenges and issues. One of these issues is providing the conditions for implementation of these contracts and the obligation of the employer in this regard. The main and crucial point is to determine the basis of employer's general obligation to provide the conditions for implementation of international contracting contracts which makes defensible why of the task and in other words, the employer's general obligation in this scope; because the existence of any obligation must be based on a foundation that in absence of that foundation, imposing the obligation will be eliminated. In this article, we intend to examine the issue with a comparative study of Canadian and Iranian law. The research method is descriptive-comparative with a "contextual" approach. The focus of this research is on "international contracting contract". The method of collecting research resources is a library, which is done by using written sources, documents and if Necessary, online information. The research finding Suggests that in Canadian and Iranian Law, the Main foundation for Liability arising breach of the employer's general obligation is the “Risk Management Theory”, with explanation that the prevailing risks that occur in the scope of international contracting contract are often in conflict with the employer's interests in the performance of the contract, he must in order to avoid these risks and the resulting damages, manage and control.

Insolvency in the legal sense means that, the debtor, owing to the value of his assets and assets, he is not able to pay his debts at the maturity of the debt. In American law, the bank's rules and regulations for insolvency are different from the rules on corporations. In the case of banks, regulators do not expect the bank, based on what is common in corporates bankruptcy law, unable to pay its debts to declare it’s insolvency and declare it according to the standards provided by the law. Meanwhile, in Iran's law, according to the silence of the monetary and banking act of the country, the concept and criteria for the bankruptcy of traders and other legal entities are also applied for banks. But the Iranian legislator, considering the particular position of banks in the economy, should explain the concept of insolvency to banks in order to allow regulators to decide on bankruptcy before the bank is unable to pay off its debts.

The present article examines the Iranian intellectual property rights system regarding handicrafts; emphasizes the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO). Handicrafts as a subject that can be supported by the intellectual property rights system has not received much attention so far. On the other hand, this type of artwork has become increasingly important both globally and commercially. The main question raised in this study is what is the approach of the Iranian intellectual property rights system and the TRIPS agreement to handicrafts? And how can it effectively support these works?
The findings of the article indicate that handicrafts are examples of visual arts and there is no uniform approach to them in the Iranian legal system and the TRIPS Agreement and other international documents. In Iranian law, it can be protected in copyright or industrial design systems, geographical indications and trademarks. The TRIPS Agreement addresses the commercial aspects of intellectual property rights in general and in particular, and refers to the Berne Convention on literary and artistic rights.

Bank mergers is one of the complex issues of the banking system. Mergers in the banking system take place in a non-assisted or assisted way. Due to the distinctive characteristics of banks from other commercial companies and the special effects of mergers in the banking system, it is necessary to formulate special rules governing the merger of banks. Determining the role of the banking supervisor,the scope of its powers and duties,the role of other supervisory bodies such as the Competent Competent Authority and the merger assessment criteria in non-auxiliary mergers and determining the competent decision-maker, the scope of its authority and the type of banks subject to this type of merger shall be regulated by law. In US Federal Deposit Insurance Company act (1950) Banking Merger act (1960) and other related acts,the rules governing bank mergers are explained. The result of the study indicates the lack of regulations appropriate to the merger of banks in the Iranian legal system.

One of the most important theories in corporate law is the organ theory.According to this view, the will and actions of directors are deemed to be will and actions of the corporation. Analytically, the personality of directors and corporations is considered to be integrated and this identification is divided into two types of absolute and relative. According to absolute identification, the personality of the director is merged into that of corporation and his personal existence is ignored.

And according to the second point of view, while accepting the identification of directors and corporation, the personal existence of the directors in the internal relations of the corporation is not ignored. And the will of the director at the time of making decision or taking action for the company is considered to be the successor and manifestation of the will of the corporation and the decision of the director is considered to be decision of the company. The organ theory has a significant impact on the criminal and civil liability of corporations and on the fact that the restriction of directors’ authorities against third parties is not valid. In the past, the board of directors was considered to be the sole organ of a corporation, but currently other managers are also considered to be its organ. .The organic theory of directors in corporations is accepted in Germany and England. Although there is disagreement in Iranian law, some jurists are inclined to the above theory.

As companies are abstract, the negotiable instruments of the company are signed by real persons.The extent of authority and liability of directors in signing such documents, not only theoretically but also practically, will have significant effects on the business relationships of the company and the third parties. English law considers the directors of the company as the organs of the company and gives them wide authority.If the director signs negotiable instruments beyond his authority or even outside the company’s frameworks and responsibilities, it is presumed that the company itself has signed it. However, this does not prevent the company from penalizing the director. Iranian law, in relation to the limits of the directorchr('39')s liability, differentiates the company limited by shares from other companies. Due to the wide range of authority that the directors in ‘the company limited by shares’ possess, generally the signing of the negotiable instruments by them leads to the liability of the company limited by shares. In other companies, the authority of the directors is limited to the authority delegated by the company.If the directors sign the negotiable instruments beyond their authority, the company will not be liable for the negotiable instruments and the third party should be directly addressed to the directors, for compensation. In the case of cheque, due to certain provisions in Article 19 of the Law of drawing cheque, if the director board of the company is issued within the limits of the authority, he has joint and several liability with the company.

In most of the legal systems of the world, it has been tried to impose special rules on bankruptcy, given the role of banks in the countrychr('39')s economy and the differences they have with other commercial companies.In the United States, the legal system governing the bankruptcy of banks is known as "Resolution Regime", which has been translated into "Hall va Fasl or Gozir" in Iran. The most important goals of this system are to prevent the disruptions of the financial system in the country, to continue to provide key services to banks and not to impose bankruptcy consequences on the government and taxpayers.In Iran law, the bankruptcy system of banks is not completely separate from the corporate bankruptcy system, and in the event that a bank becomes bankrupt, the provisions of the Commercial Bankruptcy Law are general rules and other specific monetary and banking regulations.Of course, given the importance of banks in the country, these rules are not enough for the bankruptcy of banks and, along with other advanced countries, must provide a specific system for resolving bankruptcy of banks, which coordinates According to the Imamiyyah rules, it is not the only solution to dealing with bankruptcies, which is very costly and time consuming and poses a threat to the stability of the financial system.

The financial crisis has always been a threat to businesses because of the political and economic problems, and the legislator has taken action to prevent this occurrence because the financial crisis of the firm deprives society of its benefits. In the event of a financial crisis and the governing of bankruptcy rule, the question is that what extent can these legal rules prevent the business from collapsing?
In response to this question, US and Iranian law were studied. In the United States as a country with a capitalist economic system, the legislature's primary goal is to support bankrupt and fresh start of the business. This goal has been considered in the reorganization and liquidation. To achieve this goal, it has been attempted not to shut down businesses enterprise prior to the reorganization and liquidation. In Iranian law, after the bankruptcy of an enterprise, the possibility of fresh start is very weak.

There are different opinions about the application of competition law on the banking system. Many scholars do not consider the banking system to be subject to competition law because they consider the competition as a threat to the stability and security of the banking system. In contrast, some scholars believe in the exercise of competition law in the banking system. It is impossible to fully implement competition law in the banking sector due to the inherent characteristics of the banking system. Competition in the banking system increases efficiency and innovation in service delivery, however; stability is essential to maintain confidence. These purposes are not always consistent. The present paper seeks to examine the theories proposed in this field and the suggested solutions in American law to examine the interaction of competition law on the one hand and the policies of maintaining stability on the other hand regarding the merger of banks. The results of the study indicate lack of attention to the requirements and specific features of the banking system in the application of competition law on the merger of banks in the Iranian legal system.

The United States has been pioneering in the field of bank deposit insurance, and the deposit insurance was formally established in 1933 by the “federal deposit insurance corporation”, but in Iranian law, the deposit insurance system was established by the adoption of Article 95 of the fifth development plan act adopted in 2010, and the deposit guarantee fund was established in 2013. Due to the difference in the history of American and Iranian law, the deposit insurance system, although have similarities, but their differences are greater. In fact, the Federal Deposit Insurance Company(FDIC), in addition to being a deposit insurer, is one of the main supervisors of the US banking system, and thus, with its consistent supervision, will prevent the deterioration of the financial condition of the banks. Also, if (FDIC) sees the bank's situation unsatisfactory, it has the power to appoint itself as the bank's receiver and to prevent exacerbation of the bank's inappropriate condition, but in Iranian law, the duty of deposit guarantee fund will start when a bank goes bankrupt. The present study attempts to examine the deposit insurance institution in the US and Iran with a comparative approach, and ultimately offers suggestions to strengthen the institution in Iranian law.