فهرست مطالب hanieh zakerinia

There are three distinct periods in the history of the relationship between civil and criminal liability: mixing, separation and convergence. After civil and criminal liability were integrated into each other for a long time, in the 17th century AD, grounds for their separation were provided. Nowadays, civil and criminal liability in modern legal systems are separated from each other and with the approaches proposed in each, they are getting closer and effectively communicating with each other. By applying the aforementioned developments in Iran's legal system, it is clear that the distinctions between civil and criminal liability are not properly observed and clear faces of mixing are evident. In particular, strict rules have been considered in the civil law and in the discussion of the owner's rights and the liability of an ignorant person for usurpation; including absolute responsibility, disregarding the value of the usurper's work and the usurper's guarantee regarding non-reimbursable interests. The imposition of such rulings and its extension to the ignorant usurper is not compatible with the principles of civil liability, and therefore it can be considered as a manifestation of mixing civil and criminal liability in Iranian law. Because this approach is more of a criminal responsibility than a civil responsibility, and it has caused the objectives of another field of responsibilities to be raised and pursued in the civil responsibility. The present research examines the mentioned subject in an analytical-descriptive way.

Normally, the common intention and goal of the parties to the contract is the full implementation of its provisions. To prevent breach of contract and fulfill the common will of the parties, there are several performance guarantees that One of them is the provision of a certain amount in the contract as a liquidated damages. The purpose of this study is to investigate the effect of this performance guarantee on general and competitive rules. In this regard, the nature and legal effects of this method have been studied to answer this main question that What is the nature and legal effects of liquidated damages in applicable legal systems, and which approach is more compatible with reciprocal justice and the purpose of the contract? In addition to the general rules, in competitive rules, the application of anti-competitive practices upsets the relative balance of power between the parties to the contract.The effect of including this performance guarantee in accordance with the general rules is three approaches: Absolute application - such as Iranian law and French law before the 1975 reforms; The invalidity of the condition - in the system of common law and the application and execution of partial damages with the possibility of adjusting it to unreasonable and exaggerated conditions (UNIDROIT principles, PECL and French law after the 1975 amendments).

In Unilateral Legal Acts, only one party's volition is creative. As it is exceptional to seize the rights of others, the legislators need to inspect the perfection and influence of the volition. So they provide some formalities for Unilateral Legal Acts. But the most essential issue is “the effect of these formalities on determinant's volition”: whether they are terms to create Unilateral Legal Acts or terms to prove them. To answer this necessity in present article, a comparative study on all kinds of unilateral legal acts, in Iranian law, other Islamic countries law (especially Egypt) and also Western countries law (mostly French and English Law as the leading examples of the two legal systems: Romano-Germanic and Common Law), has been done. By an inductive and comparative research, we classify these formalities, according to the phase (time) of regarding the formalities: “in the process of volition to create” unilateral legal act, and, “before” or “after” that. We also make formalities of various unilateral legal acts classified and distinguished, by presenting their legal related provisions in internal and foreign laws.

To establish a creative volition in unilateral engagements, the determinant should, firstly, create his/her internal will in his/her mind. Although some jurists believe that as we do not need other's interference, the internal will is sufficient to establish a unilateral engagement, it seems that this kind of will ought to be expressed in order to be realized as a social and legal fact. This view is also because of the fact that the unilateral engagement effects other's rights and its undertakings should be insured. Hence expressing is a "term", which effects the internal will and so creates the unilateral engagement.
In process to establish the creative volition, we should use "the special ways to express volition" in order to make the internal will enter the external world. These ways and instruments are traditionally "word" and "act", and the new "electronic instruments". As it is doubtful to express volition with "gesture", "exchange", "inactivity" and "silence" in unilateral engagements, here we evaluate the possibility of using them. However, all these ways and instruments should explicitly or implicitly indicate the volition. In other words, the external will should accord the internal one. The explicit word (literal or written) indicates the volition equivalently while the implicit words and also acts, circumstantially and implicitly, indicate the volition.

Ways of compensation in civil liability، which are the ways taken by the aggressor to execute his obligations، are determined based on civil liability purposes. These purposes include: perfect compensation، consent of the aggrieved party، and restoration of his previous status (restitution in integrum). Given that the originality of these purposes is different in legal systems، the ways to provide them are not the same. These ways are generally as follows: restitution in kind or restoration of the previous status، which is represented in different forms، and equivalent compensation، which has two forms: non-pecuniary compensation (giving the substitute) and pecuniary compensation (paying money). Although the general principles of these ways are more or less the same in different systems، the quality of their utilizations and preferences is different in legal systems. The two main ways of compensation are not along with each other، so that each party can freely choose one. But the transposition between them is not related to the public orders، so both parties can compromise the contrary، or the courts will take appropriate way.

Contract excuses، as exceptions to the principle of necessity of contract، are concepts، which according to them، the parties can legally get rid of their failure of the contract''s obligations. Some excuses are without the will of the parties، and some others will be caused by one or both parties. Involuntary excuses may generally make the contract impossible to enforce (impossibility)، or they may make it hard to enforce (hardship). The writers are going to have a comparative study on both situations، «impossibility» and «hardship»، and their effects on the contract according to the legal systems and also regional and international instruments. They further wish to suggest a few articles (for Iran civil code)، as proper decisions (termination، suspension and the right to terminate) for the contracts in these two situations. Having a comparative study on voluntary excuses «exempting and limiting clauses» and «the right to refuse performance of obligations»، they found some evidences in Iran provisions، while a general regulation will be appropriate.

Multinational Corporations (MNCs) establish subsidiary companies in various countries to expand their operation all over the world, and to invest in industrial areas of developing countries. MNCs have gained increasing importance and expansion after the Second World War. The most common structural model for a multinational enterprise is the pyramid one. In this model, a parent company is placed at the head of pyramid, and subsidiaries are owned and controlled by the parent company. In MNCs the Parent company and also each subsidiary has the nationality of its registrar country. MNCs have civil and criminal responsibility for damages to third parties. The interconnected management of subsidiaries and the parent company, and the fact that subsidiaries are controlled by parent company determine the responsibility of the parent company for subsidiary companie's operations.