soroush safizade

The " Booking Principle " as the link between "registration" and "validity” or opposability of land transactions" is one of the fundamental principles of the land registration systems that have been subject to exceptions, such as transfers based on inheritance, in the most registration systems, including Iran and raises questions; including what types of transfers are usually subject to the exceptional effect of land registration; what are the justifications for considering a transfer as the exceptional effect of the land registration; what is the function of the land registration system in relation to transfers subject to the exceptional effect and according to the expected function, how the beneficiaries of such transfers are led to register them. The present study, with a comparative-analytical method, first identifies the examples of transfers subject to exceptional effect in the land registration systems; And by examining the justifications of "acquisition based on the adverse possession", "transfer based on the inheritance" and "transfer based on the court decision" as the three main examples of these transfers - the latter two examples are also present in Iranian legal system – considers "supporting possession based on Labor Theory", "inheritance as a constitutional rule related to the public order" and "the necessity of not denying legal situations resulting from law and judicial decisions" as the most important bases for considering these examples in the realm of the exceptional effect of the land registration, regarding them, the registration system has the declaratory function. In this regard, to encourage the beneficiaries to register transfers subject to the exceptional effect,  the general solution of "relative effect of registration" is proposed; Although it is not clarified in the Iranian legal system, but adherence to it can be observed in the jurisprudence and some circulars according to the principles of registration.

The “Business registration “ is a mechanism for identifying merchants and distinguishing them from non-merchants that has been the focused by the legislators of the Civil Law countries due to its especial legal effects for ensuring transaction security. However, different countries based on their needs assessments and their fundamental foundations in the objective, subjective or mixed commercial law system, have predicted a model of merchants’ registration systems that has fundamental differences from each other and shows different legal functions. Therefore, the question is what functions does the merchants’ registration basically provide, and according to these functions, what are the types of merchants’ registration systems. This study with comparative- analytical view has concluded that “ Merchants’ Registration” has come into existence with the two goals of “Accelerating, facilitating and guaranteeing commercial operations” in the private sector and “governance control and supervision of commerce” in the public sector; And in this field, the legal systems have used three different models based on the “role of business register book in recognition of merchant “ component, that registration mechanism based on an objective system is more efficient than two other in fulfilling the expected legal functions; In this regard, some legal reforms are recommended for the implementation of the objective registration system in Iranian law.

Article 34 of the Iranian LICA mentions several reasons for setting aside the arbitration award in three paragraphs. The last cause, to a large extent similar to the fifth paragraph of Article 489 of the Civil Procedure law, refers to the "Conflict of the Arbitration Award related to Immovable Property with the Provisions of the Notarial Documents". A cause due to its lack of clarification in the UNCITRAL Model Regulations and the 1958 New York Convention raises the question of what is the meaning of the "Notarial Document" contained in this paragraph and what are the justifications for including or removing this exception in the provisions of the Iranian LICA.This analytical descriptive article has reached the following conclusions using the library research method, First of all, the intention of the legislator in this provision is the specific concept of the notarial document - in the sense of a document prepared by the notary; Because the subject of the law is commercial arbitration, and commercial operations as defined in articles one to three of the Commercial Code, usually refers to transactions. Therefore, if the third paragraph of Article 34 has a concept about commercial operation, that concept appears only by manifesting the meaning of the notarial document in the "document prepared by the notary." Also, part of the third paragraph of Article 34 holds, "unless the "arbitrator" has been authorized to act as "amiable compositeur" regarding the latter issue." implicitly implies that a legal relationship has been concluded between the parties within the framework of the notarial document in question, which, in the form of its terms, the arbitrator has been given the right to compromise.Secondly, Regarding the concept of setting aside the immovable property arbitral award based on Conflict with the provisions of the notarial act, three main points of view have been raised in the opinion of arbitration law experts, based on which they have considered the requirement mentioned above as a redundant provision:The Non-incorporation of subject matter point of view believes that the transfer of immovable property is outside the scope of the LICA due to the non-commercial nature of the immovable transaction. The main challenge of the present view is the neglect of the wide scope of commercial operations of Article 2 of the LICA, derived from the footnote of Article 1 of the UNCITRAL model regulation, and conflicts with Article 2 of the Commercial Code.Although it may be said, since joining the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Iran, like many countries, has used the right of reservation of paragraph one of Article 3 of the Convention regarding the governance of internal regulations in the definition of commercial operations, the Commercial Code definition of commercial operations is acceptable; However, in rejecting this argument, the possibility of difference between the concept of commerciality in the New York Convention and commerciality in the LICA has been mentioned. Even beyond that, it has been said that if Iran has accepted the New York Convention subject to the definition of commercial operations according to its internal regulations, this does not mean applying articles two and three of the Commercial Code. It also makes sense to refer to the general criteria of the LICA.The view of Conflict with public order believes that from the perspective of domestic law, immovable property is a part of the territory of countries, and the sensitivity of the legislator regarding immovable property and the possession of foreigners has historical roots, which places it in the category of domestic public order. According to some jurists, this sensitivity in the field of land registration system has become much more intense, especially after the events in Palestine.From an international point of view, the Lex rei sitae is one of the oldest rules in private international law, according to which the legal regime governing immovable property is assumed to be the law of the country where the property is located. In this regard, land registration rules are considered a manifestation of public order based on the Lex rei sitae.In this regard, although according to the acceptance of the land registration system in most countries, it may appear that the acceptance of this theory is not compatible with the concept of relativity in public order. But considering that relativity can be different based on the concept and scope of public order in different countries (spatial Conflict) or different periods (temporal Conflict), although from a spatial perspective, the issue of notarial documents has an almost universal consensus; From the temporal point of view, the relativity discussed can be attributed to the issue of notarial documents.The third point of view regarding the non-arbitrability of claims related to real rights believes that arbitration is only specific to the rights of obligations and cannot refer to real rights, which have to be registered in the land registry. In criticizing this point of view, it should be mentioned that according to the rule in Iranian private law, except in cases where the law prohibits arbitrability, all claims are arbitrable, and immovable property is not excluded from this principle. In this regard, the pre-sale contract is one of the contracts that, according to Article 3 of the building pre-sale law, is made through the preparation of a notarial document by the notary and its notice is sent to the local registry office and included in the title document. However, paragraph 10 of Article 2 of the law provides the mandatory arbitration mechanism. Article 20 of this law states that all disputes related to the pre-sale contract have been subject to arbitration.Therefore, paragraph 3 of article 34 of the LICA is part of the second paragraph of the same article. On this basis, it is suggested that it be removed according to the logical justification based on the doctrine of Conflict with public order. With this action and regarding the above-mentioned interpretation, Iranian regulations consider international standards, and respect for notarial documents is maintained in terms of public order.

The status as a quality that the legal system of any country has determined for a legal entity is one of the important issues for monitoring legal entities. In this regard, the existence of an integrated system of "monitoring and identification of legal entities" in Iran and the international system is one of the mechanisms that have been put forward in order to solve the aforementioned challenge and promote transparency, increase awareness and gain public trust. In such a system, although the existence and scope of the legal entity's competence can be identified by third parties; But legal entities, like any other legal phenomenon, do not always have a fixed "legal status" and may undergo changes after they are created. In the process of monitoring and identification of legal entities, the distinction between the status of legal entity and the status of ID has been considered due to the effective relationship between the two, both in Iran and in the Global Legal Entities Identifier System(GLIES); And he has raised the question of what effect the change in the "legal status" of legal entities will have on their "validity of ID". The current research is in the light of a comparative study between Iran's national ID system and Global Legal Entities Identifier Foundation (GLIEF) using desk study in the method of information collection and descriptive-analytical research method, has explained types of relationship between the status of a legal entity and the status of the national ID in the current system of Iran - based on the type of influence that the status in the first sense has on the status in the second sense. Then, in the context of the principles governing the legal entities ID system, has criticized each of the existing categories in terms of the type of influence and has provided solutions to solve the challenges of the national ID system.

Ship registration is one of the registration systems that has been considered by legal systems since ancient times. The private dimension of this registration system in light of registration of ownership and other rights, along with the public dimension of granting citizenship to the ship, have turned the ship registration into a private-public system. However, so far, the functions of the ship registration system and the classification of registration systems based on the type of function have not been independently studied and has left questions such as ‘What are the functions of the ship registration system in each of the dimensions of private law and public law, and according to these functions, what are the types of registration systems in each of the areas of public and private law’ unanswered. Based on comparative studies, we concluded that the ship registration system in the field of private law has the supportive-informational function and based on this, three systems of Constitutive, Declaratory and Protective can be developed and Iranian ship registration is the constitutive one. Also, in the field of public law, we see the supervisory-diplomatic function that creates Closed, Open and Compromise Register Systems and Iranian ship registration is a closed one. Finally, suggestions have been made to reform the Iranian system and match it with the expected functions.

Anonymous Shell Companies as a tool for economic criming such as forgery, fraud, tax evasion, money laundering, terrorist financing, etc. have become widely developed in Iranian recent years and this has not only affects the country's judicial system;But also has led to disruptions in the country's tax system, the banking system, and the customs system. It has led to a decrease in public trust in the government,too. Undoubtedly, this emergence and expansion is due to the weakness of the system of observation, identification and supervision of all kinds of commercial companies and the Companies Registry System as the only organization that is specially related to the information of commercial companies can play a major role in dealing with the emergence of these companies. Therefore, this question can be raised that what problems in the Companies Registry System have caused the development of Anonymous Shell Companies and what solutions are there to solve these weaknesses.This research, with a descriptive-analytical method, based on desk researches and documentary studies, firstly identifies the concept and structure of Anonymous Shell Companies. Then the reasons for occurance and development of Anonymous Shell Companies have been investigated from the point of view of the Companies Registry System and after recognition of the registration system’s gaps in dealing with Anonymous Shell Companies, it provides solutions to solve the current problems.

The expansion of urbanization,raised raised the issue of housing and construction development as a necessity.In this regard, the legislator, by creating a contract called pre-sale of buildings, in addition to facilitating access to affordable housing, helped finance construction projects. However, the pre-sale contract is like a sapling that simply plants it without taking measures for its care and management, dries it up. the lack of a management-monitoring model in the building pre-sale process has been a serious issue in the pre seller-pre buyer relationship which has created many problems. Therefore, the question is how to achieve a legal mechanism for efficient management of the pre-sale process. To answer this question, this article, based on the method of desk research and referring to documents in collecting information, along with descriptive-analytical researching method, first of all, considered the issue of Payment supervision and arbitration in disputes as the most challenging issues in buyer-seller relations. And in the framework of the study of the role of the notary in the pre-sale process in foreign law and the opinions of experts in the field of the capacities of the notary system, has presented a model to answer this question based on the rationale of the agency issue in economics and using the theory of contracting project management centered on the role of the notary.

The Impact System of “Centralized and Dispersed Companies’ Registry systems” on the Provision of legal and Economic Security” AbstractInformation transparency in the context of Companies is regarded as a means of achieving economic security in both micro and macro dimensions. For this reason, the legal systems, considering the access to this information necessary, established the Companies’ Registry systems; However, these systems do not have the same approach in terms of information registry and And record this information in the form of two systems: Centralized or Dispersed system.In this study, we conclude from a comparative perspective based on the logic of Law & Economics that in order to realize economic security, a centralized registration system can provide more security in addition to lower cost and therefore can be recognized as a superior system within the framework of the efficient theory. Finally, some suggestions have been made to improve the dispersed registration system of Iranian companies.

Companies registration system as the only specialized entity in the field of companies information has the dual function on registering information. In the domain of identity information, provide an unchangeable certainty of corporate identity, is the aim of the system; while in the field of status information, establishment of information symmetry has been targeted by the system. Companies registration systems have not applied the same approach in achieving these goals, as they have created Monism and Dualism systems in the field of identity, and regarding the status information, the Intermediary and Interactionist systems have emerged. In this study, based on economic analysis, we concluded that, in order to achieve these goals, the Monism system in the field of identity information, and Intermediatory system in the context of status information, are the efficient systems. On the basis of this, suggestions have been made for the establishment of laws in the field of companies registration in Iran.

Lawsuits about real estate of Public universities are among the most frequent lawsuits in the Administrative Court of Justice. The existence of contradictory regulations that do not provide a single understanding of the nature of these real estates (private, public or government) is always the main reason for filing these lawsuits, which has also led to conflicting decisions in the Court.On the basis, two questions can be arised; First, Under which category of private, public or government property, is real estates of public universities in Iran regulated; And secondly, to what extent is the imagination of this nature for the mentioned property considered efficient in the financial management of the universities?In this study, relying on the statutes and decisions issued by the Court of Administrative Justice, based on the method of collecting library-documentary information and in the framework of descriptive-analytical research method, we concluded that In Iranian law, real estates possessed by public universities is organized under the legal regime of government property. Although this is an efficient nature in comparison with the public property regime,but in order to achieve the goals and policies of the universities, governmentalization of these properties is a major drawback which can not lead to the optimal function of the boards of trustees for the managment of property and development of the university.

The system of land property is a pluralistic system that is uniquely organized in each society based on the legal basis and necessity of that society. This pluralism can also be found to a large extent in land registration systems and the substantive effect of registration on the contractual transfer of immovable property. In such a way that some systems concentrate on creation effect of registration and others on opposability. The question, however, remains whether these different effects are due to the pluralism of the land property systems.On the other hand, Developments in the Iranian land registration system after 2016, which took place with the presentation of the Guardian Council's advisory opinion and the adoption of the Permanent Development Provisions Act, raised the question of the status of registration formalism in the contractual land transfer in Iran.In this study, based on the library studies and refer to legal documents method of collecting information and descriptive-analytical research method, with a comparative study of the three systems of England, Switzerland and France -as three model systems in the field of land property and registration– We concluded that the diversity of land registration systems is directly due to the diversity of countries' land property systems. In this regard, based on the two descriptions of absoluteness or exclusiveness, land property systems are divided into Property systems and Estate systems. In Property systems such as France, the land registration has an opposablility effect; While in Estate systems such as the England and Switzerland, registration has a creative effect.Accordingly, and within the framework of the ownership structure that has been established in the Iranian Land and Deeds Registration Act of 1931, land registration is still a title by registration system and developments after 2016 have only targeted the need to prepare notarial documents.

Land Registration as a system of consolidation of land ownership is always subject to errors that, if they lead to incorrect registration in the real estate registry, constitute Systemic Errors and can harm third parties. In England Land Registration act 2002 and its subsequent amendments, a special legal regime has been recognized to compensate for systematic errors; However, in Iranian law, even the liability itself is questionable. Based on this, the question arises as to what is the basis of the government's responsibility to compensate for the damages caused by systemic errors in land registration? And what is the legal regime governing this civil liability in the land registration system of England and Iran? This study with a descriptive-analytical approach has concluded that government responsibility in this area is based on the theory of guarantee in Tort Law. Also, in English law, the principle is to prevent the invalidity of the registered ownership, even if it is wrong and the injured parties of the mistake have the right to claim land price. While a review of Iranian law shows that the registered owner is not well supported in practice and the injured party of a systemic error can sue him directly.

Simultaneous claims of debts documented in the executory document are among the common cases in the Iranian judicial system, which are carried out by obligees with motives such as pressuring the debtor to perform the debt, speeding up the collection of claims, and etc. In this regard, sometimes the whole debt is demanded from two authorities simultaneously , and sometimes debt is divided into two parts, and each part is demanded from a authority. However,the legal status of this obligee’s measure in the Iranian legal system is unclear due to the existence of conflicting views in the dimensions of legislative, judicial and legal doctrines. Some have taken this measure as correct and others have ruled that the obligee has no authority to demand it simultaneously. Based on this, the question can be raised that in the Iranian legal system, what are the limits of the authorities of the obligee in claiming the obligations documented in the executory document? And in particular, what effect does the pursuit of the obligations contained in the executory document through a competent authority have on the possibility of pursuing simultaneously in another authority? This research with a descriptive-analytical method and based on documentary-library studies, has concluded that obligee’s measure in simultaneous claim is unjustifiable on the basis of legal theories and cannot be correct. Accordingly, due to lack of comprehensiveness and lack of explicit legislation, it has submitted proposals to amend the applicable regulations.

The companies’ registration system is considered as the beginning of the emergence of modern company law in legal systems and its evolution has a fundamental role in the evolution and development of this legal field. Western systems have realized this fundamental role, and for this reason, today the companies’ registration mechanism offers the most complete function to prove the identity and decelerate the status of the companies. However, in Iranian law, the companies’ registration system should be considered a failed system that contains baseless formalities and lacks the necessary efficiency. A subject that according to the unity and integration of the modern company law in the framework of the need for the same regulations in different legal systems, should be considered in the difference between the interpretations of the doctrine of company law in Iranian and Western law. Based on this, the question arises as to what is the relationship between the interpretations of the doctrine of company law in the West and the development of the registration system on the one hand and on the other hand the interpretations of the doctrine of corporate law in Iran and the weakness of the registration system. This research in the framework of library information collection method and descriptive-analytical research method, by proposing three theories of Formalism, The reality of legal personality and Company enterprise, provides interpretations of them in the Western and Iranian company law and seeks to prove a direct relationship between these interpretations and the type of realized system of companies registration - from the perspective of strength and weakness - in Western and Iranian legal systems. Finally, suggestions have been made to counter these interpretations within the framework of the rules and regulations in Iranian law.

Difference in the basic principles of legal systems and their different needs and gaps has led to the emergence of models of registration system of real estate that, while they are very similar, have fundamental differences and is raising the question that how it is possible to classify registration systems of real estate into legal families, such as the division of contemporary legal systems into multiple legal families. Answering to these questions plays a fundamental role in understanding the registration system of each country and the possibility of using its legal solutions to improve the Iranian registration system. This research, with a descriptive-analytical approach and based on comparative studies, has concluded that in order to classify registration systems of real estate, large components are needed first, which are considered as the basic pillars of registration systems. In this regard, the “registration pattern”, “effect of registration on transactions” and “access to the information” have been introduced as classification indicators. In the second place, based on the mentioned indicators, we divided the real estate registration systems into three families: "Will-oriented registration family", " appearance-oriented registration family " and " registration family based on maximum originality of appearance". Within the framework of this division, the Iranian system of registration of real estate bears similarities to the "appearance-oriented family" but it needs to be reformed in order to be part of that family.

“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.

Nowadays, Companies Registration in different legal systems are considered as a developed organization which besides undertaking the registration of the company as the final stage of establishment (administrative dimension), has the responsibility of providing information symmetry with the internal and external stakeholders (contractual dimension) at minimum cost. Historical studies, however, have shown that Companies Registration did not initially carry out this advanced mission; rather, it developed and expanded its functions over the time through an evolutionary process and step by step after economic failures, and finally, it has reached today's efficient system. Accordingly, legal systems have experienced, over time, three types of business registration information systems:a)administrative systems: After the failure of the Chartered Company system, multiple pressures by liberals, eventually, led to the liberalization of the establishment of the corporation, and by establishing companies registration organization in various legal systems, the founders were able to obtain a corporate registration certificate by providing identity information to the corporate registration system known as Reference Data. The mere founding role of business firms in the era of liberalism led to rising the Administrative systems of Companies Registration. b)Supportive systems: In the era of liberalism, always both internal stakeholders (small shareholders and employees of the company) and external stakeholders (creditors and individuals seeking economic interaction with the company) have very weak position compared with controllers (managers) in terms of information symmetry. After World failure of economic in1930 , in order to protect the interests of stakeholders, the Companies Registration developed its roles on the basis of gradual process, to expose and provide a greater scope of information that are known as "financial-economic information”. This greater role that supports stake holders provides Supportive systems of Companies Registration. c) Inexpensive systems: After the era of the "welfare state" in the age of "regulation," the discussion of "efficient interventions" of the government and the "cost reduction" arose. Thus, a system called the "Inexpensive system" emerged to reduce the contractual and administrative costs of collecting and accessing information. Ignorance of "developments of roles of companies registration organization " in the Iranian legal system, has led to lack of understanding of the reasons for the interference of this organization in each of the information domains and as a result, it has caused a weak situation in the system of registration of Iranian companies in terms of information provision, that in addition to failing to guarantee the establishment of a company, at the stage of entering into business contracts, it is unable to "reduce costs" and "create information symmetry" ,and for this reason, other Inter-organizational system that have a different function - such as the Codal system that is embedded for special information of stock market companies- have to bear the burden of this institution partly. The purpose of this paper, based on a comparative approach to the types of "Companies registration systems from the perspective of access to information" in the field of Continental Europe and Common Law and to analyze the legal foundations of corporate registration system evolution, is to show that, in the legal perspective, Iranian Companies Registration like other corporate registration systems, is in the process of saving access to information in quantity and quality dimension; however, the executive barriers do not permit the implementation of the intended legislator system. Accordingly, it has finally been suggested that, in order to resolve executive problems and build appropriate capacity for the implementation of the regulator intended system, it may be possible, under existing regulations, to define the functions and competencies of the corporate registration body in the form of executive actions such as by-laws or directives and guidelines.