جستجوی مقالات مرتبط با کلیدواژه « common law system » در نشریات گروه « فقه و حقوق »

Technology development has created a change in the nature of the documents, and today a new form of documents called electronic documents has emerged, plus the traditional system registration system has replaced electronic registration, which can have many works. This transformation is visible in various legal systems, including the civil law legal system and the common law legal system. Accordingly, in this article we will examine the terms and effects of electronic registration of documents and real estate in the Iranian, French, UK and US law system.

This article is written in an analytical-analytical method.

Although the document has a long history, it has evolved with the advancement of document registration technology and today there is a new form of registration called electronic registration. The use of new communication methods and new communication and information technologies for recording documents is called electronic document recording.The electronic registration of documents has some effects, including the validity of the contents of electronic documents, the validity of electronic evidence against individuals, the necessity of the execution of an electronic official document, its enforcement effect in judicial authorities and de-judgment. Registration of documents in the English legal system has a long history and electronic registration of documents has also taken a new form using blockchain technology. In English law, the principle is that all immovable properties can be registered by private individuals, unless these properties belong to the Queen or are considered public properties like national parks, mountains, forests, etc. If a property is not registered in England, but is sold, or comes to the owner through a gift or will, or the owner mortgages it, in this case, the property must be first registered, and to prove the applicant's ownership, documents such as a purchase deed must be submitted. The property should be presented. In this system, as in Iran's legal system, in case of presenting a claim contrary to the presentation of a normal document, what is important is the record of the document's registration, and contrary claims cannot be made. In Iran, the electronic registration and filing of documents has been established since 2005, and in the United States, since 2017, the electronic registration system of transaction documents in the United States has evolved with the emergence of smart contracts.

According to thin skull rule in common law accused must take his victim as he finds him. This accepted by Iran and common law legal system with respect to child, old and who suffers from physical and mental disorder so that their weakness is considered in the imputation of bodily harms to accused. It means that accused must consider his victim’s voluntarily and involuntarily reaction. This rule is accepted just about by two law systems in the scope of automatic physical act and psychological reactions of victim and even on the ground of necessity or duress. But in the case of the victim’s unreasonable voluntarily reactions resulted from his or her belief, the rule has been accepted in Blaue1975, nevertheless it was subsequently interpreted differently by lawyers. In Iran law according to Islamic jurisprudence and positive law the imputation of the result to the accused in this situation is doubtful and can not be accepted.

In order to reach any legal agreement and conclusion of a treaty between two or more governments, it is necessary to be familiar with the Laws of the country or countries that have agreed and identify points that can be disputed by each of them and provide a solution for them. In order to reach such an agreement, the Laws of the interested countries must be applied and a consensus must be reached. Obviously, in order to achieve the worldwide universal law desired by Professor Sali, such an adaptation needs to be made at the level of well-known legal systems and studied from any country system. In this article, the United States of America from the common law legal system and the Islamic Republic of Iran from the religious legal system are considered. Fundamental values can be the key to achieving worldwide universal Laws, so some of the fundamental values enshrined in the constitutions of the two countries were examined. In this article, using descriptive-analytical research method and information gathering method in the form of a library, the question of what are the fundamental values in the constitutions of Iran and the United States has been answered. After examining the nature of each of the fundamental values, we will see which legal system is more convergent and compatible with the public will.

Moral right is one of granted rights to author in literary and artistic property law. Unlike economic right which considers protection of financial and economic aspects of author's rights, the function of moral right is to protect author's Character creativity, immaterial aspects and social interests. Despite the attention of countries following copyright system to economic right and having utilitarian approach, necessities such as internal and international (like the results of accession to Berne Convention) requirements, compelled these countries including UK and US to accept moral right. However, this right in these countries has less important situation, more limited instances and time protection rather than countries following author's right system: for example, waiver of moral right in UK has been accepted extensively and the rights such as right of attribution and right of integrity are not applied about some works. Moral rights in Canada are limited into two rights of attribution and integrity and waiver of this right is allowed generally or partially. Australia has the most comprehensive statute on moral right, infringement and remedies about that. This research examines the causes of accepting moral right in copyright system through comparative study on some of countries following this system.

Preliminary agreement means an agreement that result from preliminary negotiations process for obtaining the ground of final and main contract conclusion. These preliminary agreements treat as steps towards achievement to the final contract and these preliminary agreements have different names and different forms. In respect of legal analysis, we are encounter with this question: whether preliminary agreements are enforceable or not. In litigations happening around enforceability of preliminary agreements, similar judicial precedent did not exist in legal systems. In England law general approach is that preliminary agreements are not enforceable while U.S.A law trend to enforceability of them. In civil law countries preliminary agreements are enforceable. In Iran legal system if a preliminary agreement have all of essential terms expressed in article 10 of the Iran civil code and this agreement be considered an example of that article or be conditioned with irrevocable contract, will be enforceable. Otherwise such agreement considered as an independent condition that jurisprudently is not enforceable. American courts i pay attention to many factors as express statement, partial performance; open terms, typically written contracts and field of negotiations. Practicing these factors in Iran courts can be useful for clearing the ambiguities of Iran contract legal system.

Among the most important principles governing recovery of damages in Common law systems is that damages are compensatory. The principle applies in the field of the law of contracts as well as the law of torts. By the principle it is meant that damages are paid to compensate the injured party for losses sustained and not to punish the wrongdoer or depriving him from gains acquired by the breach. It has several functions like determining the kind of recoverable damages and limiting them. The latter function has some effects which include: plaintiff must suffer damage; damages are based on the loss of plaintiff and not on the gain of the defendant; damages must not exceeds the loss and damages are not punitive. The principle has faced several challenges but none of them could call into question its validity.After an inquiry into this principle and its functions and effects in common Law system, this article offers a brief study about it in Iranian law. The study shows this principle has not been recognized under the same topic, it could be inferred from various rules and other principles regarding civil liability.

Intellectual rights are granted to the author under the literary and artistic property rights whereby the authors can claim the authorship of the work, protect the integrity, and prevent any distortion or modification of the work. Contrary to material rights that support the financial interest of the author, intellectual rights support the character of the author. It is believed that intellectual rights were introduced in countries that confirmed the copyright system such as France and Germany. Historical antecedents, however, prove the opposite assumption. The intellectual right was discussed for the first time in the second half of the 18th century within the investigation of two important cases in Britain where this right was recognized as the origin of the copyright system. The copyright approach to intellectual property rights has resulted from the historical, cultural, incentive, and utilitarianism factors. This approach differs from the author’s rights system. Countries that follow the copyright system used to support the intellectual rights of the author by using some methods such as mutilation or defamation relying on the contract provisions before joining the Berne Convention. These countries are still using the same methods in courts to support intellectual rights according to Article 6 of the Berne Convention after joining it. This study was conducted to investigate the background and basis of intellectual property rights under the copyright system. Besides, this paper examines factors affecting the copyright approach and methods to protect the intellectual rights of the author.