نشریه حقوق تطبیقی (نامه مفید)
سال هفتم شماره 2 (پیاپی 14، پاییز و زمستان 1399)

Succession of states in respect of international responsibility is considered as a consequence of succession, which is referring to obligations arising from the commission of internationally wrongful acts. In traditional thoughts, non-succession to such obligations has been recognized as a rule that its strict and functional result is the lack of  responsibility for successor state. Comparative study of subsidiary sources of international law (legal doctrines and judicial decisions) as the means for the determination of main sources, the present paper figured out its conceptual evolution, during the ages and showed that modern thoughts against the classic one has been raised and that is the rule of succession to such obligations. The classic attitude is barsed on the “reality” and the other is affected by the “truth”, more. Facing the mentioned thesis and anti-thesis, this paper considers the synthesize makes it possible to avoid any disadvantages; The sober attitude far away from absoluteness and entireness.

Compensation for the Accused and convicted whose innocence is proven by obvious consequent factors is one of the challenging issues in private and criminal law. In the past few years, Iranian legal system has experienced positive changes in the compensation of acquitted accused but until now, no coherent mechanism is foreseen to those who have endured part or all of the sentence and their innocence has been proven. This is contrariwise in the Canadian legal system and only innocent convicts who have served part of the wrongful sentence are deserving to compensation. Rational logic and justice along by the general rules of civil liability and the text of the United Nations International Convention of Civil and Political Rights demonstrate that compensation of two above mentioned damages in all legal systems are necessary. In this research, while investigating the international binding rules governing the subject, we try to provide an integrative theory included of eliminating deficiencies, changing extant rules, and legislation by a comparative study on legal systems of Iran and Canada to more realize the fairness and justice.

If the object of sale is belonged to someone else, an ignorant customer can refer to the seller for the restitution of the price and indemnities which the civil law has discussed as guarantee of compensation.Being the coercive or contractual of responsibility which arises from the guarantee of compensation is challengeable in legal systems.In some articles of the Iranian Civil Code, including Article 362, the guarantee of compensation is considered as one of the effects of a valid contract, and in some articles, such as Article 391, the responsibility arising from the guarantee of compensation is considered coercive.The comparative study of the basis of guarantee of compensation in Iranian and French law confirms that this difference in approach is due to the fact that in the formulation of civil code, on the one hand, French law has been adapted and on the other hand, the view of Imami jurists has been considered.However, it will be proved that the responsibility arising from the default in ownership is the coercive responsibility rather than the contractual, which will affect the court proceedings, including that the claim for restitution of the price and indemnities arising from the default in ownership Will be considered as a financial and personal dispute and the competent court in this lawsuit will be the court of residence.

Nuclear smuggling has emerged, as a new manifestation of smuggling, with the discovery and operation of nuclear energy in the life of human society. The issue of controlling the import and export of nuclear material and devices that have been considered by international instruments, including the Convention on the Protection of the Physical Protection of Nuclear Material. This matter has led some governments to criminalize the illegal smuggling of materials, devices, and nuclear science separately. On this path, Canada, as one of the countries that exploit nuclear technology, has adopted a cynical approach in the area of criminality and the designation of a criminal sanction against nuclear smuggling. On the other hand, the activists of Iran's criminal system, by introducing a law on the smuggling of weapons, ammunition, and weapons and ammunition holders, have described the case of nuclear smuggling, namely the trafficking of radioactive materials as criminal offenses. Nevertheless, in order to have an up-to-date and dynamic criminal policy against the aforementioned behavior, it is necessary to compare national penal provisions to Canadian laws that have a comprehensive view of the various manifestations of nuclear trafficking and threats of committing it. Eventually, appropriate criminal punishment for dealing with nuclear smuggling will be outlined.

Is it possible to imitate other personality features? The answer to this question, in the hypothesis that the personality features are distinct and well-known to the public, is positive in the legal systems studied. With the difference that in the American legal system, a special right is known in the name of LIKENESS, so that the person himself decides about imitation of his qualities. In the British legal system, according to the PASSING OFF Foundation, imitation is prohibited when it deceives consumers. In German and French systems, the imitation of a person's personality features is also prohibited by reference to the rights of the person. In the legal system of Iran, it seems that according to the general rules of civil liability, and the rule of Unjust enrichment, prohibition of the imitation of a person's personality features is inferred. In the case of imitation without permission, the damages (Both material and mental) must be compensated.

Motelahemeh third of the face and head injuries (Shjaj) It results in number. The legal sources for the different injury definitions are provided. Although many of these definitions, units are similar in content and differ only in some interpretations, But reflecting on the different interpretations in the works that can be applied to provide a precise definition of the species in general and Motelahemeh Shjaj in particular, is essential Which should be without any negligence by paying attention to the provisions of the terms and expressions taken. In this regard, and to provide a precise definition, stable and efficient than Motelahemeh, referring to the quality of legislation (The quality of law) as established progressive for close examination of the nature, origin and shape legislation, can be very helpful and leads to quality the legal definition of the injury. In this article, referring to the sources of Islamic law with regard to the quality of legislation, a cross - different definitions provided by Motelahemeh in law and penal code criticized fall and thereby, in addition to recognition of elements essential Motelahemeh, and precise scientific definition it delivers.

The New York convention about recognition and enforcement of foreign arbitration awards yet accepted by 156 countries and prepared the huge network all around world for enforcement of arbitration awards. Nevertheless, the unique status of it in sphere of international commercial awards, the convention simultaneously with technologies development don’t updated and how utilization of it for enforcement of online arbitration awards caused the legal challenges. however, in national level, the most countries, take validation to electronic documents and recognize the arbitration according to electronic transactions but ulterior to it in international sphere and when the debate of enforcement of such arbitration poses in other countries base on New York convention, the matter has no clear legal status. The present article we study the mentioned matter that enforcement of electronic arbitration awards in framework of New York convention encountered with legal challenges. With study the trend of New York convention and other codes of countries namely. The code of commercial electronic, this article come to this result that notwithstanding to immense challenges, with some facilities, there is the possibility of recognition and enforcement of electronic arbitration awards in framework of New York convention.

Inside delayed payment damages institution there are two categories of detriments; Detriment of inflation and loss of money profits. The study of the laws of other countries shows that most countries pay attention to both types of losses. But in the examined systems, detriment of inflation is not independently recognized, but under a single system of interest loss, both detriments are compensated. In our country legal system, according to Article 522 of the Civil Procedure Law, the concept of detriment in delayed payment damages is based on the money inflation detriment, and the loss of money profits isn’t recognized other than exceptional cases such as Riba-free Banking. Delayed damages based on inflation is not only a obstacle in breaching a contract but also acts as encouraging factor. Whereas delayed damages based on average bank profit assists to protect the contracts and increases the cost of breach so that the debtor prefers to pay the debt on time and avoid paying the latter loss. In this research, while analyzing the relationship between the two losses with the delayed payment damages, the moment of the interference of these losses is considered. In this regard, the time of the breach of obligation, the time of the demand and the time of the proceedings and the issuance of judgement has been expressed for the initial stage of the calculation of losses. Some legal systems apply only one of these sections, while others allow the court to choose on case issues, quality of damages and compensation, in order to reach a better compensation.

In western Law, especially in French, subrogation has been established for justifying the survival of debt and contract after the death of one of the parties. In other word, when one of the parties to a contract dies, the heir becomes successor of the decedent in both properties and debt. So, in addition to the decedent’s property, his debt is transferred to the heir. Although in Iranian Law the term successor has been used in Civil Law, but there is no a text about its concept and sentences. Legal doctrine influenced by French Civil Law, has accepted it and has analyzed its sentences on this base. But it seems that the principles of this term do not exist in Iranian and Islamic Legal system as it is in the Western Law. This article attempts to analyze the concept and principles of Subrogation in Iranian and French Law through a comparative study.

One of the most important concerns of governments in managing of public affairs and even overseeing the private sector is corruption, especially administrative and financial corruption. In this way they have incurred a lot of costs. One of the ways to fight corruption is to use social capacities, including participation of citizens and employees, through discoursing that are envisaged in most countries. This approach not only reduces the need to employing employee, structures and therefore costs, but also increases public confidence to the government and strengthens citizens' sense of responsibility, and also, due to its large population and dispersion throughout the country, if implemented properly, it can be more comprehensive than other anti-corruption tools. And if not done properly, it can be just as dangerous. Given the above, what are the characteristics of a good disclosure system? In this research, an attempt has been made to extract the principles and rules that can lead to the establishment of a favorable disclosure system by descriptive and qualitative methods using the experiences of other countries.

One of the very important concerns in the aspect of blood money is occurrence of crime in one of the forbidden Islamic (Hijri) months (Rajab, Moharam, Zi-Qadeh, Zi-Hajjeh). According to Article 555 of Islamic Punishment Law (ratified 2013), the offender is condemned to pay one third of blood money, as aggravation, in addition to paying the full rate of blood money. Since the sentence for reverence of forbidden months is expressed in Koran, but there is nothing stated about the aggravation of blood money, this sentence and condemnation is confirmed by most of the Shiite jurisprudents. The reasons of Shiite jurisprudents mainly refer to the narratives in this regard, consensus and sometimes prudence. It can be concluded, by going through the narratives, that some reasons are explicitly and some others implicitly are controversial. What is used in reliable narratives is the necessity of aggravation for murders and intentional crimes. However, referring it to unintentional or absolute offences is difficult. It can be stated that aggravation of blood money is principally considered for unintentional homicides and offences.

In the Islamic Penal Code of 1392, in correct expressions and in accordance with various principles of the Constitution, the principle of legality of crime and punishment, in general, has been accepted and in addition, the full validity of this principle has been emphasized in Taazitat, Qisas and Diyat. Despite this, it seems that the legislator has denied the principle of legality within the Hodud and, according to some principles of the Constitution, has tried to issue a license to refer to jurisprudence regarding the Hodud not mentioned in the  penal law. Despite this, it should be noted that in Islamic jurisprudence, there is a great deal of disagreement about the number of Hodud and their rules and conditions, which in practice both confuses the judge in referring to jurisprudence and causes problems for citizens. In this article, with a brief look at the limitation of behaviors in the words of jurists, we seek to prove that first of all, citing Article 220 of the Islamic Penal Code to Article 167 of the Constitution to justify the permission to refer to jurisprudence in criminalizing illegal behavior is wrong and unprincipled. It is explicit of the constitution, and secondly, if we consider article 220 in the sense of the permission to refer to the applicable jurisprudence, we must suffice with a certain degree of consensus behavior. The author believes that Article 220 is against the principles of the Constitution and should be abrogated.