مجله تحقیقات حقوقی
پیاپی 92 (زمستان 1399)

Feasibility study is an assessment of a proposed project to determine whether it is technically possible to be carried out, with the estimated cost, time and expected profitability. It’s necessary for all projects in which a large amount of sums is at stake. In other words, Feasibility studies are fundamental steps for defining the aims and illustrating the path for initiation of any project. This process will not be reachable without defining indicators for measuring success, evaluating results, and identifying the responsibilities and liabilities of each party. It is acknowledged that the general criteria of “Sustainable Development” are the required elements to give a permission to implement any project. In fact, the old approaches aren’t capable of solving the new problems. A new and comprehensive assessment for sustainability is needed in feasibility studies. To make a dissension as to the feasibility, it is vital to have especial references to, environmental, economic and social aspects. For accomplishing this goal, a legal backing is of utmost importance. At the moment the duty and responsibility of each party during the Feasibility studies process are not clear. This paper introduces new approaches for conducting project feasibility study by embracing the principles of sustainable development. In addition, it suggests different ways to mitigate damages with consideration of sustainable development from a legal point of view.

The increase in the strength of different enterprises due to economic developments in recent decades, has eliminated the equality in the bargaining power of the contracting parties specially in relationship between the bank and consumers, let alone consumer credit in our discussion, hence it caused an imbalance which is implied that the absolute reliance on the principle of contractual freedom and The Autonomy of Will or in other words in a manner that is strictly limited to the traditional rules of classical contract law does not necessarily entail Commutative justice in such contracts. in particular these contracts based on Article 23 of the Law on the Continued Improvement of the Business Environment are pre-prepared and offered to consumer without the possibility of altering. Thereupon to protect the "weaker party" along with using some common law doctrine such as "undue unfluence" and "unfairness doctrine" in order to cancel the contract or alter the contractual terms, which already there are some indications of utilization of those principles in our legal and regulatory system, The legislator can, by amending article 23 of the above mentioned law, prepare a flexible contractual situation for consumers in comparison with other banking customers, as the case may be.

The issue of children's health, as the richest social capital of the present age, is considered very important. The right to health, as one of the human rights, has various dimensions, including mental health, which means benefiting from positive personality-behavioral characteristics and the absence of mental and psychological problems. Juvenile delinquents also have this right as one of the most vulnerable human groups, and the differential criminal justice system, which aims to rehabilitate this group, is bound to pay attention to it. In fact, since the foundation of this system's support and treatment programs is based on identifying risk factors and implementing supportive measures, identifying the mental and psychological problems of delinquent children and then measures to reduce their effects are included in this section. In addition, paying attention to the right to mental health based on human rights strategy is considered essential in the context of juvenile delinquency; also, paying attention to the mental health of children and adolescents is one of the main axes of differentiation of this system and predicting the structure, actors and supportive responses. In other words, the juvenile criminal justice system has the capacity to recognize the right to mental health of this group. The employment of trained actors, the presence of a counselor in the response process, the right to file a personality case, the individualization of the responses, and the presence of the family at the response stage are examples of existing capacities

The Dispute Resolution Councils are judicial references that are made for reconciliation between the parties. But in some cases this reference will issue a warrant that these cases are rises in new act of the Dispute Resolution Councils. However Dispute Resolution Councils don’t have much competence about criminal subjects, but Damage Caused by Crime is a civil subject that just its source is arisen from crime. In fact, this claims are civil and are in competence of civil courts. According to Dispute Resolution Councils act, in reconciliation matter, since this councils have competence in all criminal and civil claims, so Claims for Damage Caused by Crime are located in this subset and councils can reconcile all of claims for damage caused by crime. But about execution of a warrant for compensation caused by crime must refer to general rules of Dispute Resolution Councils, with concept that issuing a warrant needs adherence to specific procedures that should be considered according to the new act.

One of the most common criteria for the computation of damages in patent infringement litigations in U.S.A Case Law is reasonable royalty. This is because that, it is not possible to properly estimate the lost profits in patent infringement in many cases, and therefore, damage is awarded by calculating reasonable royalty. In U.S.A law, different approaches are applied by courts to determine reasonable royalty-based damages, but the most prominent one has been put forward in Georgia-Pacific Corp. v. U. S. Plywood Corp, which includes 15 factors for determining reasonable royalty-based damages. It has been said that the case law suggested criterion, is a "universally accepted test" for determining reasonable royalty-based damages. While examining this criterion and the place of reasonable royalty in U.S.A law, this study shows that invoking the quantum merit in Iranian patent law could not be a proper method for loss computation. This is for a number of reasons, including statutory prohibition on the application of the quantum merit in compensation for patent infringement, being of patent right as intangible property and confidentiality of the amount of royalty in licenses. Therefore, due to the inconsistency of this Criterion with Iranian legal standards and given the lack of explicit or implicit legal prohibition on using of reasonable royalty as computation method, employing this method by the courts is suggested. To solve the legal ambiguity, it is also suggested that the Iranian legislature introduce reasonable royalty as a criterion for the computation of damages in patent infringement litigations.

Tortfeasors are entitled to defend themselves against liability claims. In the United States tort system, in addition to general defenses, common law rules have recognized special affirmative defenses for tortfeasors based upon plaintiff's carelessness that has contributed to the injury. The two defenses at study in this article are contributory negligence and comparative fault. In this article, we introduce the defense within a new structure that is compatible with the Iranian legal system. This article contributes to the academic tort law literature in Iran by proposing the recognition of such a rubric in the Iranian tort system. In a comprehensive compative study, it further explain how we can incorporate comparative fault defense in Iran’s legal system. The proposed structure is theoretically applicable to Iran’s civil responsibility schemes, and practically beneficial for lawyers and advocates. We will also study the development and changes of the two doctrines in the U.S. and the influence of workers’ compensation law in their development.

The impossibility of the contract is a legal fact, which means the impossibility of performance and it causes many consequences concerning the termination of contracts in Iran’s legal system. The impossibility in considering its instants divides to real and legal impossibility. The real impossibility is a situation in which contract physically cannot be forced to perform by promisor or by promisor expense. The meaning of legal impossibility also is a situation in which contract cannot be forced to perform because of the operation a law. The theory summarizes that an identical logic exists in many rules like articles 527, 551, 683, 240, 387 of Civil Code. That logic requires that partial or total impossibility of contract justify unilateral or automatic termination case by case. Knowing about this logic firstly empowers jurists to infer the ruling of situations in them laws don’t express about the termination of a contract or its consequences and secondly empowers them to choose an interpretation between plenty of interpretation by the general theory of impossibility.

The Iran-United States claims Tribunal as an international ad hoc arbitration institution has attempted to resort to the equitable devices for applying justice and equity in its awards. The devices via which be able to issue an award for the claims that no contractual basis exist and also for the real ownership claims. The devices that cause to increase the motivation of the Iran-United States Claims Tribunal for pursuing the principles and rules of international law and the enforcement of the issued awards.This article is intended to develop and extend the practice and function of the Court in applying the equitable devices such as the principle of unjust enrichment ,principle of quantum meruit and beneficial ownership among the devices applied by the Court and will review whether the Court basically has been enjoyed the power and authority to accept such devices in its issued awards.

Lawyers disagree about application of the Rome I to bill of lading .Under English Law, the law applicable is determined according to common law rules in case bills of lading are excluded from the Rome I.Both the Rome I and common law rules recognize the principle of freedom of parties.However, the principle of freedom of parties is restricted under the Hague-Visby Rules and the parties' choice of law could not lessen the liability of the carrier from what provided under the Hague-Visby.Under Iranian Law, the law of the place of conclusion of contract applies to the bills of lading unless the contracting parties are foreign nationals and have subjected their contract to another law.Nevertheless,, considering the restrictions upon the application of foreign law, in accordance with Hague rules to which Iran is a party, parties to a bill of lading issued in a contracting state cannot agree on application of law of other countries which would lessen the liability of carrier from what provided under the Hague Rules.
Bill of lading might contain an incorporation clause which incorporates charterparty clauses into bill of lading.Under English Law, the law applicable to the choice of law clause incorporated into bills of lading by reference is the law that is applicable in case of validity of incorporation clause.In Iranian legal system, there is no conflict of laws rule regarding the applicable law to the choice of law clause and courts in each case will seek to discover parties' true intentions.

In the Islamic penal system, Islamic penalties refer to punishments that specify the type, amount, cause and quality of their execution in the Shari'ah, and include punishments, qisas, diat and ta'zir.
Among the controversial issues in the scholarly circles that have been mocked by the great religious authorities is whether, in spite of the legality of the religious minorities' blood money, it is practically possible to change the amount of blood money according to a particular state ruling. Religious minorities?
The results of this descriptive-analytical study indicate that religiously the amount of religious minorities can be changed according to the state order. In this way, although the primary requirement is non-approval of a government order, it is possible and provable to issue a government decree if it is in compliance with the objectives and purposes of the Shari'a, the prominence of the important, the certainty and respect of the public interest. The Islamic ruler has the power to change the amount of blood money for religious minorities

Nowadays, it would be against good-practice for a company to go-about conducting upstream oil-and-gas operations without finding a suitable partner. This association may come-into being under the form of either an equity or a contractual joint-venture, while the latter does not lead to the creation of a separate legal-personality. As-far-as recognition-and-acceptance are concerned, equity joint-ventures are expressly provided-for in Iranian-law; and such joint-ventures may come-under “legally-existing companies” (as per article 20 of the Commercial-Code). However, the more common practice-and-trend in upstream oil-and-gas operations is not to establish a new-company and enter-into contractual joint-ventures, in which the horizontal-relationship between partners would be governed by a joint-operating-agreement. It is true to say that it is challenging to accept contractual joint-ventures and joint-operating-agreements in Iran, due to the lack of express-provisions of law and major disparities in the opinions expressed in Islamic-jurisprudence (which forms the basis of the current legal-system). This article will attempt to analyze such joint-ventures in the context of recognized contracts and in light of social-necessities. For this purpose, de-facto corporations and civil-partnerships are first discussed in order to subsequently determine whether contractual joint-ventures and joint-operating-agreements qualify as such; and if yes, whether they are legitimate-and-valid. In spite of the many similarities between such joint-ventures and de-facto corporations, the conclusion is drawn that this comparison is not very solid. Such joint-ventures may, however, legitimately come under the broad definition of civil-partnership, that is to say, despite most Islamic-(Shiite)-jurists being of the opinion that all civil-partnerships (save from joint-ownership) are invalid-and-void.

The Code of Criminal Procedure is a set of duties, powers and rights of the accused, the victim and the community. In this case, the defendant's right to defense arises, which begins with the discovery of the crime and ends with the execution of the sentence, with issues and principles such as blaming, prohibiting arrest, prohibiting torture, separating the prosecuting officer from investigations, facilitating and expediting research and understanding The charge, the right to silence, the use of a lawyer's services, which is a fair trial, and, in the absence of one of them, will not have the meaning of justice, and it is equally true that the rights of the accused are the basis of democracy and the difference between them and the privilege of the developed and developing countries.
Investigating and investigating the status of this right can represent the threshold of tolerance, rationality and the rule of lawmakers and its conformity with the constitution, scientific and humanitarian doctrines and internationally recognized documents, and by identifying obstacles and eliminating them, a more favorable context for promotion. The right to defense.

The eradication of inequality and availability of criminal justice, regardless of gender, have enabled women to access criminal justice and paved the way for social justice. In postmodern feminist criminology, what prevents women from accessing criminaljustice stems from patriarchal power, discourse, and subjectivity, which control the language systems within the criminal justice system and create a sense of inequality before the law. The main research question is how patriarchal power, discourse, and subjectivity affect women's access to criminal justice in view of postmodern feminist criminology. In other words, the triangle of power, discourse, and subjectivity, despite reformation of discriminatory laws against women, vaguely contribute to the continuation of gender inequality. And, the factors that affect the gap between existing laws and their actual enforcement (law-in-action and law-on-the-books) lead to discrimination against women.This study, using on content, discourse, document analysis, and secondary research. There are inequalities discriminating against women in the criminal justice system's processes of enactment and legislation, adjudication, and punishment and enforcement. Postmodern feminist criminologists argue that the main reason is the masculine discourse that prevents women from equal access to justice. The way to deal with this situation is to introduce a feminine discourse against the dominant discourse, instead of eliminating women's worldview.

Nowadays, the party autonomy principle is respected in the international private law both in national laws and related international conventions. The authenticity and validity of jurisdiction’s agreements or choice of a court’s agreements in many legal systems are one of the party autonomy principle’s results. Although there is no doubt that the jurisdiction’s agreement must consider general requirements for making the contract, there is an important challenge to a connection between the chosen court and the dispute. In other words, there is an important question: is the connection between the chosen court and the dispute necessary to validate the jurisdiction’s agreement or choice of court’s agreement? This essay with descriptive-analytical and comparative methods and considering the national laws and related international instruments declares that it is not necessary to show the connection between the chosen court and the dispute. This approach has been accepted universally and also has been followed by Iranian lawmakers.

One of the changes in French law, due to the revision of the Civil Code in 2016, is the issue of "transfer of ownership" and "risk transfer" in the two assumptions of "contradictory transactions" and "non-contradictory transactions" that the legislator has referred to it under the title the transitional effect of the Contract. Although the French legislator in the new Code confirmed the principles of "being satisfied" and "urgent," about the ownership transfer, and accepted the principles of "the simultaneous transfer of ownership" and "being responsible for debtor" about transfer of risk , but at the same time, he has tried to accept new legal institutions , such as the possibility of delay in the transfer of ownership, using the doctrine and judicial procedures, and overcome the impediments to previous legal institutions. In the present paper, through a descriptive-analytical method and relying on library resources, in addition to studying and evaluating the article of civil Code passed by France in 1804 and 2016 on the subject of the transitional effect of the contract, compare the rules governing them with Iranian law.

On July 2017, as a result of a humanitarian discourse the Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted by the UNGA Conference to ensure that nuclear weapons are never used again and are completely eliminated. Many States and NGOs supported this initiative and some others including the Nuclear States heavily criticized it because in their view the TPNW could undermine the legitimacy of nuclear deterrence and the strategic stability established by the NPT. The TPNW, with reference to general principles of IHL and IHRL includes a comprehensive set of prohibitions on participating in any nuclear weapon activities. These include undertakings not to use or threaten to use nuclear weapons.
This article, while reviewing the contents of the TPNW, will discuss the impacts of the new treaty on international law of nuclear weapons.
The TPNW, with reference to general principles of IHL and IHRL includes a comprehensive set of prohibitions on participating in any nuclear weapon activities. These include undertakings not to use or threaten to use nuclear weapons.
This article, while reviewing the contents of the TPNW, will discuss the impacts of the new treaty on international law of nuclear weapons.