نشریه پژوهش های حقوق تطبیقی
سال بیست و چهارم شماره 3 (پیاپی 109، پاییز 1399)

The impact of capital creation on the realization of economic growth and the decisive role of bankschr('39') credits in capital creation makes it more necessary than ever to legal support for the process of obtaining credit and taking preventive measures to disrupt in this process. A comparative study of "competitive banking" and "information transparency" as the most important measures to prevent the disruption of banks credit in the criminal policy of Iran and the European Union shows that despite the reflection of these measures in various EU laws and treaties and their support at different levels. Iranchr('39')s criminal policy has adopted incomplete strategies and lacking of executive guaranty in this regard. Lack of legal mechanism to make banking competitive in order to facilitate credit collection, insufficient powers of regulatory bodies, lack of the right of persons to access government information in the constitution, lack of deterrent executive guaranty against violation of this right, dispersion in the rules of validation of applicants for bank loans and lack of transparency in the accreditation process are the most important examples of deficiency in preventive measures against detrimental practices of obtaining bank credits in Iranchr('39')s criminal policy in accordance with the measures adopted by the European Union and require legal and procedural reforms in this regard.

With the advancement of technology and the provision of various goods and services, one of the issues that make people want to buy a product is after-sales service. The main question that this article seeks to address is the nature of the after-sales service commitment and how it differs from other similar entities. In this article, this issue has been studied in a descriptive and analytical manner with the help of library tools and it has been determined from the available data that after-sales service is in a different nature from warranty and guarantee. Creating a commitment to after-sales service is conceivable by inserting an action condition or on the basis of a predetermined condition, in this situation, the condition is against the obligee and the right of obligation is created for the conditional. If after-sales service is included as an action condition in the contract of sale, sometimes the manufacturer entrusts the provision of services to third parties by concluding a subcontract that is subject to the contract of sale. An after-sales service commitment may be made through a contract independent of the original contract, so it requires the basic terms of the contracts. On the other hand, the obligation to provide after-sales service in capital goods may have legal roots, and in this case it is part of the mandatory rules, so agreements contrary to these rules are invalid and ineffective. Some consider the nature of this contract as a service contract and some as a contracting contract, in fact, the root of both contracts is the lease of individuals.

As companies are abstract, the negotiable instruments of the company are signed by real persons.The extent of authority and liability of directors in signing such documents, not only theoretically but also practically, will have significant effects on the business relationships of the company and the third parties. English law considers the directors of the company as the organs of the company and gives them wide authority.If the director signs negotiable instruments beyond his authority or even outside the company’s frameworks and responsibilities, it is presumed that the company itself has signed it. However, this does not prevent the company from penalizing the director. Iranian law, in relation to the limits of the directorchr('39')s liability, differentiates the company limited by shares from other companies. Due to the wide range of authority that the directors in ‘the company limited by shares’ possess, generally the signing of the negotiable instruments by them leads to the liability of the company limited by shares. In other companies, the authority of the directors is limited to the authority delegated by the company.If the directors sign the negotiable instruments beyond their authority, the company will not be liable for the negotiable instruments and the third party should be directly addressed to the directors, for compensation. In the case of cheque, due to certain provisions in Article 19 of the Law of drawing cheque, if the director board of the company is issued within the limits of the authority, he has joint and several liability with the company.

In the field of private international law, one of the most important issues in litigation is the determination of the law governing the evidence of a lawsuit. At first glance, it may seem that the issues of proof are closely related to the realm of formal law As a result, it is subject to the conflict resolution rule mentioned in Article 971 of the Civil Code, which is based on the principle of independence and national sovereignty of countries and is exclusively governed by the formal law of the seat of the court. However, the rules related to the evidence of litigation have a dual nature (both formal and substantive) and have an obligatory and optional nature. As a result, the law governing them will be different. The purpose of this article is to examine the determination of the law governing the evidence of international claims. In describing the nature of the rules of evidence, courts should consider whether the application of a rule of evidence affects their substantive decision or the regulation of litigation. If the said rule is described as substantive, it is subject to the foreign law governing the subject matter of the dispute, Unless, the subject matter of the dispute is related to the public order of the court. In this case, the law of the seat of the court takes precedence over the application of foreign law. The principle of freedom of will of the parties is to some extent effective in determining the law governing the substantive rules of evidence.

Management of copyright law of cinematic works needs to a process that film makers produce works with the comfort. Because the risks of unauthorized uses increased by internet development and electronic technologies. pattern of collective management organizations that implemented in countries with cinema industry for many years can be studied to provide the field of managing film makers rights in the best way by getting their experiences. In addition, with the adoption of the bill on copyright law, establishment of these organizations will be on the agenda. Then, structure, nature, process of doing work, duties and licenses issued by collective management organizations need to a study. Current article with descriptive-analytical approach attempts to study that what is the nature of collective management organizations for cinematic works and what mechanisms are adopted in them for management of rights? What matters in this research is the use of experiences of countries with cinema industry such as United States, England, France and India that forms the main focus of the study. Finally, the article concludes that cinematic collective management organizations have legal diversity with regard to development of cinema industry in the above countries and the differences in their legal structure but cinematic general organization model can be suggested for Iran to issue licenses for cinematic works.

Doubts and disagreements over the nature of the liability arising from delay in execution of monetary obligations have led to disagreements between the authors in accepting it. The extra contractual nature of this liability is similar to usury and interest, while its contractual nature is merely a requirement to fulfill a full obligation and does not contradict the public policy rules (such as the prohibition of usury and interest). Liability arising from delay in execution of monetary obligations is stipulated in article 522 of Iranian civil procedure Law and article 1231-6 of French civil Law (2016). Although both regulations express that, in cases of debtor delay to execution of monetary obligation, he is required to pay an additional amount of the original debt to creditor, but nature of liability arising from delay in execution of monetary obligations is different in Iranian and French law. Nature of this liability is matter of dispute in Iranian law, and correct opinion is that nature of liability arising from delay in execution of monetary obligations is contractual and the purpose of creating this responsibility by the legislature is to compensate for the devaluation of the money and obliges the debtor, in addition to the amount of the subject of the obligation, to compensate for its devaluation, in order to completely fulfill his obligation but in French Law, nature of this liability is extra contractual and the debtor which has delayed to execution of monetary obligation, irrespective of whether the value of the money has been reduced, is obliged to pay the excess amount of the original debt as a damages according to the legal rate. In addition to changing the annual price index, in Iranian Law, there are requirements for demand compensation of delay in execution of monetary obligations, Such as creditorchr('39')s demand and debtorchr('39')s possibility, on the other hand, in French law debtorchr('39')s possibility is not necessary. In future amendments, the legislature should consider the contractual nature of this liability in Iranian law and determine the conditions accordingly.

Boilerplate clauses are standard clauses that are included in most contracts as a matter of routine. This Article is an attempt to outline the questionable role of boilerplate clauses in numerous legal systems. It examines the contrasting approaches of interpretation of leading example of clauses. Boilerplate clauses are often inserted into international commercial contracts with the aim of creating an autonomous regime for the interpretation and application of the contract. Notwithstanding, the parties use boilerplate clauses to avoid extrinsic elements to interpret the contract, the article argues that the governing law may change the meaning of the clauses. In other words, boilerplate clauses should be recognized as a method of legal risk management, but from a practical standpoint, mandatory rules and legal cultures of governing law, predominate the clauses of contracts. Therefore, the main challenge in negotiation phase is to ascertain the governing law. Because the governing law recognizes the context and mandatory rules of interpretation.