نشریه پژوهش های حقوق تطبیقی
سال بیست و پنجم شماره 3 (پیاپی 113، پاییز 1400)

Man is a voluntary being, and having this quality causes human responsibilities to be borne And if a person is reluctantly influenced by her will, it is not possible to hold her responsible to some extent. Of course, this view is foreseen in the discussion of the general rules of contracts and criminal liability in the laws of Iran and France, but the Iranian legislator has been silent on civil liability law. Scholars of Islamic sciences have addressed this issue in jurisprudential books and disagree on some issues, including the issue of reluctant murder. The Islamic Penal Code legislates the punishment of the reluctant person, but in the legal field, Iranian jurists, in their books on civil liability, briefly refer to the books of jurisprudence and related laws, but a special rule for It has not been predicted. Carefully in the laws of Iran and France, the need to provide separate materials for the issue of reluctance in civil liability of Iran due to the growing importance of civil liability and to prevent disagreement in the judicial process has been felt and the proposed materials have been presented.

According to the principle of Freedom of contract the parties to the contract can include their preferred condition in the contract. In this way the condition of the best effort to fulfill the obligations is one of the conditions that can be mentioned in the contract, according to which, the obligor will do his best to fulfill the obligation. Such a condition causes the obligor not to think only of relieving himself. Despite the frequent use of such a condition in US contracts, there is no consensus on its validity. In this legal system, Some lawyers do not accept the mentioned condition due to its generality and ambiguity and consider it invalid, and on the other hand, they consider it correct. Recently, in international documents such as Unidroit Principles of International Commercial Contracts and Principle of European Law Service Contract  the condition of the best effort has been recognized and declared valid. In Iranian law, this condition is explicitly accepted in some laws, such as insurance laws and medical law. This article, using a descriptive-analytical method, after explaining the concept of the best effort condition, examines the position of this condition in the legal systems of Iran and the United States, as well as some international legal documents.

Proper functioning of payment systems mainly requires a legislative support by establishment a strong and cohesive legal framework. One of the important factors in the efficiency of these systems is the management of legal risks, i.e. losses due to unexpected or uncertain implementation of a law. Presence of foreign elements in international payment systems makes laws, governing these systems, conflict more likely and through those laws the conflict between bankruptcies laws, in cases which one of the parties gets bankrupt, is inevitable. Analytically-Descriptive in manner and by comparative studies the present research discusses various approaches of different legal systems in resolving conflicts between bankruptcy laws and jurisdictional competences and also considers the impact of these laws on proper functioning of payment systems, especially those effects related to the principle of performed payment order’s irrevocability and the settlement finality principle. According to the results of this study, preference of the law governing the payment and settlement system to the law governing bankruptcy affairs, establishing substantive regulations in support of payment systems in a manner that the validity of performed payment orders and settlements, which had been taken place before the commencement of bankruptcy processes, and also the validity of payment orders, which are taken place without awareness of bankruptcy sentence and after bankruptcy process commencement, would be maintained by elimination of provisions regarding the retroactivity of bankruptcy sentences and also elimination of any zero hour rule regarding payment systems, are crucial for avoiding adverse effects of bankruptcy laws conflicts on payment.systems.proper.functioning.as.well.as.to.reduce.legal.risks.of.such.systems.

Airline passengers in many cases do not sue against the carriers because of damages caused by delays, cancellations and bodily injury, which, of course, has led to the dissatisfaction of passengers with industry and is also in conflict with consumer rights. It is by the fact that Is is not worth taking claims to a national court due to the high cost of litigation, time consuming and insignificant amount of compensation. Therefore, a mechanism is needed to support passengers. In European countries, this support and mechanism has been achieved through arbitration chambers, However based on Article 34 of the Montreal Convention like the Warsaw Convention (Article 32), arbitration as a means of resolving litigation arising from the liability of the carriage of cargo was approved exclusively. The important question is arisen, then, is whether passenger claims can also be referred to arbitration. In this regard, based on the tendency to arbitration and according to the examination of preliminary talks, in addition to the carriage of cargo, to the carriage of passengers is developed and it is proved that there is no prohibition in Iranian law in this regard; In particular, it is not desirable to abandon litigation or refer to the Iranian judicial system, which is incapable of resolving such litigation. Therefore, by accepting the principle of arbitrability of this category of lawsuits, based on the progress of Europeans

In accordance with the developments of the last three decades and the rise of China as a world power, its role in international relations and its trade and economic position in our region, and the actual and potential transactions between Iran and China that also have the legal and contractual aspects, the need to pay attention to Chinese legal studies by law schools has been clarified. The quantity of legal works created in this field shows the lack of sufficient attention of the legal community of the country to this field. Therefore, this study firstly, by considering comparative law attempts to explain the position of the Chinese legal tradition in relation to other legal traditions, and secondly by listing the foundations of the Chinese legal tradition, tries to take the first steps in the field of Chinese legal studies.

Under normal circumstances, security and freedom as two human rights must be established in every society in order to protect human values ​​and principles; But in the face of terrorism emergencies, governments may be challenged to combine the two human rights of freedom and security. The predominant approach adopted by countries is a security-oriented approach. This paper first examines the laws and judgments of the United Kingdom, France, and the United States, and explains that governments often ignore freedom of expression in these circumstances. In contrast, there is a freedom-oriented approach that in the face of terrorism with the establishment of freedom, security to some extent ignores this approach and this approach due to the desire for a security-oriented approach by governments can not be adopted by governments and only historical aspects of this approach can be adopted. Found by governments. Finally, further investigation in this regard can lead to the conclusion that in balancing security and freedom, moderation can be maintained and, in times of emergency caused by terrorism, restrictive human rights can be restricted as much as possible; In such a way that neither of the two human rights of security and freedom is violated under the pretext of establishing another.