نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 33 (زمستان 1402)

While the exceptions to the author's economical rights are one of the accepted issues in all legal systems and are established with the aim of public interests in the legal system, the application of these exceptions and limitations to the author's moral rights is doubtful. This is despite the fact that the scope of moral rights is very wide, especially in the countries of the Roman-Germanic system, and it can be abused. In the meantime, the doctrine of fair use is one of the most important doctrines regulating copyright, which can be proposed in many intellectual property rights issues due to its wide scope. The question of this research is how moral rights are analyzed and interpreted with regard to the aforementioned doctrine. For this purpose, this article uses an analytical-descriptive method and a comparative study of the legal systems of America, is trying to address the fundamentals of limiting the author's moral rights and the possibility of applying this doctrine to the author's moral rights. And at the end it is concluded; although this theory is referred to as a flexible concept, it should be kept in mind that it will not be appropriate and possible to apply it in every legal system; Although it is possible to benefit from its flexibility regarding policymaking in the field of exceptions and limitations of authors' rights, especially in the field of new and up-to-date technologies and contemporary artistic trends

In many legal systems based on direct or semi-direct democracy, some means of popular supervisory mechanisms, including popular initiative, referendum, and recall, are envisaged. Recall is one of the modern popular supervisory methods that, while identifying the representative body, tries to remove the incumbent before the end of his/her term of office. This practice is still unknown and not used in the constitutions of many countries, but considered highly beneficial in a democratic environment. The main question of the present study is the essence of this legal entity by studying it in the legal systems of several states and federal level of the US. For this purpose, in this article, after recognizing the background and classification of recall with regard to the types of monitoring, the mandatory conditions and typology of this process will be discussed. The typology of recall includes its sorts in terms of justified reasons or grounds, signature collection threshold to start the election, and the how of the filling the position of the ousted official or the recall election methods. In some cases, the legislature, taking into account the circumstances, by anticipating the grounds excludes this process from an exclusively political process, which requires the provision of reasons. As a categorizer, one of the distinguishing features of recall is that, unlike other constitutional supervisory tools such as expulsion and impeachment, it is exercised outside of the ruling forces and by citizens. This article tries to introduce the recall, its background and types, evaluation of the recall, a plan to modify the problems raised by the opposition, and finally the possibility of the recall at the federal level of the US legal system.

In order for the proceedings to be fair, the rules derived from the legal principles of civil proceedings must be observed by the litigants and the authority. One of these principles is the principle of equality of arms. This legal principle requires that the procedural rights of the parties be granted to them in a balanced manner, and in case of victory of one of the parties, who unfairly had more effective procedural weapons, the victory won't deserve to be confirmed and implemented; Because the duty of the government is justice, and justice cannot be achieved without granting balanced procedural rights to the litigants. This principle is discussed in legal writings, mostly in criminal proceedings, and in civil proceedings, these questions are also raised: in which documents and judicial procedures of foreign legal systems is this principle reflected and what are its results? What are the effects of the principle of equality of arms in Iran's civil procedure law? And what cases violate this principle? The findings of this research, which was carried out in a descriptive and analytical way, are: This principle originates from the principle of fair trial in the European Convention on Human Rights and is reflected in the judgments of the European Court of Human Rights and is included in the French Criminal Procedure Code. The manifestations of this principle in Iran's Civil Procedure Law can be seen from: balancing the procedural rights of the parties, in having the reasonable opportunity to prepare the defense; The duty of the court to prevent the abuse of procedural rights by the parties; Right of the parties to be informed of the proceedings; Right to have an effective legal representative and Right to be heard. This right is violated by limiting one of the parties' access to documents, abusing one of the parties' financial superiority or legal knowledge, and prohibiting search.

Protecting witnesses against threats is a manifestation of adherence to the principles of fair proceedings and guaranteeing the rights of both parties in a criminal case, however, the practice of different countries in this field is different, the law of criminal procedure while developing several legal articles and also establishing executive regulations for the article 214 C.P.A. has taken a big step towards the implementation of this task. Although the protection of all kinds of life, material and dignified values ​​of witnesses in Iranian law is considered a positive point, but the challenges and basic questions regarding the quality of protection of witnesses of special security crimes and economic corruptions, vulnerable and intimidated witnesses, the need to pay full attention to The financial dimensions and the allocation of legal and psychological assistance and the use of the capacities of restorative justice and civil society as well as the quality of the conflict of these protective measures with the rights of the accused can still be proposed and need to be answered. From the library sources, in the process of comparative study and presenting numerous comparative examples, an attempt has been made to answer and present suitable examples to the Iranian legislator. Considering the numerous suggestions of the article, it is evident that, along with the necessity of practical application of legal regulations and executive regulations, the Iranian legislator should take serious and firm steps in order to adopt special protective measures for vulnerable witnesses, provide wider financial support to witnesses and provide legal assistance and take psychological counseling.

Characterization, means putting subject in category of communication to determine the governing law is global issue that has special complexity in private international law with conflict of characterizations due to internal regulations. Since in Iran bilateral method prevails, judge faces different characterizations from design to the resolution of issue. selfish implementation of system of lex fori on all characterizations both basic, secondary, connecting factor and preliminary problem, challenges the unification of solutions; An ideal that requires achieving same results in different situations in domestic and international law. In situation where the national authors have not explained the conditions governing the issue of description accurately and have confused its types, the current research aims to provide solution by using French law -The inspiration of Iran's private international law-and focusing on separation of characterizations and in this situation, Strengthening the participation of foreign country is helpful: Solving preliminary problem based on competent law according to conflict of law rule of country governing the main issue guarantees internal integration and international coordination. Characterization contained in each rule with regulations of country that enacted it and include the foreign country's secondary characterization, have same result.Of course, there is limitation in bilateral method that makes it impossible to achieve goal. In fact, it isn’t possible to violating conflict of law rule of lex fori: different interpretations of subject lead to the issuance of conflicting verdicts, but basic characterization must be done according to the rules of lex fori. That's reason also justifies negation of renvoi due to characterizations because assuming Carrying out basic characterization according to rules of lex fori and jurisdiction of the substantive law of foreign country, by accepting renvoi resulting from this country's characterization of subject and the application of other substantive law, conflict of law rule of lex fori is violated.

A certain limit of judicial review of arbitral awards is accepted in national legal systems and international instruments. The main and universally agreed grounds for reviewing arbitral awards include procedural and jurisdictional integrity and public policy considerations. However, some legal systems review the application of governing law to prevent egregious errors of law by arbitrators. Such a ground for reviewing arbitral awards, because of connection to the substantial aspect of arbitral awards is contentious and subject to conflicting views. The doctrine of manifest disregard of law in U.S. law, with specific criteria, provides an exceptional ground for reviewing arbitral awards from the perspective of complying with and correct application of governing law. In this research, with study of the concept and criteria and evaluating usefulness of this doctrine, it reveals that reviewing arbitral awards for complying with governing law at a minimum level with specific and narrow criteria can enhance predictability and rule of law in arbitration and at the same time preserve finality and minimal intervention of courts in arbitration. The aforementioned doctrine and the criteria of its application in U.S. law can be useful in interpretation or amendment of Iranian arbitration regulations in connection with such a ground for reviewing arbitral awards, and especially the first paragraph of Article 489 of Iranian Civil Procedure Code.

The usual way to oblige the delinquent obligee to do the work is to appeal to the court judge and file a case to issue a final judgment and also file a case to execute the judgment (prior actions of the judge) and the delinquent obligee may still refrain from doing the work during the execution of the judgment. In this assumption, by resorting to Article 237 of the Civil Law and Article 47 of the Law on the Execution of Civil Judgments, under the supervision of the litigant, the obligee or another will carry out its execution and collect its costs from the obligee. This method is erosive and expensive and harmful. The research question is whether there is a possibility of extrajudicial replacement of the obligee in breach by the obligor or not? We examined the answer to the question by proposing and explaining the theory entitled extrajudicial replacement of the obligee in breach in the modern law of obligations of France and the law of obligations of Belgium and while introducing the theory, the conditions and scope of its implementation were examined. In Article 1222 of the New Civil Code of France approved in 2016, the French legislator has provided for the possibility of replacing the obligee in violation. With the conducted studies, it is possible to propose a theory and the capacity to implement it in Iran's law of obligations, and the attractiveness of implementing the replacement theory is the elimination of the erosion process or the judge's previous actions and its high economic efficiency.

In the Islamic legal system "sharia" as the main source of constitutional law goes beyond the written document and gives content to the norms of the constitution. The idea of ​​an Islamic constitution is neither a mere adherence to the principles of the constitution nor a formalist adherence to its writings, but in fact the same adherence to the spirit of the constitution. In addition, "Ijtihad" and “Maslahah” as two dynamic elements of sharia to deduce sharia rules; Built to suit the needs of each era. In this regard, the study of the nature of the Sharia, which can prevail and influence the principles and concepts of the Constitution as a superior spirit and unwritten norm, compared to the written text of the Constitution; It is essential. The present study examines the position of Sharia in the Islamic legal order as a Hypertext value that has subjugated the identity and foundation of a nation, and also by emphasizing the dynamic elements of the Sharia and their impact on the vitality of this superior norm, tries to clarify the relationship between sharia and the unwritten constitution.

Contract law, as the most important part of private law, compiles and regulates the trading relationships of individuals. The importance of this section has always occupied the minds of legislators and lawyers from various aspects. One of the aspects that has received less attention is the "supervision or control of the judicial authority" on the covenants of individuals in order to create balance in the economic relations of the parties. An issue that may be against the principle of autonomy at first. However, according to some philosophical doctrines such as Deontology, consequentialism and pragmatism and economic foundations such as the theory of comparative advantage and the theory of uncertainty and risk and especially the common intention of the parties, can consider a constructive role for the judge and the possibility of intervention and control of the contract to regulate the contractual relationship of the parties to balance the contractual situation. The possibility of revision on contract has been specified in other legal systems more or less, but no place has been identified in the Iranian legal system. Therefore, it is necessary to research in this regard, at first, its basics should be specified and explained as a road map.

Usually, in the international transportation of goods, the carrier uses various forms to transport, an important part of which is carried by sea, and this causes to governing the several conventions in the legal relationship between the shipper and the carrier. The Rotterdam rules have been set up with the aim of harmonizing the rules governing transportation which the carriage of goods by sea is the one forms of transporting proccess . The regulations have chosen the "door to door" regime. Persons who performing or undertake  the obligations on behalf of the carrier or under his supervision in the port to port area are the same as the carrier in terms of liability and defense conditions, and these persons are called the maritime performing  party. The possibility of direct action is an improvement in comparing with prior rules. The present research is an attempt to know what is the performing parties and the rules of them