مجله حقوق خصوصی
پیاپی 43 (پاییز و زمستان 1402)

The advancement of technology leads to the creation of new tools. One of these tools is non-fungible tokens. Non-fungible tokens, which are described as unique digital assets, are built based on blockchain technology. In this short time of their appearance, these tokens have created new questions related to intellectual property rights and, most importantly, the infringement of various intellectual property rights. The tokens in question have created a paradigm shift in how we interact with and understand digital assets. Legal structures need to be reviewed to address the legal implications of these technological developments. The present paper, which studies issues related to trademarks and these tokens, has been done in a descriptive-analytical way using library resources. In cases where a non-fungible token represents a particular trademark or indicates the goods or services of a particular trademark, it examines whether the creator of such token, if he or she is not the owner of the trademark, has infringed the trademark owner's rights. Finally, it concludes that although verifying the criterion of infringement in the second type of infringement seems more likely, we cannot provide a general rule for all the cases. In every single case, a decision must be made according to its specific circumstances.

Protection of an industrial design requires several substantive requirements that one of them is "Non-functional requirement". Despite the long history of examining and analyzing this requirement in other legal systems, this important issue has been neglected in Iran's legal system. Insufficient attention to the said requirement has led to a confusion in interpretation and implementation. Considering the importance of this requirement on the one hand and the lack of research in this field on the other hand, this article aims to answer the following questions: (1) how does the registration office during the examination of an industrial design application and the judicial authority in the industrial design cases face the non-functional requirement? And (2) how is the requirement to be identified from the perspective of legislation, organizational procedure of the registration office and judicial procedure? In the following by analyzing, criticizing and evaluating these procedures, it shows that although the requirement is taken into consideration by the registration office and the judicial procedure in some cases, there are incorrect perceptions and approaches regarding its concept and criteria that the main origin is lack of attention to the theoretical justifications of the non-functional requirement. Finally, suitable legislative, organizational and judicial proposals are presented based on the analysis.

The Principle Pacta Sunt Servanda which results from the autonomy of will and intention of the parties to perform the contract is one of the fundamental principles governing contracts. A contract may be breached intentionally or frustrated by unwanted events like force majeure which causes the obligor to be exempted from performing the contract. These events are studied as excuses for the performing of the contract in different legal systems. But sometimes parties emphasize the performance of the contract so much that no reason, even legal, should permit nonperforming of the contract, as they want the contract to continue to be enforceable in any circumstance; For this purpose, the “Hell or High Water Clause” is included in the contract. In this article, we study the essence, foundations and effects of this clause in common law and the position of Iranian law in relation to it; The mentioned clause is enforceable in the common law, except in exceptional cases, and it is used and cited especially in commercial contracts. It seems that this clause is enforceable in Iranian law, provided that the contracting party has the knowledge and awareness and is capable of managing risk; so, this clause does not conflict with Iran's jurisprudence and legal foundations.

Continuity of imposing sanctions against Iran and its harmful effects on natural and legal person has brought up the necessity to determine of the scope of liability due to imposing sanctions. Clarifying this issue requires examining the viewpoints of thought governing the limits of the legitimacy of sanctions and then determining the scope of civil liability due to imposing of illegitimate sanctions in domestic and international law. The present research which was written with analytical-descriptive method and using library tools, clarifies foundations of civil responsibility due to imposing sanctions in domestic and international law. Regarding the conceptual difference of civil liability foundations in domestic law and international law, civil liability due to imposing of sanctions in domestic law is subject to the theory of fault and in international law is subject to the theory of risk, but both domestic and international systems have this common point that they consider the act of violation of international law as an objective element, regardless of whether that act is intentional or unintentional. In this way, the imposition of sanctions that enforce or effect it violate international law, will causes responsibility of the sanctioning authority.

The most important Judicial Act are crystallized in the form of "Judgement", but the previous (approved 1939) and current (approved 2000) Civil Procedure Law, as well as other related current laws, despite referring to this judicial act and even its examples in numerous articles, are devoid of any presentation the definition is about this. Therefore, the current research aims to identify the concept of " Judgement" with a descriptive-analytical method and with a comparative view, it examines the existing criteria to answer the question, what is the criterion for recognizing this act? Several criteria, both formal and substantive, have been presented to distinguish judicial acts from other (Administrative) actions in other countries, especially in France, which are the criteria for placing any one of them alone is not the answer to the problem as it should be. On this basis, in this research, while presenting the meaning of "Judgement" from a lexical and idiomatic point of view, we introduce and analyze the aforementioned criteria to reach the selected criteria. The findings of the present research indicate that a judicial act is considered a "Judgement" if it is issued by a judicial authority decisively and with the characteristic of being sued regarding a dispute arising from an uncertain legal situation.

In economic relations and financial law, trade secrets form an important part of the assets of the economic actors. Disclosure of the scientific information causes serious damages to the owners of such information. As maintaining the confidentiality of the reservoirs information and technical issues is one of the terms and conditions contemplated under upstream oil and gas contracts, some questions arise here as follows. How, for what duration and to what extent should the scope of the confidentiality of the contracts, keeping the confidentiality, conditions and obligations of the parties for confidentiality in this contracts be? Is confidentiality recognized as a legal principle or is simply considered as one of the terms and conditions envisaged under the trade contracts? To answer such questions, the present descriptive-analytical research examined the domestic laws and regulations, international documents and regulations as well as the upstream oil and gas contracts. Seemingly, the scope of confidentiality under Iranian regulations both covers the provisions under a contract, including the reservoirs information and the well drilling, within the framework of a contract.

One of the important and effective tools to control the actions of the company's managers is the derivative lawsuit. The main purpose of establishing this legal institution is to protect the rights of shareholders, especially minority shareholders, and the company against the violations of managers. In most legal systems, this lawsuit against the directors the company has been accepted. This legal mechanism can prevent the squandering of the rights and interests of the company and its shareholders. A lawsuit is a derivative lawsuit with its own characteristics and is different from a liability lawsuit, both contractual and non-contractual liability. For the same reason In most legal systems, special attention has been paid to this lawsuit, but in the filing of this lawsuit, the existence of some restrictions, including the payment of court fees by the plaintiff, as well as the fact that the company is a joint stock company, has hindered its effectiveness In Iranian law section 276 of the Amendment to the commercial Act 1347 refer to possibility of filing a derivative action . The same is provided vastly in the bill 1384 in section 473 regarding new development of legal.  This study explains the concept of a derivative lawsuit and the conditions for filing this lawsuit in the French and Iranian legal systems, and the comparative aspect of the German legal system is also examined.

A complicated issue of the legal systems of the method for compensation of medical errors is specifically related to how to the manner for claiming "loss of chance". Here, the concept of loss of chance is meant a situation where, as a result of the physician's action or omission, the chance to treat the patient is lost or the opportunity to receive the desired treatment is lost. For the purpose of the compensation of damages caused by the loss of chance in various legal systems, three approaches are recognized: "pure loss of chance", "basic probability" and "proportionality". The course of developments has been examined in this study and by pondering on the case law of the leading countries, it becomes known that the procedure for hearing cases arisen out of medical treatments is incorrect noting our laws and judicial practice; among these, Diyeh (blood money) as a compensator for all perceived damages from medical malpractice and/or the manner of commenting on the criteria and extent of fault by the medical commissions can be mentioned that go through the criminal process in our courts. In this study, using the analytical-descriptive method, by examining the reasons and arguments, it shows that the "proportional" approach has more strengths compared to other theories, and it seems that the possibility of claiming damages due to the loss of chance in Iran should be accepted, taking into account the generality of Article 1 of the Civil Liability Act and the generality of the Islamic Criminal Code, including the chapter on guarantee.

By studying the legal texts and Article 377 of the Civil Code, this point of view is confirmed that the right of imprisonment is recognized as a "primary inherent" right, an absolute and negative right that each of the parties has enjoyed from the beginning and based on it. They can refuse to fulfill their obligations. Also, there is a lien depending on the number of parties; But with a careful study, the theory of "objection and defense" of the right of imprisonment can be put forward. In this description, the lien is a suspended right that cannot be invoked by the resident at first, but only when there is a reasonable and conventional certainty that the other party "doesn't want or can't" adhere to his obligations despite comes It is only for the person who is ready to fulfill the contractual obligations. In this description, there is only one lien and the lien is not multiplied by the number of parties. This research, which was completed in a library method and in a descriptive-analytical way, after stating the flaws of the first theory, presents a new description of the lien.

The normal situation of concluding a contract indicates that the parties in the Qur'an of creating intention and consent, after examining all the conditions and circumstances related to the contract, reach a final decision. In addition to this normal case, for some reason, preliminary agreements may be made on the conclusion of the final contract, which creates legal effects. In general, the unilateral obligation to sell and the right of priority agreement are two common legal forms in concluding the main contract, which, despite the similarities, should be considered as two independent legal entities with different legal regimes. The subject of this research has been the subject of controversy between jurists and the jurisprudence in terms of concept and nature, which in the recent amendments of the French legislature has sought to identify it as a preliminary institution of the contract to have the necessary effects on it. N. In this article, an attempt has been made to examine the concept of this legal establishment along with its effective functions and to determine its place in Iranian law.

Misrepresentation, indeed, by some justifications, faces diverse meanings in Iran and English law. It has been decades that English law discovered the doctrine of "misrepresentation" from common sense. On the other hand, Iran's civil law, which gives little value to pre-contractual negotiations and has accepted the tort categories in a limited and inflexible manner, despite the fact that it ignored the general rule regarding misrepresentation of through the Civil code of Iran, nevertheless, the new perspective of the legislator in the Consumer act is that many of the types of statements that lead to misrepresentations such as mere-puff or silence have been encountered as actionable false advertisements. In this paper, the centralized question is within Art 19 and 7 of the Iranian Consumer Act which provides penalties for advertisers in contracts B2C. The author suggests the same common method regulations for Iran and proposes preventing from including puffs, future, intentions, and silence in the scope of misrepresentation. this study aims to evaluate the system’s legal systems perspectives on the types of misrepresentation. Therefore, the types, for instance, puffing, silence and etc., have been examined in a comparative manner so the researchers may have looked at both legal systems.

The advancement of technology in recent centuries has created needs that did not exist in the past, including fully autonomous cars. Although in fully self-driving cars, humans no longer have the task of driving, but human actors still play a role in the production process and how the fully self-driving car works, but who are these actors and what is the basis of their responsibility? Will the manufacturer of the fully self-driving car have a supervisory duty after the release period? By examining and reflecting on Iran's laws, including the law on protecting the rights of car consumers and protecting goods consumers, civil law, civil liability law, compulsory insurance law 1395 and also by comparing with German laws, including German civil law, product liability law and In the road traffic law of German self-driving cars approved in 2021, we will find that human actors include manufacturers, technical supervisors, and organizations providing information technology services, whose basis of responsibility is different, and although the law of Iran and Germany does not have any regulations, they must For the manufacturer of the self-driving car due to its special nature, it provided regulatory responsibility. In the road traffic law of German self-driving cars approved in 2021, we will find that human actors include manufacturers, technical supervisors, and organizations providing information technology services, whose basis of responsibility is different, and although the law of Iran and Germany does not have any regulations, they must.