پژوهشنامه حقوق تطبیقی
سال هشتم شماره 1 (پیاپی 13، بهار و تابستان 1403)

The phenomenon of working and street children is one of the social problems that is in conflict with the culture and value system of Iranian society. Examining the course of legislative and policy-making developments in this area shows that in facing this phenomenon, there have been three general approaches of "denial", "confrontation" and "support". The application of these approaches in responding to the phenomenon of working children in different social systems has resulted in various legal response patterns, programs and plans. In this article, relying on the analytical descriptive method and using the sources obtained from the document study method, we have done a comparative study of the patterns of legal response to the phenomenon of child labor in the laws of Iran and America, and we show that these legal systems are facing With the phenomenon of working and street children, what model did he use to respond and how effective were these models in dealing with the phenomenon of working and street children. The results of this study show that despite the fact that both countries have ratified international conventions for the protection of children's rights, the will of the policy makers in these two countries to implement these conventions and adopt a protective approach towards working children. is significantly different.

Based on the general rules of contracts, contractual obligations create based on the intention and will of the parties and the content of the agreement; However, in some cases, the legislator does not observe this rule and he assumes that there is a contractual relationship between the parties, contrary to the real will of the parties; and he replaces the real nature with a contractual nature, and he imposes the effects of the second nature on the first. The present study aims to explain the nature and extent of this practical procedure of the legislator. Based on this, the authors have examined the examples of legal relations witch the legislator assumed as another contract, so that by using the descriptive-analytical method, authers could get a rule to identify them in the legal system of Iran and England. In English law, examples of this presumption are similar to collateral contract, good faith and legal fiction. On the other hand, its examples in the law of Iran should be considered such as apparent representation, coercive suretyship, etc. The comparison of the mentioned institutions can lead to providing a clear Criterion of this practical rule of the legislator. Finally, it was concluded that the examples of domestic law are consistent with the structure of Usool-based Hokumat rule, and on the other hand, despite the similarities of this concept with the collateral contract and the good faith in English law, their nature should be considered different. But although the legal fiction is generally used in the field of non-contractual relations and it is less used in the contractual field in the English legal system (both in the legal literature and in practice); it is similar to Hokmi contract, and the logical relationship between the two can be described as “absolute general and specific”;

After Prevalence of Corona, the limitations of TRIPS have been revealed, because the approach of TRIPS on one hand is to support the intellectual property aspects of the vaccine and drugs, and on the other hand, the flexibilities of TRIPS are not enough to ensure fair access to pharmaceutical products. This article examines the unique challenges that have come to the fore due to the Corona pandemic, and finally, examines some of the options that have been presented so far to facilitate equitable access to COVID-19 pharmaceutical products and technologies and shows that the voluntary licensing system mentioned in TRIPS, which is a tool to access affordable medicines, is time consuming and as such needs reform. Therefore, in order to deal with Covid-19 or emerging diseases, In the fields related to public health, countries should take steps in facilitating issuing licenses through establishing mandatory patent pools or to procure vaccine and drugs via already existing commercial, political, economic, or regional groupings now. In Iran's legal system, Article 17 of the Law on Patents, Industrial Designs and Trademarks mentions the issue of issuing compulsory exploitation licenses under certain conditions. Although the approval of this law is another step in the direction of smoothing the path of Iran's accession to the World Trade Organization, the objections to TRIPS also apply to this law.

The legitimacy of Khul' divorce for the wife is an issue that has a precedent in Islamic jurisprudence and has been accepted in some Muslim jurisdictions based on some circumstances. Accepting this right in Iran law can prevent abuse of the right to divorce and the suspension of marriage. In this research, based on a library effort the possibility and requirements of such a divorce has been examined from a comparative point of view. The findings of the research indicate that the wife's strong hatred form her husband is the base of conferring a thing to him and disobeying from him due to the mental and emotional pressures that applied over her. In this assumption, obligating wife to this marriage despite her inner desire is considered a harm to her. In this regard, we cannot confer the right of divorce to husband as a special right for man so that even in cases which the wife is afraid of falling into sin, which that, leds her to a wandering situation. In such a situation, the law of many Islamic jurisdictions gives the wife a right to divorce without the husband's consent.the law of many Islamic jurisdictions gives the wife a right to divorce without the husband's consent.

Some ethicists believe that the philosophy of animal rights considers the sterilization/neuterization of animals as a violation of the principle of respect for them, and therefore Trap-Neuter Return (TNR) programs are also impermissible. Because it seems that this act violates the natural rights and freedoms of animals. In response, the present research shows that the approach of animal welfare under certain conditions considers it justifiable to harm some animals (human or non-human) in order to prevent further harm to others. Based on the philosophy of animal rights, causing less harm to some animals to prevent more harm to others, as envisioned in TNR programs, is more compatible with considering the intrinsic value of both categories. Neutered urban animals can be accepted while they have value in their own right. The experience of European and Latin American countries also confirms this opinion. Although the methods of the pioneering countries are implemented to some extent in Iran, in Iran, TNR programs in line with animal welfare has received less attention. The purpose of this article is to investigate the legitimacy and then the impact of neuterization on the welfare of urban animals with descriptive-analytical method, while describing the laws and enforcement procedures in the countries under discussion. The method is to collect library and field materials (interview), during which the existing problems will be examined and suggestions will be made to solve them based on successful measures. As a result, first the concept of animal welfare and the related approaches, the advantages and disadvantages of neuterization will be described and then the experience of the countries in question will be discussed.

Ethics in interaction with law as a normative system overseeing behavior and social relations, controls humans in their individual and social life within the framework of reason and logic. Compensation for damages is one of the most important issues in the field of civil liability, and the method and quality of compensation has important personal and social effects and the discussion of moral foundations in the method of compensation strengthens the general acceptance and the perspective of realizing social justice. the approach of playing the role of the cause of damage in compensating all types of damage (material, spiritual, physical) with the acceptance and satisfaction of the victim is a secondary agreement in choosing the method and quality of objective compensation that replaces the primary damage. and by examining and conforming it to moral principles such as justice, fairness, goodwill and negation of difficulty and embarrassment, it is preferable and superior to any method and quality of compensation, including monetary method which is studied in the present research with a descriptive-analytical method of moral foundations, with a comparative view of French and English law. the compliance of this approach with the aforementioned ethical principles is as follows with the description of the information and nobles of the perpetrator of the loss and the victim on the amount of damage and the proportional compensation method, on the one hand, all the damages caused to the victim will be compensated. on the other hand, according to the condition of the person causing the loss and the facilities of the person causing the loss, the mentioned difficulty and embarrassment will be avoided.

When someone exercises his right of action and the proceedings begin, any interruption and obstruction in this work has a negative effect and is prohibited. Despite this, the reasons for recuse the judge, which is rooted in the two principles of the impartiality of the judge and the independence of the court, in some way create an obstacle in the process of proceedings, so the incorrect implementation of that can affect the right to action by sending the case to other judges or courts in which the litigants to be felt upset about the proceedings that he does not consider himself recused. These recuse causes, which are contained in the law, if they are implemented in accordance with that principles, there will be a kind of balance in the implementation of the principles, which will not interfere with litigation, nor invalidate the proceedings and the judgment. With this definition, not including a direction in the form of recuse to the judge does not prevent it from being presented as a defense in the process of complaining about the reviewing of the decision, which is a new point of view in this article. Also, the six unification decisions of the Supreme Court, which have been issued regarding the clarification of hard cases of recuse and the effect of refusal to adjudication, although it has been able to solve the ambiguities of the laws to a large extent, it does not answer all the questions surrounding these aspects and shortcomings remain. Some unification decisions of the Supreme Court, while important, do not have a solution regarding the implementation of the principles of neutrality and independence, and others have been issued due to the misuse of the judge's recuse, while comparative studies can provide useful approaches to reform laws and regulations.

Legislation under the Constitution of the Islamic Republic of Iran (Article 71) and France (Article 34 lies within the jurisdiction of the legislature. However, under the constitution, this right of legislation has essential restrictions. Article 75 of the Iranian Constitution and Article 40 of the French Constitution formulate the most important restrictions. This constitutional principle does not allow the Legislature to pass proposals and suggestions that will reduce public income or increase public expenditure.In past years, many questions about the role of the Islamic Consultative Assembly in the implementation of Article 75 have been raised and led to conflict and disputes between parliament, the Guardian Council and Executive Power. However, in France clear rules and proper mechanism in this regard has been devised which prevent the occurrence of such problems. Examining the French approach can prepare the ground for removing ambiguities in Article 75 of the Iranian constitution.Considering the necessity of the comparative study on Article 75, the central aim of this paper is to study the mechanism followed in implementing Article 40 of the French Constitution. This study shows that the French legal system has provided certain rules that determine the parliamentary jurisdiction by using expert opinion and thus does not allow the proposals in conflict with Article 40 to be presented in the Parliament.

Imagine that A has witnessed an incident in which B injures or kills C. It is undoubtedly painful to witness, but does it also follow that one can recover damages for suffering emotional distress as the result of witnessing the accident? The recognition of the tort of negligent infliction of emotional harm, also known as NIED, has been one of the ways that tort law has attempted to provide a remedy for the emotionally injured. Nevertheless, the relatively new tort has raised many questions. In the U.S. legal system, different criteria have been proposed over the years to allow for NIED liability. For example, the impact rule and the zone of danger have been amongst the most popular. This Article focuses on the latest exception which is the bystander liability and its evolution. It is the liability to a person who witnesses a person being injured or killed due to the carelessness of another person. This Article compares the U.S. common law precedent with Iran’s civil liability regime and concludes that bystander emotional harm can also be recognized as a valid cause of action for redressing this type of emotional harm in the Iranian legal system. Bystander liability comes with the caveat of close relationship between the bystander and the injured individual. As such, this requirement should be based on the norms of the community that may differ from one another.

The principle of "the effect of privity of contract " or the principle of "privity of contracts " is a well-known principle in the law of obligations, which is recognized as the principle in all Legal systems. Based on this principle, the obligations of the contract are liabilities of the parties of the contract, and the benefits belong to the parties, and it does not create obligations for third parties as third parties cannot expect profit from the contract. But the principle of the privity of fault in terms of the possibility of a third party citing the violation of the contractual obligation seems to be against the principle of privity of contracts, and this question can be raised If in a contract, obligations are violated and damage is caused to a third party or parties, can this violation of the contract by the parties of the contract be cited as a fault? In French law, the discussion of the privity of contractual fault is raised, and in English law, the examination of some opinions shows the tendency of this legal system to raise this issue, which is raised in this article with a comparative study of Iranian law. It seems that contractual fault has a relative concept and despite the principle of privity of contract, there is an advantage for the third party to rely on breach of contractual obligation to claim damages.