نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 24 (پاییز 1403)

A trustee may receive a reward due to the position he has as a trust the ownership of which is disputed. In some cases, the legislator considers such a reward as a bribe and, as punishment, confiscates it for the benefit of the government. However, it is silent on other cases. Doctrine has also not paid sufficient attention to this matter, making it necessary to closely scrutinize and examine this issue. In English law, considering that the trustee is obliged to be loyal to the beneficiary, receiving a reward by him is regarded as contrary to that duty and the asset acquired will belong to the beneficiary. The findings of the present research indicate that a distinction should be made in Iranian law. In some cases, a contract of gift concluded between a trustee and a third party is correct, and the reward belongs to the trustee. In the case that, based on the agreement between the mentioned persons, the action of trustee is against the interests of the beneficiary and the juridical act concluded by trustee is invalidated, or the subject matter of the said agreement is detrimental to the beneficiary, relying upon Article 975 of Civil Code, the contract of gift is invalid and the third party can take back his property. In the case that the contract is a commutive contract and receiving a reward for performing an action is not contrary to the interests of the beneficiary, or the aforementioned person ratifies the act of the trustee despite the above fact, the reward belongs to the beneficiary. The nature of the reward in this case is not a contract of gift and the reward is a part of the consideration.

Laying Charges, as the first step of the criminal process, and referred to as the gate of the criminal justice system, has no room in Iranian law. While it has proven to be effective in countries, such as England, that have a common law system, and in addition to filtering the cases that enter the criminal process, upon suspicion that a crime may have been committed, a police officer or prosecutor has the discretionary power to either close the case at this step or refer the case to the next step, i.e. the step of prosecution and investigation; Therefore, establishment of this step in Iranian law, in the absence of the necessary requirements and provision of an appropriate model, and without sufficient attention to scientific and systematic mechanisms and careful consideration, would not only prove fruitless and fail to achieve the goals of criminal law in establishment of the aforementioned institution, but would face certain defeat.In the meantime, many criminologists today seek to introduce preventive solutions to crime by presenting modern criminological schools and ideas and provide grounds for its prevention. However, unfortunately, sometimes the criminal justice system itself, disregarding the importance of the step of laying charges and without clear bases, brings people into the criminal justice process, and this action alone may destroy the efforts of criminal law thinkers.The current research, employing a descriptive-analytical method, following an examination of the subject of the research in a comparative manner, considers the main requirements of the step of laying charges to include the scope of the amount of punishment; measuring the degree of judicial importance and taking into consideration individual-biological and social-personality factors, and to implement the laying charges in an appropriate model in Iranian law, regardless of the leaning of the judicial system towards the accusatory system at the step of the prosecutor’s office, proposes measures that include consideration of the legal, systematic, rehabilitation, laying charges and conviction capability.

In order to achieve an advanced market where consumer rights are protected in the best way, regardless of the need to pass progressive and dynamic regulations and guarantee criminal, legal and disciplinary enforcements, the presence of strong supervisors is necessary. In addition to monitoring the activities of the players in that market and trying to implement the laws and regulations and deal with the violators, it supports the rights of the weak segment, who are weak in terms of economic and informational power, i.e. consumers. The stock market is no exception to this and the most important task of its supervisory bodies, which are the Supreme Council of the Stock Exchange and the Stock Exchange Organization, is to protect the rights of investors, especially small investors or consumers of this market. Due to its importance, this issue has been noticed by all advanced countries and it has been mentioned along with investors, publishers and intermediaries, as the four basic and important pillars of the above market, but the models of this supervision are different. In some countries, such as Australia, Austria, Finland, Germany, Iceland, Japan, Mexico, South Korea, Hungary, and Sweden, there is an institution that oversees all financial markets, which is called the integrated or unified model, and on the other hand, others such as England, France, Switzerland and the United States of America have appointed a supervisor for each of the financial markets, which is referred to as the institutional method. Our country follows the recent model and each of its capital, money and insurance markets has special supervisors, and according to Article 3 of the Unorganized Money Market Regulation Law approved in 1383 and also Article 18 of the Monetary and Banking Law of the country approved in 1351, the supervision of the money market with The Central Bank and the Money and Credit Council supervise the insurance with the Central Insurance of Iran based on Article 1 of the Law on the Establishment of the Central Insurance of Iran and Insurance, approved in 1350, and the supervision of the capital market, as stated, with the Supreme Council and the Securities and Exchange Organization. May the description of their structure and duties be found in articles 2 to 7 of the Securities Market Law approved in 2014, and according to Article 3 of the Securities Market Law approved in 2014, the council is the highest pillar of the securities market, which can be compared to the Securities Exchange Commission (SEC). mentioned in the United States of America that all the activities of stock exchanges and trading of all types of securities must be under its supervision, and it was created according to Section 4 of the Securities Exchange Act of 1934. In our country, unlike today, during the rule of the former regulations, i.e. the Law on the Establishment of the Stock Exchange approved in 1345, there was a single pillar supervision and only the Stock Exchange Council was in charge of this matter. Article 3 of the Securities Market Law approved in 2014 enumerates the members of the Supreme Council of the Stock Exchange, which is 12 members and consists of representatives of the executive branch, the judiciary and the private sector, which is responsible for approving the macro policies of the securities market. Article 5 of the same law also called the stock exchange organization a non-governmental public institution with an independent legal and financial personality and with a board of directors consisting of five members from among trustworthy people with good reputation and experience in the financial field, exclusively from non-governmental sector experts who Their salaries and benefits are paid and administered from the organization's budget with the approval of the Supreme Council of the Stock Exchange (Articles 6 and 13 and Clause 11 of Article 4 of the Market Law). The chairman of the board of directors of the organization, who is the head and the highest executive officer, is appointed from among the members of the board of directors upon the proposal of the members and the approval of the council (Article 9 of the Market Law). Article 7 of the market law also describes the duties and powers of the organization's board of directors. Needless to say, since the supervision of the stock exchanges is usually carried out by specialized supervisory institutions, in recent years after the global financial crisis, the discussion of intensifying the supervision of the stock exchanges and the government's involvement or lack of it has been raised, and there is a consensus in this regard. does not have. The important question is; The Competition Council, which by approving the law amending the articles of the Law of the Fourth Program of Economic, Social and Cultural Development of the Islamic Republic of Iran and implementing the general policies of the forty-fourth (44) article of the Constitution approved on 3/25/1387 and in its ninth chapter under the title "facilitating competition and Prohibition of monopoly" officially and specifically as a type of single administrative institution model overseeing the performance of companies and competition in the market and with the combination mentioned in Article 53 of that law with the aim of facilitating competition and prohibiting monopoly and preventing disruptions in competition or removing obstacles It is on the way to form a competitive situation and is considered as the only authority to deal with anti-competitive procedures, does it have the right to interfere in the stock market of our country despite the presence of supervisors such as the Council and the Stock Exchange Organization? through comparative study; We will try to clarify the above issues. Regarding the last question, it seems that it is difficult to accept it according to paragraph "c" of article 36 of the law on permanent orders of the country's development programs approved in 2015.

Waiving Resolutory Condition; Criticism and Analysis of Judicial Precedent with Comparative Insights from French and English LawThe article explores the feasibility of waiving a resolutory condition through judicial review and a comparative examination between the legal systems of France and England using a descriptive-analytic research method to achieve uniformity in judicial precedent between the courts. The primary question is, after fulfilling the resolutory condition, is the contract valid just by the parties’ agreement to waive the condition and remain of the contract? Is the contract reinstated? Could the Beneficiary (the person in whose favor a condition) waive a resolutory condition by himself and therefore, prevent the termination of the contract and reinstating the contract? The nature of the resolutory condition and its consequences on the contract, the dependence of the termination condition on the will of the person in whose favor a condition is made before and after the fulfillment of the condition has been examined. The most important impediment to the fulfillment of the resolutory condition has been reviewed, It was concluded that before the fulfillment of the condition, the parties’ agreement to waive the condition is valid, as Could the person in whose favor a condition is made waive a resolutory condition by himself. Also, the parties’ express or implied agreement to waive the termination and maintain the contract is reputable even after fulfillment of the resolutory condition, as the will of the person in whose favor a condition is made to bind a contract and not invoke its termination, will be sufficient for reinstating the contract. Thereupon, the jurisprudence shall avoid unnecessary termination of many contracts by considering the results acquired by the article.Keywords: Resolutory Condition, Waive (Withdraw), Nature of the Condition, Suspension, Applying to Termination (Dissolution of Contract), Restoration of the Non-Existent, Constructive Subjects.

The purpose of this article is to examine of the rule on prevention of conflict of interest in the Islamic Penal Code of 2013 through employment of a comparative approach. Paying attention to the prevention of conflict of interest in the criminal system is a basic rule in line with maintenance of justice and increase of public trust. In the comparative approach, conflict of interest is a set of conditions that cause "professional decisions and actions" to be influenced by a "secondary interest". Conflict of interest takes different forms, the most important of which are: union of rule maker and law enforcement/unity of the supervisor and the supervised/conflict of duty with duty/conflict caused by relationships/conflict of monetary gain with duty, and so on. The issue important because conflict of interest can lead to corruption. Analyzing the articles of this law, the authors of this article have identified signs of the legislator's attention to this rule, which are tantamount to findings of the research. In this article, the extent to which the legislator has paid attention to the rule on prevention of conflict of interest in approving the abovementioned law has been determined and the most significant examples of the legislator's approach to this rule have been delineated. The information was collected by the library method and the thematic analysis method was employed to do the data analysis. i.e., by analyzing the content of the articles of the law, their position (positive or negative theme or approach) has been analyzed in relation to the rule on the prevention of conflict of interest. The final finding indicates that the legislator did not have knowledge of this rule when approving this law or, despite its knowledge of it, did not believe in the rule on prevention of conflict of interest.Comparative studies, however, indicate that different countries and international organizations and conventions pay special attention to this rule.

The land registration system is a critical database that individuals rely on for information about immovable property. A key feature of an efficient database is the comprehensiveness of its information, which is equally vital in land registration systems. Ensuring comprehensive registration information has always been a concern for those overseeing land registration systems globally. Incomplete registration data can lead to discrepancies between registration information and the actual state of lands, potentially causing public distrust and various negative repercussions.Historically, land regulations have been intertwined with social considerations, presenting continual challenges for land registration systems. Social considerations often conflict with formalism and registration laws. For example, in pre-Islamic Arab societies, where literacy was uncommon, documentation alone was insufficient to prove ownership, leading to hardships in transactions. Such historical perspectives in Islamic jurisprudence, which significantly influences Iran's legal system, pose challenges to encouraging individuals to register their land.With societal development, the negative impacts of deficient registration information became more evident, including transaction instability, fraud, boundary disputes, and difficulties in implementing macro policies due to unregistered land. Efforts to overcome social considerations and ensure comprehensive registration information have become more pronounced. Notably, Theodore Burton Fox Ruoff, head of the UK Land Registry in the 1960s and 1970s, introduced the "mirror principle," aiming to make the land registration system a reflection of all facts related to immovable property.Despite procedural similarities between the land registration systems of Iran and the UK, Iran lacks a comprehensive literature on the mirror principle. The challenge of registration information deficiencies due to social considerations is common across all land registration systems, and Iran's system is no exception. This paper investigates whether Iran's land registration system has successfully achieved comprehensive registration information for immovable property. It also explores the reasons behind any successes or failures, evaluates the UK's status in ensuring comprehensive registration information through the mirror principle, and identifies UK practices that could benefit Iran's system.The research is structured into four sections: historical context and definition, theoretical basis, conditions and legal effects, and a comparative approach to the mirror principle in the UK and Iran. In the historical context and definition section, the paper delves into the evolution of land registration systems, highlighting the development of the mirror principle in the UK. The theoretical basis section examines the legal theories underpinning the mirror principle, emphasizing the importance of comprehensive and accurate information in land registration for ensuring legal certainty and protecting property rights. The conditions and legal effects section explore the practical implementation of the mirror principle, detailing the specific legal and administrative measures taken to ensure the accuracy and comprehensiveness of the land register. This section also analyzes the legal implications of implementing the mirror principle, including the potential benefits and challenges associated with ensuring that the land register accurately reflects the current state of property rights.During these sections, the paper shows that Iran's current regulations do not fully support the realization of the mirror principle. Historically, the policy of mandatory public registration has not succeeded in encouraging landowners to register their properties due to inadequate enforcement mechanisms and the non-essential role of registration in legal transactions. Furthermore, numerous exceptions to mandatory registration in Iran present significant obstacles to achieving the mirror principle.To improve the comprehensiveness of registration information and achieve the mirror principle, several recommendations are proposed. First, the registration process should be transformed, making registration a prerequisite for any legal transactions. Non-registered deeds and informal agreements should be invalidated to enforce mandatory registration. This would provide a strong incentive for landowners to register their properties, ensuring that the land register accurately reflects the current state of property rights.Second, future reforms should aim to minimize exceptions to mandatory registration as much as possible, retaining only those exceptions where their existence is justified by critical reasons outweighing the broader goals of the registration system. By reducing the number of exceptions, the comprehensiveness and accuracy of the land register can be significantly improved, ensuring that it serves as a reliable source of information about immovable property.Achieving the mirror principle in Iran's land registration system is essential for ensuring public trust in its efficiency and protecting immovable property. The research underscores the need for regulatory reforms to address current deficiencies and adopt best practices from the UK’s system. Implementing the mirror principle would enhance the reliability of the land register, providing a clear and accurate reflection of property ownership and rights. This, in turn, would facilitate more secure and efficient property transactions, reduce the risk of disputes, and support the effective implementation of macro policies related to land management and development.In conclusion, the comprehensive implementation of the mirror principle in Iran's land registration system is crucial for ensuring the accuracy and reliability of registration information, fostering public trust, and protecting property rights. The proposed measures aim to create a robust, comprehensive registration system capable of meeting macro policies and effectively safeguarding individual property rights.