نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 15 (پاییز و زمستان 1396)

In spite of the silence of the constitution regarding the power of regulation-making by the Guardian Council, this constitutional institution directly, or through being committed by ordinary legislator, takes action in regulation-making. Despite this issue, the competence or incompetence of the regulation-making by the Guardian Council is one of the most significant matters in Iran's constitutional law. This article seeks to investigate the opponents’ and proponents’ positions on the Guardian Council's regulation-making power and deal with whether the Guardian Council has the regulation-making power. Some of the reasons for verifying this power include recognition of regulation-making power by ordinary laws, competence of similar constitutional institutions for regulation-making, recognition of regulation-making by interpreter of the constitution, regulation-making power to ensure the independence of the Guardian Council and regulation-making power based on constitutional custom. Through the analysis of these reasons and the responses of the opponents of Guardian Council's power, the research question has been answered. The findings of the present research study suggest that despite the necessity of recognizing the regulation-making competence of the Guardian Council (such that it can desirably perform its duties and powers), this competence cannot be defended in light of public law principles and the Constitution of the Islamic Republic of Iran.

Civil liability for unknown risks of new products that are called “development risks” is one of the most important discussions of product liability. These risks arise from deficiency of human science and that is why it may be supposed that producer is exonerated from liability for unknown risk. However, despite the silence of the Iranian legislator and jurisprudential sources, in order to protect consumer against unknown risks, the authors have attempted to prove that producer’s liability for unknown risks is justifiable both in Iranian law and Imamiyeh (Shiite) jurisprudence. The most important pieces of evidence include defectiveness of product for unknown risks, customary attribution of defect to incurred loss, ineffectiveness of foreseeability element in civil liability, Asalat- O- Salama (principle of product’s perfect quality), Ghonm rule )one who profits must compensate) and no loss rule. However, these pieces of evidence are somewhat controversial and can be relied upon only by special interpretation of certain concepts. Generally, authors’ interpretation is focused on Iranian law and Emamiyeh jurisprudence. This article consists of two main parts; in first part, the authors have addressed the concept of unknown risks and legal - jurisprudential bases of liability for unknown risks, and in the second part, they have further clarified these pieces of evidence. As a conclusion, the authors suggest some mechanisms in order to protect consumers against unknown risks.

Takaful is an instrument similar to and as an alternative of insurance and has been recognized in some Sunni countries such as Malaysia. In such contexts, it is believed that usury (Riba) exists in insurance contract. This article primarily explains all of Takaful models based on Ja’fari and Sunni jurisprudence and then proceeds with evaluating its correctness function in Ja’fari jurisprudence. It is suggested that (1) based on Ja’fari and some cults of Sunni Jurisprudence the two Takaful models (Mudharabah and Waqf) don’t match, but the others are correct; (2) Takaful contract is the combination of two contracts: one of them is among the participants with Tabarru’ intention of contribution to Takaful fund, and the other is between participants and operator, based on the agreed model, in order to empower the Takaful operator to implement insurance process and invest on the activities of Takaful fund in Islamic markets.

This study addresses one of the barriers to civil responsibility entitled "The Illegal Behavior of the Dead Man" on the basis of Roman law and Western contemporary law. After examining the very concept, conditions, effects, scope, barriers and foundations of this kind of defense and the views of its supporters and opponents are discussed and it is concluded that although Islamic law (Imamiyeh jurisprudence ) and Iranian law do not contain a rule called "the illegitimate defense of the lost conduct", this rule is based on the principle of "stinging on the wrongdoers: the perpetrators of the illegitimate acts", which is a specific aspect of the principle of action, based on the punishment and punishment of the perpetrators of illicit acts and the prevention of profits and the avoidance of rewarding the wrongdoers. As one of the barriers to civil responsibility that results in total or partial deprivation of compensation for damages, this is accepted in Islamic law (Imamiyeh jurisprudence) Iranian law. This claim is defended by reference to the fundamental and supplementary sources of this legal system, and through induction form certain thematic laws.

The issue of government transactions where the government is seen as the largest public rights person and the governments entrance into deals , like private individuals, in order to develop and update its huge economic, social, cultural and infrastructure facilities by concluding contracts with contractors are among the most important executive tasks of the government. This research aims to study the necessity of institutionalized and mutually supportive government actions, including administrative contracts, in which the differences in the preconditions, the conclusion and implementation of those contracts seem to be obvious. The present research is mainly interested in practical applications and follows a non-experimental descriptive method in terms of the nature and method of collecting and analyzing data. The findings of the research revealed that the government's authority is based on legal relations, the principle of application and the unilateral decisions. In fact, administrative and executive officials make decisions about their duties and competencies, which basically do not require agreement with individuals and create rights or duties for individuals. It is expected that there would be differences between the parties to the contract; hence, identifying the causes and origins of these differences in administrative contracts in order to reduce their number eliminate these differences is suggested.

Procedure is one of the basic foundations of law. Everything which is required in the court from the very first moment of litigation by any of the parties to terminate the dispute seems to lie within procedure. Law has different branches, each of which has special principles and rules. Solving and judging about conflicts is based on these principles and rules. Thus procedures are different in different conflicts. Due to this, in Iranian parliament, separate procedures have been passed for legal and criminal claims. This article has shown that the procedures of administrative courts are different from those of civil and criminal courts. However, the nature and foundation of these courts are different. Thus the procedures of other courts cannot be imposed on the Court of Administrative Justice. This paper suggests that despite using the term “procedure” in its title, the new Court of Administrative Justice Law has not been able to integrate the special procedures of this institution into Iranian legal system.

The young are citizens and in their being citizens they have special status because of being in the process of growth and formation of personality. Hence, criminal policy makers have developed special acts for the young and have defined certain conditions for them in order to settle the disagreements on the procedures of juvenile crimes. The formation of professional courts for the investigation of juvenile crimes is the most significant effect of this approach. The rationale underlying this approach has been to develop a special space in criminal justice system for interaction with the young offenders. However, there have been some fluctuations in and challenges against the policies of juvenile courts. Iranian criminal policy has deleted some of such special courts and has ignored some of such measures. Nevertheless, the legislator has paid attention to special courts for investigation of juvenile crimes in criminal procedure Act1392. This article addresses the Iranian legislator’s approach to juvenile courts for the investigation of appeal and non- appeal crimes.