فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال ششم شماره 1 (پیاپی 19، بهار 1398)

Contemplating the recent 100-year history of wars and conflicts suggests that warlords sometimes have used tools and tactics that are opposed to legal principles, including the use of deception in the use, cover and logo of the relief quarters for combatants to attack the enemy or targeting the relief and medical aid centers and forces. However, through various principles of humanitarian law including the principle of separation and, of course, by explicit Islamic instructions in the Qur'an and the prophetic tradition, the parties involved are restricted in choosing methods and means of warfare and the use of weapons and methods of warfare that will inevitably cause unnecessary suffering is considered forbidden. The issue of the present study is that what is the scope of involved parties' obligation to separate regarding civilian targets, especially the places of deployment, structures and medical and relief medical teams? Accordingly, through a descriptive-analytic method and by using the library method of collecting information, it will be tried to prove the priority hypothesis and, of course, respect and immunity of relief personnel in Islam. Text of the Holy Qur'an, narrations and, of course, the tradition of the Prophet in Islamic law and custom, the general principles of law and numerous international treaties, including the four Geneva Conventions and its annexed protocols, have emphasized the respect and immunity of the relief staff.

In the present era, awareness of the events of collective life is considered to be a very necessary human need. In the international legal system, freedom of information and news is regarded as one of the fundamental human rights that, in addition to its inherent importance, possesses a special place due to its operation and support of other rights. Accordingly, on the one hand, it can be said that information has a fundamental and undeniable role in ensuring a democratic society. On the other hand, in international and national legal systems, there is a consensus based in which the scope of freedom of information and information is not absolute, and for which there are limitations that public morals could be referred as one of the most important and ambiguous ones. This article, while studying the concept, position and necessity of freedom of information and news in international instruments and regulations, has examined the nature of public morals in the international legal system and Islam and concludes that in the international legal system a different consideration and interpretation of the concept of public morals was taken into account with regard to the foundations of Islam. Therefore, religious and legal examples are mentioned to assess the limitations of public morals.

In this research, the issue of child adoption has been examined through applying legal rules, regulations and systems of Islam, the United Kingdom, and the United States. Child adoption means to adopt another person as his/her child by one who is not his/her blood relative. In Arabic, child adoption is referred to as "da'ee" and "tebti". The word tebti means being son-in-law and its term refers to a boy or a girl who has been adopted by a man and which is called son-in-law relating that man. The holy Quran nullified this tradition of ignorance and ordered to attribute son-in-laws to their fathers, and if their fathers are unknown, they are religious brothers. This study, through a descriptive-analytic method, deals with the following issues: the order for child adoption in the Quran, the related narrations and their consequences; the rejection of the claim based on which child adoption is a human phenomenon, regulations regarding child adoption in the legal systems of Iran, the United Kingdom and the United States, and the conditions of the adoptive parents. In the present era, the delivery of the child by the legal parents to child support applicants is one of the increasing problems. Sometimes the applicant does this act with benevolent purposes, sometimes he/she does it due to resolving his/ problem for having no child, and on some occasions this act is committed by paying money in an illegal or inhumane way.

One of the important issues of adoption institute is supervisor’s marriage with adopted person. Although this subject is predicted in new Law on the Protection of Unsupervised and Bad-supervised Teens enacted in 2013, because of the silence of its executive regulation and disapproval of especial executive regulations in this regard, as well as the moral and social consequences of considering it as an absolute possibility, there is disagreement in practical precedent of judicial courts in this respect. In French law, child adoption is divided into two categories namely perfect and simple ones for each of which there are certain governing provisions. Perfect adopted child has no difference with real child in respect of marriage obstacles and simple adopted, although is prohibited from marrying his/her adopter, but in some cases can marry some family members of the adopter. In this article the possibility of marriage of unsupervised individuals with their supervisors is examined in French and Iranian laws and at last it is concluded that the marriage of adopted and adopter is prohibited in law of France. While, in Iranian law, paying attention to jurisprudential orders, Arts. 1045-1049 of the Iranian Civil Code and non-exhaustiveness of marriage obstacles, this marriage is not prohibited; however, note of Art. 26 of the aforementioned law (2013) has subjected this marriage to the permission of a competent court and observing the adopted child’s interest. In this regard, in order to preventing ill consequences of such a marriage, the mechanism of governing or secondary orders can be applied for its absolute prohibition.

The exception non adimpleti contractus is one of the general rules of contract law in Romano-Germanic legal regime based on which in simultaneous reciprocal obligations, in case of non-performance by one party, the other party may suspend his obligation, and if being sued by other party can defend himself by invoking the non-performance of the obligation. The exception non adimpleti contractus differs from right of retention in Romano-Germanic legal regime. This exception has been accepted in countries following the Romano-Germanic legal regime and the 1980 United Nations Convention on Contracts for the International Sale of Goods as well. The present article, through a descriptive-analytic method and by means of a comparative view, has attempted to prove that the legal concept of the non adimpleti contractus also is recognized in Iranian legal system and Imamiyah jurisprudence. In fact, some legal titles such as "refusing to pay the price or deliver the goods" and "right of retention" reflect the legal concept in question.

In the political system of Shia, popular participation in establishment and continuity of government is based on the concept of Bey'at, which- in its most prominent model- is concluded in the form of a social contract with political agents. In modern law, election is the most significant element in the realization of the representation system and national sovereignty is exercised through representation system and right to vote by electing ones. There is a disagreement regarding the likeness of Bey'at withvote and election the settlement of which is dependent upon the examination of the nature of Bey'at. From the viewpoint of Shia jurisprudence, Bey'at can be considered as a binding and independent contract which only implies emphasis and does not set up a duty for Muslims. In fact, the right of people to self-determination is exercised in the framework of referring to the Welayatand Ummat (Islamic community) is not allowed to accept the Welayat of another person other than Imam(the competent Islamic ruler). People are obliged to discover the Imam in accordance with the existing indicators and do Bey'at with him. It is unlike election in which people can rule anyone upon their destiny through the right to self-determination, and the vote of the people independently, intrinsically and perfectly is regarded to be legitimatizing, and the will of the people exclusively establishes the required criteria in the representative.

One of the significant discussions in law of contracts is the issue of time of effectiveness of the suspended thing in the period of ending the suspension. In Iranian Civil Code, fallowing the Islamic jurisprudence's example, the effect of confirmation in the unauthorized transactions is from the time of permission. However, unlike the suspension-related provisions in some countries in which the order of the issue is given explicitly, there is no regulation expressing the determination of the time of the effect of suspended thing in the aforementioned Code. In 2016 reforms, the French legislator made some changes in the terms stipulated in the former French Civil Code by presenting the issue through separating suspension in conclusion and suspension in dissolution of obligations. Considering the lack of an explicit stipulation in Iran's Civil Code and owing to the non-statement of this issue in Islamic jurisprudence, it seems necessary to study such a subject in Iranian law. Accordingly, the most important result of this article, which is conducted through a descriptive-analytic method, demonstrates that ending the suspension would have no retroactive effect.