نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 17 (پاییز و زمستان 1397)

Today, one of the most important factors for attracting foreign investments is protecting the ownership of the foreign investor in the host country. The lack of respect for the foreign investor's ownership and the fear of violating it in various forms of expropriation, nationalization, confiscation and seizure of property has been the biggest concern for international commercial law. The present article, by explaining the status of private property, seeks to answer the question of whether the protection of the right to own foreign investors in the Islamic and Iranian legal system has been identified as a rule and principle. It is also desirable to know how to protect this right, while investigating the issues of sharing and differentiating in Iranian and international law in order to find out its weaknesses or strengths. The findings of this research, through library and analytical descriptive studies, show that the private property rights of foreign investors, in accordance with Islamic and Iranian law, can be fully respected. Meanwhile, Iran's law in relation to the strategies of protecting the rights have benefited both from Islamic teachings and has brought it closer to international law, So that the violation of the private property right of foreign investors will have a responsibility for the government.

Article 517 of Islamic Penal Code provides details of civil liabilities and responsibilities of the construction Engineers, who collaborate in devising processes to satisfy employer’s requirement. The construction engineers need to be liable for their actions since their negligence could lead to irrecoverable damages. In this sensitive process, engineers are responsible for their actions and their negligence in their responsibilities can lead to painful and irreparable damages. The above article stipulates that, in case of charge of damages to responsible engineers, they shall be culpable for civil liability. But, on how and on what measures does the court decides such a charge in order to make a reasoned verdict without ignoring the 333 civil law is the question we are in search of an answer. This is the question of our paper and so its answer can justify preferring of Engineer liability to owner liability. In this paper, we relying on some jurisprudents and regulations and sometimes with referring to scientists comments that present criteria for elimination of some ambiguities in these areas .These criterions are: Domination of Engineers to building workshop, Engineers’ obligation to result and Legal obligation of Engineers as to important criterias in determining of causation link between building accidents and engineers behaviors.

The right and/or the verdict of option for the husband toward his spouse in revocable divorce is identified in article 1148 of the Civil law and legal sources and is the source of dispute. Some jurisdictions know it as “right” which can be scrapped and reconciled and others define it as verdict that cannot be scrapped. This dispute is originated due the fact that distinction between the right and verdict is difficult while both have been expressed by the legislator. Despite the criticism leveled against some of the diagnostic criteria of the right and verdict such as transmissivity and scrapping and their deficiencies, but investigating the causes of right and verdict is still the best way of diagnosis. Accordingly, the verdict of option in revocable divorce for the husband with abovementioned standards, specially the causes, can be proved via verses and hadiths. The ability of scrapping of the option in revocable divorce for the husband and also the permit of reversion of the husband to the wife despite of scrapping in his option can be extended whether it is a right or verdict. Therefore, proponents of both views contemplate it as a possible decision to scrap it with peace and with the permit of revocation. Consequently, this conflict has no result. Also, although some jurisconsults such as Imam Khomeini has asserted that the option for the husband toward his spouse in revocable divorce is a verdict, in some other cases they have regarded it as a right.

The wife of the couple in the Imamiya has a special attribute. This feature is the product of following the followers of the Imam's religion from the narrations attributed to their infallible imams. Accordingly, the wife does not contribute to the amount of her property of all the property and the couple. The significance of the deprivation of the wife from the inheritance of the real estate and immovable property has been stated that the wife may, after studying, resign her land share, and reciprocate the entry and intercourse (new couples) among the heirs, and the prejudice to the inheritance. The findings of this research suggest that some of the documented narratives of the infallible Imams have been based on specific times and circumstances that nowadays the demands of the time have led to a new cause, according to which the wife could inherit all of the couple's domicile. The current and existing requirements for social, cultural, political, educational, research, and economic empowerment of women in the Islamic society of Iran include a change in the standards of their related sentences, and will change the sentences by changing the criteria. Among the changes in the rules of the judgments about women, it is understood that the quality of the heritage of the wife is a matter of quality. On this basis, the quality of the wife's inheritance, like the legacy, is to be eliminated and the current deprivation of the wife should be eliminated. So that the wife inherits all the property and the couple. Such an attitude would agree with the appearances of the Holy Qur'an.

The rules of Iranian civil law in relation with agency are in a manner that have lessened the efficiency of this legal mechanism and have extremely loosen the validity and stability of the contracts based upon agencies. Putting too much recognizance on Will Theory and being satisfied by its inevitable results lead to these lacks. It is not always easy to legitimize the situation in which people, without being responsible, can apparently under their own names and actually on the behalf of someone else make a contract and based on such an excuse flinch their commitments orpretend to have a position they do not have and introduce themselves recklessly the agents of other people and encourage others to make unreliable contracts. Moreover, according to the results of the contact, it is not easily legitimizing to exonerate someone who prepared the bases through which other people trust a third person as an agent and based on this fact, they are encouraged to make a contract with a Apparent agent. This is also a subsequent of too much recognizance on Will Theory. On the contrary, Reliance Theory, concentrating on the necessity of satisfying the legal expectations of people, prevents the opportunistic behaviors and provide a logical and reasonable base in a way that while avoiding the lacks of Free Will Theory, make stability, efficiency and security avaiable in agency relations.

It has got the common belief of western lawyers that the principle of the freedom of contract is the very realization of fundamental and philosophical principle : "Autonomy of Will" in legal world. This famous belief has however posed itself on considerable critics, some of which has denied the derivation of the freedom of contract from the principle: "Autonomy of Will". Some others doubted the importance of the freedom of contract for the principles of justice. Some others have notwithstanding admitting the very necessity of the freedom of contract, hesitated its inside for not being utile and must inevitably inject a suitable content for it in order to serve as a good, welfare and social justice. This article is to review these critics whose taking seriously, will lead us not necessarily to construe law's policy-based intervention in the freedom of contract as the denial of natural and constitutional principle: "Autonomy of Will".

According to the common opinion, fundamental developments in political structures and particularly revolutions result in a violent criminal policy. The use of this harsh policy is often a means of protecting the achievements and values of revolutions. The Inclination to harsh punishments in Islamic Republic of Iran after the Islamic revolution is often analyzed from this point of view. However, the functions of power often actualize and emerge in a structure of social powers, the most important element of which is the normative frameworks of communal conscience. It was the normative pressure of common conscience that shaped and guided the functions of power in different fields including the systems of criminal sanctions. The tendency of traditional religious power to harsh punishments in the first decade of the Islamic revolution was not simply a reflection of the discursive elements of power. Rather, the normative pressure of the common conscience also played a vital role in adopting a harsh criminal system. It was a change and development in this social discourse, which later provided a background for a less punitive system and resulted in a gradual turn to a less harsh penal policy.