فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال هفتم شماره 3 (پیاپی 25، پاییز 1399)

One of the important issues regarding criminal fault as a mental element of unintentional crimes is the criterion of determination the fault. The legal systems of different countries have chosen one of two Subjective and Objective criteria in this matter. The main issue examined in this article is to determine a more appropriate criterion and the reason for it. Advocates of the objective Criteria, who accept the existence of fault where the perpetrator thinks contrary to the mentality of ordinary persons, have argued the easiness of proof of the mental element and unity of the elements of civil and criminal fault as a basis for justifying their position. On the contrary, the adherents of the Subjective Criteria, argue that the criterion for determining fault is the mental state of the perpetrator himself, and argue that it is unreasonable to punish a person based on the mental actions of not himself but others. In addition, proof of fault is possible based on external evidence. In the present article, through a descriptive-analytic method, the criterion governing the mental element of unintentional crime has been studied, taking into account the approaches of the legal systems of Islamic and Western countries. Furthermore, the approach of Islamic jurisprudence to this issue has been examined. The result of the study is the strengthening of the theory of Subjective criteria, which is also consistent with the nature of the fault and the culpability stated in the criminal law, and it is necessary for the legislator to explicitly determine it in the regulations.

The value of consideration in the sale contract has been influenced by the social, economic changes and time and place and the teachings of the scholars in jurisprudence and Iranian law has a significant role in determining the meaning of the ownership. Ownership has no religious fact, but is a customary notion so we should refer to custom of time and place for its meaning at any time and in any place. However, the American and English legislators’ approach toward the ownership of objects are various. From the jurisprudence and domestic law’s viewpoint, things may have little and rare benefit, but this cannot be considered as a permission to make a sale contract in usual circumstances. While, according to the western legislator, such a thing can be regarded as valid in concluding the sale contract. Iranian law and jurisprudence are adherents of transmission of the ownership in all kinds of sales at the time of its conclusion. But, nowadays, this way cannot meet the requirements of the society and the application of legal mechanisms such as retention of the interest clause, time and sharing possession that exist in the American and English legal systems, with considering all the dimensions, is an issue that can be reinvestigated. The present study, through use of a descriptive-analytic method, presents a new reading of the ownability and ownership in the laws of Iran, England and US the result of which is that the Iranian legal system has to update its legal mechanisms to guarantee the rights of the parties. The findings show that ownership is one of the conditions for the validity of the sale, and custom is the criterion for the main and shared indicator in jurisprudence and Iranian law and the western legal system in determining ownership.

One of the important issues that has attracted the attention of international community and with which the world in 21th century is confronted in recent years is displacement crisis. Nevertheless, the study of rights of “Displaced Persons” in international instruments shows that they are not still under the protection of legal system and just enjoy the protection of general protections existed in human rights law, humanitarian law and international criminal law that are insufficient and selective. This necessitates more and active intervention of the UN human rights system. But, owing to the fact that the duties of states toward individuals are part of erga omnes obligations and even in some cases fall under jus cogens, the present research by using descriptive-analytic method, while studying and analyzing the obligations of states towards displaced persons came to this conclusion that of the most significant obligations of states are first obligation to protect and prevent the development of displacement and then obligation to accept the displaced persons.  Therefore, it seems that displacement in the emergency conditions can be considered a right for individuals and an international obligation for states. consequently, the violation of rights of displaced persons may cause the international responsibility for the wrongdoer state. In addition, a study of the displacement status in the world shows that Islamic countries are mostly exposed to the displacement crisis (more than two-thirds of the world's displaced population belongs to these countries), which is mainly due to violence and internal conflicts, which in most cases are rooted in tribal, racial and religious issues.

Constitutionalization is one of the most important and major legal approaches through which the fundamental rights of all citizens are protected and guaranteed. Constitutionalization theory means the entry of a legal rule into a set of fundamental rules that the state, in addition to its obligation to respect, is obliged to protect and fulfill them. There is no doubt about the influence of constitutionalism in the case law in the field of administrative proceedings, because this phenomenon is a product of the court and the constitution, and in the French legal system, this institution is the main interpreter of the constitution. The new Constitutionalization in its modern content, as it guarantees the rights and freedoms, has affected the functioning of the administrative judge, transforming him from a judge who merely seeks to enforce the law to a liberal judge. Such a tendency is observed in France. This theory is of special importance in the French legal system, while in the Iranian legal system, unlike France which has a constitutional court, due to the absence of such a court, the legislator has had a special look and in Articles 170 and 173 of the Constitution, the field of judicial oversight of administrative actions is somehow realized. The roots of this theory should be sought in the text of the Constitutions of 1875 and 1947, but it seems that this theory does not have a strong theoretical support in the Iranian legal system, because the life of this theory in our country is almost a decade. Therefore, in this research, which is written in a descriptive-analytic method, we try to explain and compare the theory of the Constitutionalization of administrative law in the two legal systems of Iran and France.

Owing to the importance of the position of adjudication, the judges have a sort of immunity in most legal systems in order not to be under pressure, to feel comfortable in issuance of judgment, and concentrate on finding the facts and laws of the cases submitted. However, due to some factors, judge's decision may cause material or moral damage to one of the parties in which case the impossibility of compensation is contrary to fairness and justice. But whether sue must be against the state or the judge is controversial. This study that is written through a descriptive-analytic method and by employing a library-based approached, aims at settling this problem. In the French law, the damages initially are compensated by the government, and the government has the right to refer to him if the damages are caused by the intentional or heavy fault of the judge. In Iran’s law, in the intentional or grave fault or unforgivable mistake of the judge the lawsuit is conducted against him and otherwise, would be against the state. While, the new Code of Criminal Procedure enacted in 1392/2013 as regards the damage arising from an imprisonment resulted in acquittal has followed the same method which is enforced in French law and other advanced systems according to which the state is responsible for compensating the injured and meanwhile, the right of the state to refer to the blameworthy judge is reserved that ensures the rights of the injured. Therefore, extension of this statement to cases where the fault or the mistake of the judge causes the material and moral loss to the parties, will advance the justice and increasingly secure the rights of the aggrieved party.

If two corporations are related and affiliated through management and economic circles, one is called the parent and the other is the subsidiary. This affiliation will, in most cases, result in the complete domination and control of the parent over the subsidiary and thus abuse its template. Now, given the acceptance of the principle of limited liability in corporate law, can the legal practices and actions created be attributed to the parent company as the controller of the legal relationship (between the subsidiary and third parties)? The US legal system, by resorting to the Alter Ego rule, has prevented such an abuse. The Alter Ego refers to the conditions that the courts exercise on the basis of Justice and Equity and thereby treat the parent company as the proprietor of the company or the real party to the benefit against good faith third parties. The basic conditions for applying this rule can be effective real ownership and control of the Alter Ego (the parent company) over the actions of the subsidiary, unity of interest and ownership between the two companies and unjustified actions of parent company. In the Iranian legal system, there is no explicit regulation in Trade Code in this regard. There is no specific solution in the case law as well. But it seems that by taking advantage of capacities of Imamiyah jurisprudence and domestic law such as The Swindle Rule, theRule of No Damage, the Theory of Agency, the Theory of Relative Independence of the Legal Personalityand other principles, this rule can be applied.

Consumer rights protection as a group with weak economic and information resources and less bargaining power has always been the focus of lawmakers in various countries. For these shortages it is always emphasized that relying solely on the principle of contractual freedom does not preserve their rights. This is true for both normal and real market consumers, especially the financial market and, above all, the capital market. Small investors or consumers of the stock exchange as the most important part of the capital market are non-specialists who, although buy and sell securities on the stock exchange with the aim of earning money, this activity is not the main job for them and due to the above weaknesses need special legal protections. Among rights of the stock exchange consumer is granting the right to compensation and litigation to them against the possible losses incurred by other players in the stock market which somehow protects their other rights, more importantly, it has a preventive aspect as well. This right is predicted in Securities Market Act adopted in 2005 by our country and other countries like the United States and European countries. And according to art. 36 of the related Act, the jurisdiction to deal with, after disagreement with the relevant center, is delegated to the arbitration board which contrary to what is prevalent in arbitrations and referring to them is optional, referring to the Exchange arbitration board is mandatory. This article seeks to answer the following questions: Who is the stock exchange consumer? What is the form of a capital market litigation?.

The right to sovereignty over one's own destiny is a fundamental and undeniable right rooted in the inherent dignity of man. In a democratic system, the recognition of the founding power - the will of the nation - and the superstructural nature of the sovereignty of the people in determining their own destiny are considered to be a principle that must necessarily be established in an sphere outside the established norms of law that governs all established institutions that not be arisen from nor be limited to them. Therefore, the constitution that is the product of the will of the nation cannot limit the will of its founder. In this article, through a descriptive-analytic method, we have dealt with this question whether considering some articles of the constitution as irreplaceable principles damages the right of the people to sovereignty over their own destiny? The research hypothesis is that the unchangeable principles of the constitution are contrary to the sovereignty of the people in determining their destiny, because the constitution will not be capable of countering the political will of the people and restricting the founding power that is the basis of the constitution. It is for this reason that the constitution must continually conform to the political will of each generation, and the real sovereignty rests on this principle that the will of no generation be imposed on other generations. Thus, it seems that recognizing the unchangeable articles in the constitutions should be considered as their notable significance in the view of founding power and their fundamental role in the construction of the constitution without which the nature of the structure based on that constitution would be changed. This cannot be regarded as ignorance of the the principle of self-determination, because the will of the majority of the society has the ability to change the existing constitutional order and create a new one at any time.

The experiences of the early years of the Islamic Revolution led to the institutionalization of the "expediency" rule with the establishment of the Expediency Discernment Council in the structure of the legal system of the Islamic Republic of Iran. On the other hand, the concept of public interest has a longer history in the legal system of western countries. Given that the ultimate goal of governing and managing public affairs is to secure the public interest, and that these interests must be exercised by relying on public authority in society, the validity of this concept as well as expediency through their evaluation criteria is of paramount importance. In this study, while explaining the metrics of these two concepts, the relationship between them has been analyzed and it has been concluded that the model of measuring expediency based on the principles of Sharia introduces pragmatism along with spirituality, unlike the method of measuring public benefit that promotes pragmatism based on materialism. Accordingly, the method of measuring expediency has a more positive complexity than the method of measuring the public interest. Of course, the positive aspects such as the preeminence of reparation for the disproportionate burden imposed on the rightful owner as a result of recognizing the issue, can be seen in the method of measuring the public interest.