نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 20 (بهار و تابستان 1399)

The prohibition of discrimination in the enjoyment of rights based on sex, race, color, social class, place of birth, belief, religion, and wealth is recognized as an international principle. In Islam, there are seemingly discriminatory rules. Islamic scholars have different ideas about non-discrimination depending on their ideology whether traditionalist or neo-traditionalist or liberal. Some believe that rules such as the rights of religious minorities or women are not discriminatory and try to show them fairly based on developmental and legislative differences. While some believe that the rules are discriminatory based on time and place conditions in today's society. And they suggest dynamic ijtihad to resolve the conflict between religiosity and non-discrimination. The necessity of executing Islamic rules on the one hand and the inherent ugliness of discrimination on the other hand raises a question of how can execute these discriminatory rules. In this article, firstly the prohibition of discrimination is investigated in the international system of human rights and Islamic thought. Then, according to the most important characteristics of Islamic thought, the opinions of different Islamic thinkers on the prohibition of discrimination are discussed.

Judicial supervision over decisions and rulings issued by judicial authorities is one of the most important guarantees of a fair and just trial, through which it is possible for the higher judicial authorities to reconsider these decisions. This issue is also very important in quasi-judicial authorities. While this issue is one of the most important guarantees for the realization of the principle of the rule of law, it is also an important solution to deal with the violation of public authorities within the limits of their powers and authorities. This type of supervision over the Iranian legal system is exercised through the general courts of justice and, of course, often by the Court of Administrative Justice and achieves the mentioned goals. This issue has been considered in Article 173 of the Constitution of the Islamic Republic of Iran and in paragraph 2 of Article 10 and Note 2 of Article 16 and Article 63 of the Law on the Procedure of the Court of Administrative Justice. In this regard, in view of the various ambiguities and complexities regarding the subject under discussion, the present study addresses the question of the specific jurisdiction of the Court in supervising quasi-judicial authorities. In this regard, the mentioned ambiguities have been examined in light of the rulings of the Administrative Court of Justice in a descriptive-analytical method, and finally it has been concluded that despite the relative unraveling of the rulings of the Administrative Court of Justice, the scope of authority and supervision of the Administrative Justice Court over the opinions and decisions of quasi-judicial authorities remains controversial. The solution requires numerous scientific discussions and strengthening the judicial procedure of the Administrative Justice Court.

According to note 452 of the Islamic Penal Code of 2013, the heirs of the victim also inherit the blood of the victim, but "maternal relatives" are exceptions. The above-mentioned opinion regarding the cases of "maternal relatives" who are deprived of Diyat inheritance is absolute and includes all maternal relatives; however, there are three other points of view: all maternal relatives inherit from Diyat; Ami stigmas meaning brothers and sisters do not inherit Diyat; Ami stigmas and paternal sisters do not inherit Diyat. The view of non-inheritance of all the maternal relatives of the bloodthirsty deceased is of the famous interest of the jurisprudents and is consistent with the statement of the aforementioned clause. As a library type of research, this study has made references to sources on maternal relatives in jurisprudence and law in order to determine the example of maternal relatives deprived of inheritance.

Before concluding a contract, people often discuss the basic elements of the contract and the conditions surrounding it in order to form a contract based on the negotiations, but in such negotiations, some people act dishonestly and deceive the other party to get his approval. In such cases, in order to protect the deceived party, Article 439 of the Civil Code has given him the authority to terminate the contract based on the option of fraud. According to the mentioned article, if a fraudulent operation is performed by one of the parties to the contract, it causes the option of termination for the other party, but in the civil law, in case a person other than the parties deceives one of the parties to the contract and the contract is based on such fraud, there will be no sentences. Examining the jurisprudential background of the subject and the conditions for the emergence of the option of fraud and analyzing the position of the third party in relation to the contract, it is determined that in most cases except in marriage, when deceit and tricks are used by the third party without collusion with one of the parties, there would be no fraud option for the deceived party, but since the action of the deceiving person may lead to the loss of the deceived party, he has the right to refer to the deceiver to compensate the damage caused by the contract in accordance with the general rules of civil liability.

The invalidity of the contract is directly linked to the economic order of society, and the nullity of contracts causes damage to parties and disrupts the economic order of Society. Therefore, in addition to adhering to general policies to consolidate trades and reduce uncertainty, some legal systems have foreseen mechanisms that, if canceled despite all the legal arrangements, would eliminate the uncertainty and bring it into the life cycle. One of these solutions is the theory of contract transformation, which is rooted in German law. This means that if the contract is invalid but inside a valid contract, the new contract is the criterion. The main challenge facing the theory of contract transformation entity is that after the transformation, the parties must be bound by the effects of the new contract which was not the result of their real will. According to this theory, contract development relies on the hypothetical will of the parties, which is inferred by the judge, on the basis of the terms of the contract and the circumstances governing it, and in particular the economic objectives beyond it. Unlike the laws of Germany and most of Arab countries, in Iranian law such an institution is not considered as a general rule, but numerous examples of its application are found in law and jurisprudence.

Unauthorized transaction occurs when a person transacts others’ property without having the following criteria: guardianship, executorship, attorneyship, tutorship or obligation of the other or property which belongs to the right of other and this transaction will be unenforceable. The legal nature of unauthorized transaction is a legal act. But regarding the legal nature of permission or refusal of unauthorized transaction that is performed on behalf of the owner or the other, there is difference of opinion. By performing data analyses, the nature of permission or refusal is a legal evident. After performing unauthorized transaction, the owner has authority to permit or refuse transaction in order to determine its circumstance. In fact, the consent or refusal of the owner of a property to an unauthorized contract can be signified by an act which signifies his consent or indicates absence of consent to the contract. Such consent is only effective and valid if it has not been previously refused; otherwise, it is not effective. The owner may make a mistake in refusing or permitting transaction. This mistake is sometime effective and sometimes ineffective. In this article, while expressing the meaning and nature of permission and refusal, the legal effects of mistake on permission and refusal are investigated.

The most recent enforceable international instrument for dispute resolution is Singapore Convention. The Singapore Convention 2019 aims at promotion of mediation by providing the enforceability of settlement agreements. Iran's adhesion to the Convention is a positive step towards enhancing the status of mediation in Iranian law. In the case of a settlement agreement falling within the scope of the Singapore Convention, it shall be enforceable in the member states’ jurisdiction. According to paragraph 3 of Article 1, some settlement agreements are excluded from the scope of the Convention because of the specific subject of dispute settled by mediation or conciliation which includes: “settlement agreements related to consumer, family, inheritance and labor law”. The legal status and conditions of these exclusions are important because of the impact on the benefit of a settlement agreement from enforcement according to the Convention. In addition to the analysis of Iranian law and Imamiyah Jurisprudence’ opinion on these disputes, the present paper concludes that Singapore Convention's approach to exclusion of settlement agreements related to family and inheritance law is justifiable because the aforementioned disputes are subject of far divergent rules in various legal systems and necessity of achievement consensus among all member states necessitates that the mentioned disputes be excluded from the Convention’s scope. However, the attitude of the Convention to exclude the labor and consumer law cannot be justified because it results in loss of consumers and labors.

The right of state immunity in customary international law has been established as the definitive and consolidated right, which derives from the principle of the equality of sovereign governments and is one of the most fundamental principles of universal legal order. Despite the recognition of the principle of state immunity in the international and regional conventions and domestic law of countries, the United States, with the approval of the Foreign Sovereign Immunities Act (FSIA) and subsequent amendments, prepared the ground for a lawsuit against a so-called terrorism sponsors. The seizure of $ 2 billion in Iranian assets by the US Supreme Court in its April 20, 2016 has violated the Iranian government's immunity and posed many legal challenges. This article tries to study the legal principles of defending the immunity of the Iranian government by referring to the rules of international law and the procedure of the International Court of Justice. The results show that the identification of the exception to terrorism as a basis for violating the immunity of the Iranian government by the United States contradicts the principle of equality and independence of states as the fundamental principles of international law. The United States' conduct is also a clear violation of Article 2 of the United Nations Charter and is in conflict with Article 38 of the statute of the International Court of Justice, ICJ Judgment of 3 February 2012, the international procedure, the European Court of Human Rights and United Nations Convention on Jurisdictional Immunities of States and Their Property (2004).

Transfer of action means that the right of action and continuation of the course of trial is transferred from one person to another one and the transferee becomes the transferor's subrogee. Just unlike the transfer of action with transfer of right in which the action is transferred to the third party as a result of transferring the object of the action and the transferee becomes the transferor's subrogee in all rights and duties, in transfer of action without transfer of right, the right of action position is transferred to the transferee, but the object of the action is not transferred. This transfer is called the incomplete transfer of action or transfer of position. In our law, transfer of action with transfer of right has been accepted, and the rules have implications in this area, but transfer of action without transfer of right is not accepted unless prescribed by law. The incomplete transfer of action has its roots in some rules. The transferee becomes the transferor's subrogee in all rights and duties except in the ownership right on the subject matter of the action. Like the owner, he should pay costs of proceeding, expert’s wage etc. Like the proper party, he has the authority to make any decision to filing suit and continuation of the course of trial or dispense from action.

Empiricism is a philosophical approach to social issues which concentrates on a trial-and-error approach. It has been accepted as the dominant method in the natural sciences and then partly in the humanities. This article studies the possibility of application of this approach in criminal law and particularly in punishment. The article reviews the foundations of empiricism and its brief history along with some critiques to empiricism. Finally, the article suggests that given the validity of the reason (hokm al—aql) and findings of rational people (bina al-oqala) in Islamic jurisprudence on one hand and the rationality of empiricism and credibility of the knowledge learned from experiments on the other, it is possible to use experimental findings to evaluate the efficiency of punishment in a specific framework. Also the article mentions and analyzes some examples of using this approach in Islamic texts, including traditions and opinions of the jurisprudents. Some examples of developments of legislation in Iranian penal code in Islamic Republic of Iran is also discussed; the facts that, in their turn, support legitimacy of application of empirical approach in criminal law.

Money is the subject of some jurisprudential and legal rulings and the existing jurisprudential theories that have been presented for money with the past nature and relative stability of value do not meet the real needs in current situation. The theory of purchasing power about the nature of money is preferred for reasons that the jurist cannot issue a correct verdict about it without knowing its current nature. Today it is fundamentally different from the nature of money fourteen centuries ago, and consequently its rulings have fundamentally been changed, so understanding its nature has become particularly important. The question is related to the origin of credit money. Is it purchasing power or its nominal and apparent value? Is the amount of value reserve also one of the functions of credit money? Opponents of compensating devaluation consider money as a paradigm. In the face of usury, they advocate the need for reduction. Value is considered as money, but real value or purchasing power is considered as equivalent to credit money, so the need to compensate for the devaluation is not considered usury, given that the devaluation of money is part of the principle of religion and in Article 522 BC claim damages are accepted. Hence, in addition to claiming the devaluation of money, one can claim the alleged damage of the legislator, which is provided for in Article 522 of the Code of Civil Procedure. It has been expressed along with critique, review, descriptive-analytical method and collection of library information.

From the perspective of the history of the constitutional law of the Islamic Republic of Iran, negotiations in the Assembly of Experts for Constitution can clarify questions or ambiguities surrounding the constitutional law issues. In light of this, the present paper has investigated one of the main issues of the Islamic Republic of Iran's constitutional law – "the head of government" – and has addressed questions on the opinion of the MPs about the head of government. The paper uses a critical, descriptive-analytic research method, and the findings indicate that the representatives refer to the contrast between “Imamiyeh jurisprudence" and "modern conception" of the constitutional law. Here we can witness some kind of conflict of thought which has not only resulted in the "make - Jurisprudence of the text of the constitution" but it also creates a kind of imbalance between the "principle of proportionality of duties and powers". Such discrepancy between authority and responsibility leads to a conflict of practice regarding the constitution. Furthermore, observers to the constitution have to convey a different conception of "president" in the context of the Iranian constitutional law.