فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال نهم شماره 3 (پیاپی 33، پاییز 1401)

To protect the contractor who is unaware of the actual price, defects and characteristics of goods or services, the Law- of contracts- recognizes the right of termination of transaction. But a lack of awareness by the contracting party is sometimes due to ignorance or lack of careful inspection. Analyses of legal texts and doctrines indicate that ignorance of the contracting party does not eliminate the possibility of termination which means that the law is rewarding carelessness! However, keeping solidarity of transactions requires that the right of termination not be recognized, in cases where the contracting party does not reasonably examine the actual price, defects and/or characteristics of goods or services before entering into contract. Critically examining the jurisprudential texts and legal approaches of some European countries, the present study sheds light on the duty of the contracting party to investigation prior to entering a contract. Findings revealed that in the legal systems of France and Germany, in cases where the contracting party was able to observe and become aware of the defect, it is not possible to terminate the contract, while in English law the contractor's negligence will not necessarily deprive him/her of the right to claim deception and therefore to avoid the contract.

In all human societies, according to the prevailing legal system, criminal or non-criminal measures are proposed as ways to deal with sexual crimes. In Islamic criminal law, unlike the legal systems in Western countries, sexual assault in the context of marital relations between couples, even if it is done without consent, is not considered an example of sexual assault, and the Islamic legislator has not considered such acts as a crime in a marriage. This is the case that in the West, intimacy with the spouse without consent and other examples of sexual violence with a milder degree are predicted and criminalized, and if the sexual act is performed despite the spouse's lack of consent, it is considered sexual assault in marital relations. Employing a descriptive-analytical method, the present study seeks to answer the problem of how the criminal policy of Islam and the West deal with the phenomenon of sexual assault, which is due to the lack of independent research in the study of this issue in a comparative manner. The results indicate that in both the Islamic and Western systems, significant measures have been adopted in relation to criminal prevention, howerver, in the criminal policy of Islam, in the field of non-criminal prevention, both in terms of social prevention measures and the situation regarding the establishment of rules such as the prohibitions on the secluded intimacy of non-mahram men and women and adornment, along with the encouragement to marriage and the prohibition of celibacy and strictness in marriage, maintaining the necessary distance between men and women in public, facilitating the areas of community participation in criminal response in the field of dealing with sexual assault, such as banning perverts or murdering a stranger in bed, or the mandatory sentence in defense of one's honor, in addition to the special rules regarding criminal prevention, such as the difficulty of proof, the prohibition of the spread of prostitution, and the public execution of the punishment for the purpose of setting an example, are among the measures that shows the superiority of the criminal system of Islam over the West.

How do new technologies affect the way we interpret legal texts? This is, on its face, an enormous question. Technology and science are ever-expanding in a rapid pace but, legislatures are often one step behind. This fact raises an important question: How do emerging developments in science and technology affect the way we interpret legal texts? One could fill many volumes in an effort to engage this issue in a serious way. But we can also learn a great deal about the larger subject by asking a more modest question: Can general old terms cover emerging developments that did not exist before? In this article, we, firstly, show applying general terms to emerging developments is an accepted method in Imami jurisprudence and American law. Secondly, a distinction must be made between emerging developments that could not have been dreamed of before or seemed impossible and emerging developments that could have been anticipated by an ordinary man.

In recent years, legal systems of some countries have emphasized on civil law capacities to fight economic corruption and acquisition of illicit assets. One of the appropriate and necessary actions in this regard is to remove monopoly on the right to sue, especially civil lawsuits (compensation and restitution of public property and assets) exclusive to the government. Some countries have taken effective steps in fighting economic corruption by providing private entities with the authority of suing and consequently, by creating financial incentives. In this case, “public interest litigation” and its specific type known as “Qui-Tam” has been considered in some countries in recent years. The conditions for filing such action and its legal fundamentals in countries which accepted the action and also understanding the Iranian legal principles and formalities are worth studying. The extent to which it is possible to establish or maintain a similar institution in the Iranian law through observance of jurisprudential as well as legal fundamentals and infrastructures is yet to be answered. Employing an analytical-descriptive method, the present study draws on the rules and legal resources of the three countries. Through a meticulous content analysis, attempt is made to extend "Public Interest Litigation" and Qui-Tam in the Iranian law. Findings suggest that lawsuits based on “public interest” could be effective in fighting economic corruption.

The principle of inclusiveness requires that everyone have access to social security- the right to welfare. Yet, there are certain groups who do not have access to it or are treated with discrimination. The present study aims at examining equality in accessing social security- as a human right- for certain vulnerable groups. A use was made of an analytical-descriptive method in studying the current situation of the Iranian social security system in terms of its success in the application of “the principle of equality in social security for certain groups" with deference to human rights criteria. Findings suggest that generalization and spread of social security to all of a society nest serious problems which in turn leave some segments deprived of access to social security. Iran's legal system of social security should pay special attention to groups that are conventionally in a position of weakness, and the government should establish an efficient system for access to social security for vulnerable people.

according to the article 477 of the Code of Criminal Procedure 2014(1392), the institution of retrial has been envisaged by the head of the judiciary as one of the extraordinary ways to challenge the votes, by recognizing the opposition of the vote to Sharia. The study of French criminal law also shows that the establishment of an appeal in favor of the law is somewhat similar to the institution mentioned in Iranian law. In the meantime, there are various challenges regarding the institution of  against the Shariat, including ambiguity in the criteria for acceptance and the direction of violation of the vote, the competence of the prescribing authority and the quality of its actions. Therefore, in this article, while comparative study of the two institutions, it is tried to identify the shortcomings in the light of conceptual explanation and review the relevant conditions in order to provide a solution to the relevant problems in terms of the desired standards of French law. Accordingly, the findings of this study, which have been obtained in a library and analytical manner, show that both institutions, in terms of the lack of time to submit a request, the ability to apply to all final votes and done through excellent judicial authorities are similar. However, the two establishments are different in terms of their underlying origin, the way they are handled, and the effects on the parties to the case. However, in view of the oversight mission of the Supreme Court, it can be argued that the institution of appeals in favor of the law, if changes are made in accordance with Iranian law, can be a desirable alternative to the institution of against the Shariat.

The institution of public rights is mentioned in Article 156 of the Constitution as one of the major goals of the judiciary in order to realize the rights of the people. There are various aspects to this legal institution including the principles, definition and nature of dissent. The views of Islamic scholars are among the theoretical foundations of the institution of public law. On the other hand, one of the ways to reach a consensus on the institution of public rights is to explain the legal institution similar to collective rights in the sense of "public rights" in international as well as Western views and doctrine. Employing a descriptive-analytical method, the present study draws on the explanation of the views of Islamic and Western thinkers, and seeks to pinpoint the extent of quality and quantity to which the two public rights-collective rights institutions are similar. In this research and in each section, the nature, definition and principles of each of the legal institutions of public rights and collective rights from the perspective of Islamic and Western thinkers have been studied and analyzed. Based on these analyses, it has been determined that based on the reading of the beliefs and ethics of the Islamic Foundation, public rights encompasses a wide range of individual and socialized rights and is more in line with collective rights than the readings of Sharia and jurisprudence based on public rights- which, of course, contains only the socialized individual rights.

Contractual liability in the strict sense of the word is the obligation to compensate for damages arised from breach of contract. The main question is about the nature and basis of this obligation. Shall we consider it as a form of compliance of the contract; meaning that promisor has to give the equivalent of the contract to aggrieved party and perform the contract indirectly; or shall it be considered a separate nature of the contract and as a compensation which is imposed by the law? In the past, western legal systems; specially in France, contended that the claim to compensate for damages is an alternative to the contractual obligation and presumed specific performance. But this view changed, so today, contractual liability like non-contractual liability is considered as a compensatory function, and its basis is considered to be in breach of the contractual obligation so it is separated from the main obligation of the contract. This different view leads to different effects; particularly it denies the the distinction between contractual and non-contractual liability and causes the unification of civil liability. This view corresponds to Islamic law rudiments. It seems that in the Iranian legal system- emanating from Islamic Law, both contractual and non-contractual liability have a same nature and subsequently there is no duality in civil liability. In the present study, we have tried to examine this issue in the Islamic and French law. An interpretion of Article 221 of Civil Code concludes our perspective on Iranian law.

Termination is one of the remedies, or otherwise said warrants, available to the reprieved party in the event that a contract is breached.  Employing a descriptive-analytical method, the present study investigates such a remedy as provided in Imamiyah jurisprudence, as well as Iran and international legal documents. The concept is celebrated across the legal systems, yet there are certain differences inherent to it in Islamic law and international documents. Vehemently stipulated in the Imamiyah, it is incumbent upon the obliged party to perform the subject of a contract, hence, a right to termination of the contract is not reserved. Rooted in Imamiyah jurisprudence, Iran’s law of contracts enshrines the performance of the obligation in the first place, and a right to terminate the contract should the possibilities for the coercion upon the obliged party be rare. Contrary to Iran’s law in which the right to termination falls subsequent to performance of an obligation, the two are accessible alongside each other for the obliged party to choose from in the international legal documents. In other words, as for the termination of the contract, there is no need for a request earlier to (non)performance of the obligation.

It is well agreed that "profitability" is a driving force behind all progress. Yet, there are two sides to the coin: (1) increasing competition affects trade competition, quality, transparency, the environment and society in general, and (2) jeopardizes the peaceful coexistence of business and society. Social responsibility holds “give back what you got from people.” In the new social responsibility, society is not only one of the stakeholders but also the main goal. The concept of social responsibility has been emphasized in verses of the Holy Quran and various narrations. In the present study, this issue has been studied in the jurisprudence and practice of transnational companies with a descriptive-analytical method. The study investigates the scope of social responsibility reflected in the regulations approved by the Iranian Oil Industry in 2019 and its regional and thematic scope in accordance with the practice of international transnational companies in the field of responsibility to see if it is social and if the wide range of issues, from health to road construction, etc. are valid only for the territory of Iran. What has been introduced in Iran under social responsibility is that the oil industry is different from the concept, procedure and practical approach of other countries.

The cheap and easy technology of biological weapons has become a legitimate threat, now. This is no longer limited to the realm of a scientific mythology, nor is it limited to specific geographical areas. Biological terrorism (bioterrorism) against individuals may cause death, disease, weakness and panic in a society, cause social disruption and become a threat to international peace, security, and public order. Using a descriptive-analytical method, the present study delves into the subject matter of this phenomenon, to express the nature and characteristics of biological attack and then in light of the principles and sources in international law and Islam gives a jurisprudential and legal analysis of biological attack. According to Islamic law and jurisprudence, the tenets of human rights and especially the right to life, and moral values, any biological weapon in any form that targets the innocent and the civilians is not allowed; It is indeed more of a “bloodshed” in that many innocents are killed and is a prototype example of “corruption on Earth” as presumed in Islam.

The Iranian Competition Law has been introduced under the General Policy Implementation Law of Article 44  of the Constitution. One of the major issues in competition law is the competition body. There are such institutions in different countries, from countries with a long history of competition law, such as the United States, to countries in the Middle East. In Iran, the Competition Council is the only nationally-recognized authority to review anti-competitive practices and has the authority to make various and important decisions. Because these decisions can seriously affect the rights of stakeholders and economic actors, it is necessary to monitor and control their decisions. Due to its paramount importance and existing disagreement, competence of the Administrative Court of Justice in exercising judicial review over the decisions of the Competition Council and its Appeal Board will be investigated in the present study. The research method is descriptive-analytical. Results of the study indicate that to identify the authority competent to exercise judicial review over the competition council, one should pay attention to the structure and nature of the said council and the type of its decisions. The conclusion of the article is that the Administrative Court of Justice has the authority to exercise judicial review over general decisions, case decisions and the decisions and opinions of the Competition Council in the capacity of dealing with anti-competitive procedures. Moreover, the decisions of the Appeal Board of the Competition Council as well as the decisions and actions of the National Competition Center and their officials are subject to judicial review and criminal prosecution of the court.