نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 30 (بهار 1402)

Influenced by the dominance of secular discourse over the rule of law, the dominant view in international law has been the removal of religion from legal relations (as a normative factor). But gradually, especially since the second half of the twenty-first century, more diverse theoretical and practical views have emerged on the relationship between religion and international law. In this regard, the legal regime of climate change in its development years has always been influenced by influential social forces in the process of climate dialogue. Countries, groups, organizations, and individuals with religious authority or representation of a belief system have increasingly been able to engage in climate dialogue through the lens of faith. This article tries to provide an analysis of how this range of social forces of the international community affects the legal regime of climate change in terms of the historical tradition, social reference groups as well as influential religious figures.

The economic analysis of law is a new product of the link between law and economics, according to which legal rules are evaluated by economic methods. The historical study of the formation of this method of analysis shows that changing the attitude of lawyers and economists from idealism to realism and, consequently, changing their way of studying from formalism in the nineteenth century into realism leads to the creation of this method. The main question of the present research is whether this realistic approach can be adapted to the principles and legal rules of Iran. This question arises from the fact that Iran's law in accordance with Articles Fourth and One hundred and sixty-seven of the Constitution, based on Islamic law and Shi'i jurisprudence and due to the dominance of the rules of jurisprudence over it, is Compliant with idealism, not realism. Accordingly, the purpose of this research is to establish that the basis of the theory of economic analysis of the law is compatible with the jurisprudential foundations of Iranian law or not. The result of the research shows that economic analysis of law is not subject to purely realist thinking, and some of its types are based on idealism. Moreover, Iran's law is not purely idealistic, and some religious sources are realistic. Therefore, using the economic analysis of law to analyze the sources and rules of Iran's law is possible. However, the use of economic methods cannot be applied uniformly in all areas of law. In the economic fields of law, the use of economic analysis is both to determine efficiency and to determine the purpose of legal rules and institutions, but in non-economic fields, the application of economics is limited to efficiency

Economic regulation consists of government's interference within the area of economic activities to protect the public interest in the face of potential risk. In the case of professional self-regulation, the state authorities delegate their authority to the professional of a given field via rectifying statute laws. In the UK, USA, and Australia, this was happening in such organizations, in the private sector, and under the support of governments. But because of criminal cases and scandals in the medical sector, professional self-regulation of the health sector became a subject of criticism. Consequently, governments started to steer clear of self-regulation and commenced reforms that led to meta-regulation in health-related professions. This paper will focus on theories of private and public interest, Tripartism, to explore the role of meta-regulation institutes and governments in professional self-regulation. We start by exploring the theories of self-regulation and then scrutinize the reforms in models of self-regulation in the UK, Australia, and Canada. This may provide a basis for serious consideration of the role of such organizations, especially as the state of covid-19 pandemic causes a serious need for consistent policymaking in the health sector in Iran

Civil liability of the hospitals can be studied from multiple perspectives. Here is the analysis of the civil liability basis of hospitals and medical centers towards patients in Iranian Law and antecessor law particularly French law. Article one of Civil Liability Code, sixth chapter of Islamic Penal Code, in the discussion of "the causes of liability", considers civil liability based on fault.  Judicial precedent 94/10/29 of the Supreme Court also concludes the controversy, about civil liability and explicitly considers fault as a condition of civil liability. In French law, according to Article 1240 Ordonnance n°2016-131 du 10 février 2016 - art. 2 of the Civil Code (articles 1382 and 1383 previous), a civil liability is based on fault, and, as a result, civil liability of medical centers is also subject to the general rule, but requirements and interests in some areas can dampen the authority of the fault theory in the field of civil liability and the mentioned liability can be based on risk theory. This attitude in the French law was reinforced, particularly by the law of March 4, 2002 relating to patients' rights and quality of health system. The purpose of this article is to declare instances of spoken category with an emphasis on French law and the possibility of exercising it in Iranian law.

Social responsibility is a new approach that has been introduced in business and investment as one of the commitments of economic enterprises and tries to create a balance between economic productivity and protection of social and environmental interests. Despite the emergence of this responsibility in the United States and the West, this responsibility has comprehensive and solid foundations in the jurisprudential system which are addressed for the first time in this study. However, Iran seems to be one of the most vulnerable countries in this area; it is independent and due to the obsolescence of some laws such as commercial law, this responsibility does not have a proper place among the regulations. Despite the challenges mentioned, especially the oppressive US sanctions on our country's economic situation, it seems that by creating legal minimums along with soft incentive policies, motivation of businesses to comply with their rules can be increased. Discipline can provide a good ground for establishing and promoting social responsibility in the scope of business activities

The study of Iranians’ tort related writings explicates that most of the top jurists believe that there is a maxim called “the principle of compensating all damages”. Provided that the other two requirements of liability (causation and harmful act) exist, this principle states that all damages, regardless of their type, should be compensated without any need for a specific law prescribing the liability to compensate that kind of damage. Case law is in doubt on how to react to this principle and has since taken two different approaches. Contrary to this popular belief, however, our search in the philosophical foundations (and also in the main goals of tort law) shows that there is no theory that stays adamant about compensating all kinds of damages in any circumstances. Because of the obvious contradiction between monist theories and the principle of compensating all damages, we accomplished a search to determine such a probable connection between plural theories and this principle. The outcome of this study clearly demonstrates that none of the most indispensable plural theories can give rise to such a maxim. It seems that the belief in such a principle (of compensating all damages) is not acceptable neither practically nor theoretically; it is unfeasible in practicality and reduces the power of tort law in organizing and arranging different kinds of social activities, and it is theoretically unsubstantiated. In this article, we propound this idea that invoking this principle should be avoided by our jurists, and as well as our courts.

Ship registration is one of the registration systems that has been considered by legal systems since ancient times. The private dimension of this registration system in light of registration of ownership and other rights, along with the public dimension of granting citizenship to the ship, have turned the ship registration into a private-public system. However, so far, the functions of the ship registration system and the classification of registration systems based on the type of function have not been independently studied and has left questions such as ‘What are the functions of the ship registration system in each of the dimensions of private law and public law, and according to these functions, what are the types of registration systems in each of the areas of public and private law’ unanswered. Based on comparative studies, we concluded that the ship registration system in the field of private law has the supportive-informational function and based on this, three systems of Constitutive, Declaratory and Protective can be developed and Iranian ship registration is the constitutive one. Also, in the field of public law, we see the supervisory-diplomatic function that creates Closed, Open and Compromise Register Systems and Iranian ship registration is a closed one. Finally, suggestions have been made to reform the Iranian system and match it with the expected functions.

Global development is the result of rapid, dramatic and unprecedented advances in science and technology and especially international communications. Undoubtedly the implementation of important development, industrial and economic projects requires the cooperation and interaction of various people and specialties and also investment security. The most important form of providing security for a country's foreign investment is achieved through national legislation. The Iranian legislature, following the developed countries, first in the article 107 of the Fifth Development Plan Act and subsequently in the article 24 of the Permanent Provisions of the Country’s Development Plans Act, has introduced the legal framework of the "Economic group with common interests" in one article and its following notes, to the legal and economic community of the country, stipulating the formation of these groups in the form of "Civil Partnership" and has explained the limits of the obligations and powers of the group’s members. However, in this law, cases have been raised by the legislator that are basically inconsistent with the rules of civil partnership and although this law is practically an adaptation of the law of France, the ratified text is fundamentally different from the French regulations. On the one hand, the legislative stipulation on the formation of a group in the form of a civil company implies the provisions of the civil law under the title of partnership contract which exclusively deals with the management of common property, but such rules are basically not enough to form and run a group. On the other hand, some of these regulations are not commensurate with the goals and functions of the group. In addition, the guarantee of non-compliance with the conditions set forth in this article is generally unexplained and it is not clear what responsibilities will be assigned to the members and managers of the group. It also emphasizes the joint and several liability of the members for the debts of the group

The right to vote and the right to be elected are two fundamental human rights. From the Islamic point of view, these are the significant examples of rights of the people (hagh al-nas) in the public sphere. Restriction of these rights in terms of legislation and interpretation should be justified. Guardian Council of the Iranian constitution, however, sees official positions as religious trust that must be given only to the just people. It presumes that in any kind of doubt, the lack of legal qualifications of nominees should be applied. This has resulted in the disqualification of a considerable number of nominees in different elections. This article seeks to provide a solution to guarantee and expand electoral rights based on jurisprudential principles. According to the findings of this article, the Principle of Correctness and the Presumption of Correctness could be applied during the process of qualification assessment of candidates. This, in its turn, would support nominees against different accusations and result in the limitation of subjective assessments and consequently guaranteed monitoring. Also, the article suggests a strict interpretation of legal qualifications to expand the rights and freedoms of voters and nominees and make considerable changes in the current Iranian election system. For this purpose, the article first explains the presumption of correctness and its application in the process of qualification assessment and presents the proper interpretation of candidates’ legal qualifications. The article insists, in particular, the application of trust principle and presumption of correctness in subjective conditions, such as belief in and practical commitment to Islam, political regime, and the constitution.

Numerous works and principles can be extracted from the concept of contract. The principle of binding implies that the parties implement what they have undertaken. Therefore, the possibility of transferring obligations from one of the contracting parties to another seems contrary to the principle. Therefore, the consent of the other party is a necessary condition. On the other hand, some people believe that the contract has a kind of economic tax and, like other property, it can be transferred. On this basis, jurists use a term called contract transfer, which is common in Iranian and French law, many aspects of which remain unknown. The authors of this article in this research with a descriptive-analytical method, considering the recent amendments to French law, examine the legal nature of contract transfer, try to fill the gaps in Iranian law in this field by providing the necessary proposals and On the other hand, explain the need for effective identification of this legal entity