نشریه الدراسات القانونیه المقارنه
پیاپی 1 (ربیع و صیف 1402)

Discounting commercial papers refers to the act of selling an order before its deadline at a price lower than the specified price listed on the papers. Since ancient times, discounting commercial papers has been a common method for businessmen to secure funds in global markets. However, there are differences and debates regarding its legal and jurisprudential validity. In our current research, we aim to explore the existing theories of legal experts and jurists, particularly regarding the jurisprudential nature of discounting commercial papers. We will then critically analyze these theories and propose a new theory in this field. Based on the studies of jurisprudential opinions, it becomes evident that various jurists and religious scholars have differing views on the prohibition of discount, with some providing detailed rulings on the ruling of discount in its various branches. Others have ruled that discounting is absolutely permissible, and they have analyzed it based on various contractual frameworks such as sale, loan, transfer, or a combination of loan, transfer, and guarantee (referred to as a composite contract). Drawing upon the theory of "freedom of contracts" and "non-confiscation of contracts" as stated in Article No. 10 of the Civil Code, which is supported by contemporary jurists, we have elucidated the espoused theory. We consider the discounting of commercial papers as a new, logical, and rational transaction, firmly grounded in Sharia jurisprudential principles and supported by jurists and legal experts.

This research aims to examine the provisions of the tax system in Iraqi and Iranian laws, with the objective of identifying the similarities and differences between them. Iraq has been recognized as one of the pioneers in implementing tax systems within the region. It was the first country in the region to introduce a tax law. However, the evolution of this system has been influenced by changes in the economic and political systems adopted by the ruling elite in Iraq over time. At various stages, the country has transitioned between a free economic system, a socialist economic system, and even a mixed economic system. Iraq maintained a socialist approach to its economy until 2003. However, the significant changes that occurred in Iraq after 2003 had a profound impact on the economic system, subsequently influencing the tax system as well. However, the Iraqi tax legislation fell short in achieving this goal. In the aftermath of this significant change, it is evident that the ruling authority in Iraq must take more decisive steps to reconcile economic planning with appropriate legislation in order to effectively translate the desired environment. We also observe certain theories that are proposed to be generalized to the Iraqi economy to align with the level of economic change. However, it is crucial to ensure that any modifications or renewals are carried out without errors to prevent any potential flaws in the economic system. This calls for the Iraqi legislature to reassess financial legislation as a whole, and specifically taxes. This is in light of the findings from the research conducted on the Iraqi side. As for the current Iranian tax system, it reveals a negative status characterized by complexity, lack of comprehensiveness, and the presence of extensive exemptions that are simultaneously ineffective.

Criminal protection, achieved through coercive prevention and punishment of water-related crimes, plays a crucial role in mitigating the agricultural crisis in Iran. This crisis has led to a heightened reliance on imported agricultural and food products due to declining water resources and inadequate water management. The surge in imports of unsafe genetically modified organisms (GMOs) exacerbates the crisis, as it prioritizes food security at the expense of the right to access "healthy" food. The inadequacies of Iranian laws and legal procedures in safeguarding consumer rights in relation to GMOs necessitate criminal measures to ensure food security amidst the water crisis. From a jurisprudential standpoint, arguments in favor of GMO production appear stronger, supporting the alignment of criminal policies that do not criminalize these products. Opponents of GMO production raise concerns that go beyond jurisprudential considerations, highlighting potential abuses in genome research that challenge human dignity. This article critically analyzes existing laws and regulations pertaining to criminal protection in the areas of water and biosafety concerning GMO consumption. It provides a framework for criminalizing behaviors that disrupt the food supply chain, emphasizing both absolute liability and the presumption of criminal liability. The primary objective of this article is to evaluate the provisions of laws relating to GMO products and water crimes, with the aim of holding government bodies and public and private entities accountable for enforcing and monitoring food safety laws. It advocates for the application of the "principle of minimum and limited intervention as a last resort."

This study aims to explore the political and administrative institutions in Algeria, with a focus on the presidential system as one of the key models of modern governance. This system originated in the United States of America and has continued to serve as a model for its governance since its establishment. It has often emerged as an alternative to monarchies for governance in countries that have incorporated it into their constitutions. The presidential system is built upon two fundamental pillars: The first pillar is the individualization of executive authority, where it is consolidated within the apparatus of the head of state, without the participation of any other entity. The second pillar is the strict separation and balance of powers, ensuring that each authority operates independently from the others in fulfilling its responsibilities. The system does not necessarily guarantee successful modern democracy in all circumstances. Despite the relative success of this system in the United States, its effectiveness cannot be assumed in all countries that have adopted it. The success or failure of the system depends on the unique political and social context of each country. In fact, some countries that have implemented this form of government not only failed to achieve its intended outcomes, but also experienced adverse consequences due to their inability to fully embody its principles and foundations. The presidential system, in its proper form, is not always synonymous with the values and principles of true democracy in all situations.

Oversight of the constitutionality of laws is a crucial legal mechanism to uphold the supremacy of the Constitution and ensure its authority over other legal rules. It is a matter of utmost significance as it serves as the essential means to combat any potential abuse of legislative authority and to restore it within the confines of the Constitution. This study provides a descriptive, analytical, and comparative approach to answering the question: How can the state effectively monitor the constitutionality or legitimacy of laws? Based on this comparative study, we have concluded that oversight of constitutionality can be either political, when it is delegated to a political body, or judicial, when it is carried out by a judicial entity. Judicial oversight can occur both prior to the enactment of a law, as well as subsequent to its enactment. This oversight is exercised through original claims seeking to abolish a law, as well as through claims of unconstitutionality through abstention. The American experience in this field traces back to the landmark ruling of the Supreme Court of the United States in the case of Marbury v. Madison in 1803. In this ruling, the Court established its authority to refuse the implementation of legislation that it deemed incompatible with the Constitution. The Egyptian experience has witnessed significant development, particularly since the establishment of the Supreme Court in 1969. Those who closely follow the Court's rulings will notice that they bear resemblance, in many aspects, to the rulings of the American Supreme Court.

Given the growing number and variety of administrative lawsuits, as well as civil lawsuits, their significance has become increasingly apparent. Consequently, specialized judicial bodies have been established to address these complaints and cases. My research primarily focused on the authority of the administrative judge to annul administrative decisions. I thoroughly examined all aspects related to this matter in Iraqi laws to identify the strengths and weaknesses of each provision within this legal framework. In this regard, my aim was to highlight the distinctions between administrative decisions and other matters, as well as to accurately define the existing procedures for annulling administrative decisions. This was done in order to explore the criteria and consequences associated with the revocation of administrative decisions, which arise from the discretionary powers of the judge in both Iraqi and French law. Furthermore, we noted that, in accordance with Iraqi law, the administrative judge possesses the authority to annul administrative decisions in various circumstances, including cases where the decisions are in violation of laws or when the administrative decisions are deemed invalid. Through the annulment lawsuit, the administrative judge exercises oversight over the legality of decisions issued by various administrative bodies. If the administrative judge determines that a decision is unlawful, he declares it as such and proceeds to annul it on that basis. The claim that an annulment case concerns the legality of a decision implies that the powers of the administrative judge, as a general principle, are limited to the cancellation of unlawful decisions. The judge does not possess the authority to delve into assessing the appropriateness of the administrative decision, nor is it permissible for the judge to modify the decision that is deemed illegal, nor is he permitted to issue directives to the administration. Our objective is to identify the shortcomings in Iraqi and French laws and propose measures for their reform. For this research, we employed a descriptive and analytical approach, drawing upon Iraqi and French laws as references.

The Arab Republic of Libya has experienced numerous changes in the realm of constitutional law and political systems. In the recent era, following its independence from Italian occupation, Libya transitioned from a monarchy under the 1951 constitution to a republican system led by the Revolutionary Council in 1969. The leadership of the revolution played a central role in governance. The Green Book, as a supplementary annex to the Constitution, formed the constitutional values of the state until the 2011 revolution, which led to the overthrow of the dictatorial regime and the establishment of new constitutional and administrative systems in Libya. The central question of this study is: What are the political and administrative components that constitute the governmental system of Libya? Employing a descriptive-analytical approach, the research examines the key institutions and entities in the country, such as the head of state, the General People's Congress secretary, the parliament, the supreme judicial courts, and local and administrative institutions. One of the key recommendations put forward by this research is to prioritize religious and national foundations while also incorporating the latest advancements in human achievements.

Abstract</strong>Given the extinction of numerous wild animals or their high vulnerability to extinction, the protection of these species has emerged as a paramount concern in the realm of environmental law. What principles do international documents, laws, and provisions encompass in order to safeguard these animals? The Convention on International Trade in Endangered Species of Fauna and Flora, known as CITES, was established in 1973. The primary objective of this agreement is to safeguard plant and animal species, particularly those in the wild, from excessive exploitation through international trade. The preservation of the environment and natural resources in our country (Iran), including wild animals, is a responsibility of the government and falls under the purview of Article No. 8 of the Public Services Administration Law, specifically clauses "i" and "k". The Environmental Protection Organization exercises control over the hunting of wild animals through various measures, such as issuing hunting and possession licenses, extending the identification deadline for hunters, requesting the cancellation of firearms licenses for hunting purposes, and confiscating hunting and possession equipment.

Personal status is a combination of characteristics and circumstances that distinguish an individual from others, determining their legal status within society. In Islamic countries, there is a close tie between personal status and religion, as Islamic law governed these nations until the late nineteenth century. Islamic countries diverge in legislating laws and regulations governing personal status rights, as well as their adherence to Islamic law in legislation in the scope of personal status. The main question is: How could an inter-denominational personal status law be drafted? What mechanisms can be employed to formulate it? What are its implications? This study conducts a legal analysis of personal status systems in Islamic countries using a descriptive-analytical approach. It demonstrates that while the jurisprudential schools of thought in these countries differ in shaping family law, the general principles governing family law are largely identical due to the close relationship between these issues and religious and moral teachings. As a result, it is desirable and feasible to draft an interdenominational personal status law.

The assassination of the two martyrs, Al-Muhandis and Soleimani, is an international crime that lacks any legal justifications and is deemed an arbitrary and extrajudicial execution. The utilization of drones in the assassination operation poses a significant threat to international peace, as the principle of non-intervention in the internal affairs of nations is a fundamental principle governing international relations, ensuring the respect for the sovereignty of other countries, particularly neighboring nations. However, the significance of this principle has diminished over time, to the point where its violation has become more common than the exception. Sovereignty is constantly eroded by human rights considerations, and the concept of sovereignty being a responsibility rather than an absolute privilege remains a topic of debate. The practices of the UN Security Council concerning violations of international humanitarian law during non-international armed conflicts are perceived as posing a threat to international peace and security. Chapter Seven of the Charter grants extensive authority to the Security Council to undertake measures for the suppression or prevention of aggression, breaches, or threats to international peace in accordance with Article 39. It is important to note that acts of terrorism can occur both during armed conflicts and in times of peace. When we refer to the framework of international humanitarian law, we see that terrorist acts do not align with the provisions of this law as applied in armed conflicts. Such acts of terrorism are considered grave violations of international humanitarian law. It imposes an obligation on states to abstain from resorting to acts of terrorism and to establish suitable domestic legislation to guarantee compliance with public international law. The justifications put forth by the United States for the assassination of these individuals are unfounded and in violation of international law. Washington has failed to provide official explanations to the UN Security Council confirming whether these individuals were targeted due to their alleged involvement in an ongoing or imminent attack, as claimed by the United States. Consequently, the United States bears responsibility for the repercussions of these actions. Failure to address these grave violations will only serve to pave the way for future assassinations of senior officials from United Nations member states. Hence, international peace will deteriorate and descend into a perilous decline. Previously, Washington classified the Iranian Revolutionary Guard Corps as a terrorist organization, but it is important to note that other countries are not obligated to adopt this classification. President Trump alleged that the US embassy in Baghdad was under threat from Iran, subsequently expanding this claim to include four embassies, despite the lack of substantiated evidence or concrete proof. Washington's justification for the killing of Soleimani is presented as a preventive measure to deter future attacks, yet it lacks clarity regarding the specific locations and timing of these potential threats. Washington has failed to provide evidence demonstrating that General Soleimani posed an immediate and imminent threat that necessitated his assassination. </strong>

This study sheds light on the administrative courts in the Republic of Iraq, including their establishment, composition, and evolution, as well as the lawsuits filed before these courts, the extent of disagreement within them, and their organizational structure as established by the Iraqi Legislative Council. It offers a detailed and in-depth examination, in comparison with French legislation. This is due to the necessity of implementing a specific mechanism for the selection and qualification of judges specialized in handling administrative disputes, within a well-defined time frame specified by the law. It is the government's responsibility to fulfill this obligation, and the legislator should ensure that this process is entrusted to an independent body. While the right to litigation is crucial for the progress of administrative judiciary, it is essential that the legislation itself clearly outlines and establishes this right to ensure its effective implementation and adherence. Furthermore, the composition of the Iraqi Council of State should consist of judges who possess a deep understanding of common law principles and are well-versed in the characteristics and nature of administrative disputes, similar to the judicial systems in France, Egypt, and many other countries worldwide. Given the specificity of administrative lawsuits brought before the Council of State, it is imperative to provide a comprehensive explanation of its characteristics, formations, and historical development in both Iraq and France. Additionally, it is important to elaborate on its organizational structure, taking into account the imperative for Iraqi Shiism to align with modern judicial practices as well as the approaches adopted by great world powers. From this perspective, it is crucial to conduct a study on the constitutional framework of the Council of State, aiming to explore its organizational structures, assess the level of alignment between Iraqi and French legislations, and identify the variations between them through analytical, inductive, and comparative methodologies. Hence, we decided to provide a thorough examination of these councils. Consequently, the study has been divided into three sections. The first examines the concepts and general principles. The second section focuses on the legal provisions governing the organization of the Council of State in both Iraq and France. Lastly, the third section delves into a detailed analysis of the organizational structure of the Iraqi State Council.

One of the main considerations that led us to conduct research on the Federal Supreme Court's oversight over the discretionary power of the legislator in Iraq is the presence of the court itself. The court is considered binding and plays a crucial role in protecting and preserving the Constitution through constitutional oversight of laws and interpretation of constitutional texts. Another important role entrusted to the court is to ensure the preservation of the federal and democratic nature of the state. As the constitution is the supreme law in the country, it establishes public authorities, defines their jurisdictions, and guarantees the rights and freedoms of individuals. The legislative authority, when enacting laws, is subject to various controls and restrictions. These restrictions can be formal, related to the external legitimacy of the law, or they can be objective, concerning the content of the legislation. One of the findings made by the two researchers is that the authority of the legislator differs depending on the context. It can expand or contract based on the level of binding and the extent of substantive restrictions imposed by the constitution.