نشریه پژوهش های تطبیقی فقه، حقوق و سیاست
سال پنجم شماره 4 (زمستان 1402)

Torture is among the most significant crimes against human rights. The basis for the illegitimacy of this act lies in the affront to human dignity. Both the Convention Against Torture and the regulations governing torture in Islamic and Iranian law regard torture as an inhumane act that is contrary to human dignity and honor, and they prohibit its commission. However, there are significant differences in both the definition and the manifestations of torture between Islamic law and international documents. Although the Iranian Constitution prohibits all forms of torture, whether physical or psychological, the Islamic Penal Code only prescribes punishment for physical torture. On the other hand, in Iranian law, certain corporal punishments such as stoning, amputation, and flogging exist, which, according to the Committee Against Torture, are considered forms of torture. In general, any form of oppression, injustice, murder, aggression, violation, torment, harassment, insult, humiliation, degradation, or harm without cause to others or oneself that results in physical or psychological harm or distress is absolutely forbidden in Islam, and the perpetrator is deserving of punishment. Islamic sources such as the Quran, Sunnah, intellect, and consensus clearly indicate the prohibition of torment, torture, and the violation of human dignity.

Over the past decade, the government's reliance on tax revenue has grown significantly, to the extent that disconnecting the general budget from oil revenue and other unstable income sources and replacing them with tax revenue has become a strategic goal of the Islamic Republic of Iran. However, the cumulative effects of more than four decades of a rentier economy reliant on oil revenue, alongside the specific structure of citizen relationships inIran, have raised security concerns regarding the continuation of the current tax policy trajectory. The main question of this article is: In what direction do the current transformations in Iran’s tax system pose security threats? The most important finding of the research is that the increased reliance of the general budget on taxes collected from citizens does not inherently carry a security threat; however, the nature of this process, if accompanied by changes in the structure of citizen-government relationships and structural and discriminatory flaws in the tax system, will lead to security crises for the country in the future. The research method used in this article is analytical-descriptive and based on library studies.

Due to the existence of differences in the validity and invalidity of suspended contracts, the Civil Law has not examined it case by case and has only specified the invalidity of several contracts in a few cases. According to the principle of subrogation, the seller can take any possession of his property, but this principle is limited due to the rule of harmlessness in favor of the primary right of the suspended buyer. The seller may transfer the seller to a third party despite the initial right of the buyer being suspended, and this action of the seller causes a conflict between the two rights, due to the silence of the legislator and the difference in jurisprudence, with descriptive and analytical examination, the results show that by accepting the theory Conveyance as the choice of the will of the parties to the pending transaction, the effect of the conveyance, which refers to the future, causes the shaky ownership of the second buyer to be valid until the realization of the suspension against, but since the realization of the suspension against, the conflicting transaction becomes suspended and irrelevant due to the buyer's preemptive right. The second transaction, the transaction is canceled, and the buyer opposes, in proportion to his ignorance or knowledge of the suspended transaction, in relation to the price and damages (due to the ignorance of the second buyer) to the seller as punitive damages of the seller or only the price (due to the knowledge of the second buyer and the rule of action) refer to the seller as possessing the bad for him.

Cyberspace, characterized by its unique features such as being borderless, has expanded the possibility of norm violations to all corners of the world. The purpose of this study is to examine the imposition of civil liability on multiple causes of harm in cyberspace under Iranian law. The research method is descriptive-analytical, relying on library resources. In Iranian law, given the absence of a specific mechanism for the emergence of civil liability in cyberspace, civil liability can be imposed equally or jointly on multiple causes based on traditional and general civil liability doctrines, particularly considering the element of fault. In the case of multiple successive causes in both cyberspace and the real world, the research findings indicate that, although there are similarities, the principles and elements of civil liability in cyberspace often differ from those in the real world due to the involvement of multiple actors and internet intermediaries. Civil liability for multiple successive causes in cyberspace differs from that in the real world, with the default being the theory of customary cause, while for multiple concurrent causes, the default is shared liability. Regarding judicial practice on the distribution of liability in the case of multiple causes in cyberspace, it can be said that judicial practice distinguishes the distribution of liability in cyberspace depending on the actors involved. For natural persons, the default is customary liability based on fault, while for legal entities and internet intermediaries, the default is strict liability, without the requirement of fault.

The 1967 Outer Space Treaty led to the development of national space programs by certain governments in relation to national space activities. However, the commencement of space activities does not date back solely to this treaty. This treaty is also perceived as a reaction to the space activities of pioneering nations, as legal events are not always the result of a sudden occurrence but can be influenced by previously implemented programs. The program itself is also considered a process aimed at achieving a desired goal. Therefore, on one hand, a government's domestic programs and practices, within the framework of soft law, if widely accepted by other states, can lead to the formation of norms and customary international law. Customary international law, in turn, has the potential to create legal effects according to the provision in Article 38(1) of the Statute of the International Court of Justice. On the other hand, Article 6 of the aforementioned treaty anticipates the space activities of private entities. Given that we are witnessing the involvement of private companies such as SpaceX, under the international responsibility of their respective governments, competing with other states to reap space benefits, the importance of this issue has led the present article to focus on the status of private entities in the space laws and programs of certain governments.

The right to life is one of the most fundamental rights of every human being. Preserving this right for children, who are among the most vulnerable members of society, must be given special attention. However, does this attention have a basis in international institutions? Has Islam, as the most complete religion, considered this right in its teachings and principles? By studying the verses of the Quran and Islamic jurisprudence, it can be understood that the term "right to life" is not explicitly mentioned in Islamic texts. However, considering the severe prohibition and condemnation of killing human beings, especially children, in religious texts, this right and the protection of human life, particularly of children, can be inferred. The Committee on the Rights of the Child has also recognized the right to life as a fundamental principle for children's rights, which must be considered under all circumstances. This article, using a descriptive-analytical approach, not only establishes the right to life of children from the perspective of Islamic jurisprudence and international law but also examines the duties of governments in providing comprehensive protection of children's rights. This includes legislation prohibiting abortion by extending the period of childhood to before birth, the prohibition of the execution of children, the prohibition of torture, and other supportive legislative measures for children.

The study of security is a subject that is both simple and complex; simple in the sense that individuals have an inherent understanding of it, and complex because it encompasses various meanings, dimensions, and elements, some of which remain relatively unexplored. One of the issues within the broader topic of security is economic security, for which the sources and methods of its realization have been a constant topic of discussion. One of the key elements of security is its preservation. This article examines economic security through the lens of Imamiyya jurisprudence using a descriptive method and concludes that jurisprudence pays considerable attention to economic security. It identifies several categories of jurisprudential rules aimed at preserving economic security, which include the following: 1. Rules that prohibit infringement upon the economic security of individuals. 2. Rules that emphasize the economic security of individuals. 3. Rules that limit the economic security of individuals. 4. Rules that pertain to the necessity of compensating damages in the event of an infringement on the economic security of individuals. This article briefly outlines these rules and seeks to achieve economic security through adherence to these jurisprudential rules within an Islamic society.

The extraordinary power invested in the judiciary necessitates a high standard of conduct, a commitment to upholding the law, and performing duties in an impartial manner. Appropriate behavior both within and outside the courtroom is a fundamental requirement of judicial duty. As judicial power increases, there is a corresponding need to adhere to clear ethical standards. When there are violations of laws and behavioral standards, accountability and disciplinary proceedings are essential. The Iranian legislator, through the "Law on Supervision of Judges' Behavior," seeks to regulate judges' conduct by monitoring professional behavior and imposing preventive and strict disciplinary sanctions. However, in many instances, there are still legal ambiguities that severely question the independence of judges. In the United States, at both the federal and state levels, criminal policy—considering higher-level documents and adherence to international standard principles—addresses the criminalization and disciplinary response to judicial misconduct. During the investigation of judicial misconduct, the principle of judicial independence is respected, and efforts are made to maintain public trust in the judiciary by ensuring transparency in proceedings and avoiding confidentiality in the trial phase. It is observed that U.S. criminal policy in dealing with allegations of misconduct by federal judges, especially Supreme Court judges (but not regional judges), tends to be lenient and overlook certain issues. However, at the state level, stricter oversight prevails, and more diverse responses are implemented. In many cases where the misconduct is minor, the matter is addressed informally and privately. This approach could be considered by Iranian legislators. Additionally, adopting disciplinary sanctions with a reconciliatory approach rather than merely a punitive one in dealing with offending judges could be a positive step forward.

It has not been more than a few decades since the creation of timeshare, and for this reason, it has not been mentioned in Persian law books as far as it has been investigated. Time sharing (sharing time) or selling time is a new contract that was formed based on the needs and desires of contemporary people. In confirming the legitimacy and necessity of mahayat, there are authentic documents from the book, tradition, rulings of reason, and intellectual foundations. One of the basic pillars of mahayat is the existence of distribution in ownership or usufruct. This division preceded the existence of a state of "sharing of rights" and its subject is always common. This feature is the distinguishing feature of this institution from similar legal establishments such as time sharing. The issue of dividing the assets must be viable against the profit. Regarding the nature of the assets, the theory of peace is more powerful.

The concept of judicial presumption, meaning the tool for presenting specific evidence in each case, is not only beyond the drafting and specific legal framework of each country but also an external reality that each legal system must address to ensure comprehensiveness and the assurance of justice. Naturally, the differences in legal traditions across various legal customs mean that different legal systems approach a single issue with significant differences. In this paper, we have examined the approach of the legal systems of the Islamic Republic of Iran and the United States of America to this concept. First, we discussed the generalities of comparative studies, of which this study is a derivative. Then, we presented the existing judicial practices regarding this issue in both legislative systems. We identified those fundamental legal concepts that have reciprocal effects with the concept of judicial presumption and examined them in the roots of each legal system with an approach to fundamental events and thoughts related to these concepts. Finally, we addressed the question of whether, despite the major differences in the legal approach to judicial presumptions, there can be seen strands of similarity in more fundamental adjacent concepts.

The Ghaznavids (1206-962 AD), a Turkic dynasty that ruled vast parts of eastern Iran, are named after their capital and the formation of their state in Ghazna (Ghaznin/Ghazni, located in present-day Afghanistan). After Sebüktigin (ruled 996-977 AD), the primary founder of the Ghaznavid state, his son Mahmud (ruled 1030-997 AD), who, by defeating the last Samanid ruler and conquering Sistan, Turkestan, Khwarazm, Makran, Sistan, and Kerman, elevated the state to its peak of glory. The Abbasid caliph al-Qadir (caliphate 1031-991 AD) confirmed his rule and granted him the title "Yamin al-Dawla." Mahmud’s victorious campaigns in India brought him immense wealth, power, and prestige and contributed to the spread of Islam and the flourishing of the Persian language in the Indian subcontinent. Due to factors such as the Ghaznavid rulers' religious zeal, the dominance of Sunni schools of thought—particularly the Hanafi school—and the prevalence of Ash'ari thought, along with the patronage of the Abbasid caliphate and the flourishing of Sufism, Islamic sciences such as jurisprudence, Hadith studies, Qur'anic knowledge, and literary sciences experienced significant growth. In the religious sphere, non-Sunni sects and religions, such as the Shiites, did not enjoy favorable conditions. Architecture and arts such as goldsmithing, inlaying, and the production of exquisite metalware, as well as industries like textile weaving and carpet making, saw remarkable progress during the Ghaznavid era

The legislator considers transactions with ordinary documents as valid and legitimate, but with respect to immovable property, this validity is conditional upon the formal registration process. Based on this, a bill was passed in the Parliament that mandates the formal registration of immovable property transactions, which remains a subject of dispute between the Parliament and the Guardian Council. One of the challenges associated with this issue is the increase in forgery and fraud related to documents. This study is applied in nature and has been conducted using a documentary method by examining laws and credible sources, with the information analyzed descriptively and analytically. As a result, the bill on mandatory registration of immovable property transactions was introduced in the Parliament on January 2, 2017 and approved on May 20, 2020. However, after the bill was sent to the Guardian Council for approval, it faced objections. Alongside the significance, validity, and evidentiary power that document registration brings, it also has functions such as promoting ethical and social well-being in society, ensuring transaction transparency, and reducing litigation in judicial courts.

Rescission, as a means of dissolving binding contracts, has proven effective within Iran's banking system, with its primary application being the rescission of properties acquired by banks. Currently, in implementing Article 16 of the 2015 Act on the Removal of Barriers to Competitive Production and the Promotion of the Country’s Financial System, which mandates that banks annually divest at least 33% of their surplus assets, and as a consequence of this legal provision, the directive on the divestment of surplus assets of credit institutions was enacted by the Money and Credit Council and communicated to the banking network through the Central Bank of the Islamic Republic of Iran. Based on Article 2 of this directive, which specifies that the divestment of surplus assets of credit institutions should be conducted through auctions, it has been stated that bank-owned properties, per Clause "b" of Paragraph (3-1) of Article (1) of the directive, are classified as surplus assets. Consequently, the sale of these assets must occur via auction. Due to these enacted regulations, many banks have often evaded accepting requests for the rescission of owned properties to increase profits, while others remain hesitant about executing property rescissions. In light of these issues, this article seeks to examine the legal and jurisprudential foundations, as well as the status and functionality of rescission in Iran’s banking system, relying on Islamic jurisprudence, banking practices, and relevant laws and regulations, to offer practical and applicable solutions