نشریه قضاوت
پیاپی 116 (زمستان 1402)

Civil law scholars primarily focus their efforts on interpreting and analyzing the provisions of the Civil Code. The Iranian Civil Code is based on heterogeneous foundations. Some of its provisions are derived from the French Civil Code and influenced by Roman law concepts, while others are based on Imamiyyah jurisprudence, and some are inspired by Swiss law. Due to these varied foundations, legal scholars have provided different interpretations of the Civil Code. Some initially praised and favored the French general theory of obligations, believing that Imamiyyah jurisprudence and the Iranian Civil Code also supported this theory, and they interpreted the law accordingly. Another group admired the general theory of obligations from German and Swiss law, and, despite their unfamiliarity with Islamic jurisprudence, considered it less effective. Others, recognizing the differences in the foundations of the Civil Code and the theory of obligations, pointed out the varying outcomes of these two approaches, explaining the numerous contradictions in the Civil Code based on these differences. Some Islamic jurists, while acknowledging the acceptance of the theory of obligations in Islamic jurisprudence, simply identified certain advantages of the Islamic theory of obligations over its Western counterpart. It appears that Imamiyyah jurisprudence and the Iranian Civil Code fundamentally accept the discourse of ownership, or in other words, the theory of ownership, and have based various provisions on it. Within the scope of the theory of ownership, the source of commutative contracts is considered the transfer of ownership, and viewing them as obligations is fundamentally incompatible with Islamic legal principles. Additionally, sources of involuntary liability are analyzed based on ownership rather than obligation or responsibility. The improper borrowing of provisions from the French and Swiss Civil Codes and Islamic law, and the fundamental differences between them, have resulted in numerous contradictions. Given the intent of the drafters of the Civil Code to align it with Imamiyyah jurisprudence, the resolution to these conflicts lies in the correct and principled adoption of legal provisions from this rich jurisprudence through appropriate use of comparative studies.

Undoubtedly, the rules governing civil enforcement in legal systems aim to fully realize rights, ensuring that the entitled party receives their due. In terms of enforcement, efforts should be made to facilitate effective execution of judgments, allowing the claimant to obtain their rights in the shortest possible time. Effective enforcement of a court ruling must not be confused with unlawful execution; while swift enforcement is important, the dignity of the defendant must also be preserved. Accordingly, enforcement laws include provisions regarding insolvency and exemptions from debt. Following amendments to Article 10 of the amended law on the formation of general and revolutionary courts, Article 34 of the amended regulation, and the approval of guidelines for organizing and expediting civil enforcement, Section "H" of Article 18 of the guidelines introduces the concept of prohibition from services in the context of enforcement. This paper uses a descriptive-analytical method and library resources to explore the meaning of prohibiting a defendant from services as outlined in the guidelines, and whether the jurisprudential and legal system of Iran accepts this measure as an effective means of enforcing court rulings. The findings indicate that, firstly, this measure inherently functions as a penalty requiring legislative action by the parliament. Secondly, its implementation must respect human dignity. Thirdly, it should not result in the civil death of the defendant.

It can be confidently stated that Iran's aviation industry has suffered the most from the unilateral sanctions imposed by the United States, while these sanctions contradict specific international regulations that other sanctioned industries lack such legal backing. Most writings and arguments presented to demonstrate the illegitimacy of the sanctions against Iran's aviation industry have thus far centered around general issues such as human rights violations and threats to human safety. However, the specific rules of international air law provide the best foundation for filing an independent complaint against the United States, having been utilized by other countries in similar matters. These rules include: the contradiction of the sanctions with the international characteristics of aviation regulations and the condemnation of the extraterritorial application of national laws concerning non-American entities; incompatibility with the development of international civil aviation; incompatibility with the prohibition of the misuse of civil aviation; violation of the principle of equality of opportunities in international civil aviation; and, ultimately, a breach of aviation safety. Furthermore, the International Civil Aviation Organization (ICAO), as a dedicated forum for resolving disputes in civil aviation, offers unique capacity regarding jurisdiction and procedures for filing complaints that is not found in other sanction-related matters. This article, after reviewing the unsuccessful efforts to lift the sanctions under the Joint Comprehensive Plan of Action (JCPOA), examines the aforementioned substantive aspects and the proper process for filing a complaint in the specialized forum of ICAO.

The lawsuit for proving effective fraud and deceit leading to a conviction is one of the complex and less-explored issues in Iranian judicial practice, which requires a deeper examination due to the intersection of civil and criminal matters. Some courts condition the hearing of such a claim on the resolution of the related criminal complaint, while under the general principles of civil procedure, a civil lawsuit should only be suspended when there is a complete and necessary connection between the two cases. The objective of this paper is to thoroughly investigate the legal position of the lawsuit for proving fraud and deceit within the Iranian legal system, with a comparative view of French civil procedure. The research method employed is descriptive-analytical, utilizing library resources and examining laws, regulations, judicial precedents, and opinions of legal scholars to analyze the concepts and provide legal solutions for addressing the ambiguities surrounding this lawsuit. Furthermore, the study conducts a comparative analysis between the Iranian and French legal systems concerning fraud and deceit cases, aiming to present a comprehensive and accurate approach for appropriately distinguishing and handling civil and criminal claims related to fraud and deceit.

Today, stock markets are considered the pulse of the global economy. However, even minor disruptions can lead to turmoil in these markets and result in the movement of vast amounts of money and credit. Therefore, the use of various financial instruments to reduce and manage risk can play a crucial role in enhancing the efficiency of capital markets. One of the most important financial instruments for risk reduction and boosting capital markets is "options." Options were first officially and systematically used in the Chicago Stock Exchange and later adopted by most major and advanced exchanges worldwide. Given the legal and jurisprudential feasibility of these instruments within the framework of option contracts, examining the present contract is of particular importance. Although clarifying the legal nature of option contracts alleviates some concerns about their illegitimacy and thus their invalidity, it is not sufficient on its own for justification. Accordingly, this paper not only elucidates the legal nature of the mentioned contract but also critiques the viewpoints of those who argue for its invalidity, such as the belief that it is akin to gambling. Ultimately, we conclude that the contract is legitimate. Furthermore, we examine options within common law and find that, in English and American law, option contracts are viewed as conditional contracts and irrevocable offers. Options function as irrevocable offers based on the consent of both parties and become binding once accepted by one of the parties within the specified timeframe.

One of the significant topics in criminology in recent decades has been the focus on the relationship between gender and delinquency. While early criminologists primarily focused on the personality of offenders, modern criminology emphasizes the study of the role of the offender’s gender in the commission of crimes. Consequently, until now, most theories presented in criminology did not account for half of society, rendering them practically and operationally deficient. However, with the introduction of gender into delinquency studies, the approximate share of each gender in the commission of crimes has been relatively determined. It has become clear that delinquency and deviance, especially in financial and economic crimes, are not exclusively male domains. Women also play a significant role in the actualization of such crimes. The present study, employing library resources and a descriptive-analytical method, seeks to explore the factors contributing to the gender gap and gender convergence. It also examines the accuracy of the general hypothesis that financial crimes are not solely committed by men. Instead, men, due to their broader presence in economic and social spheres, have more opportunities to commit financial crimes. On the other hand, women, owing to technological advancements, shared social roles, job opportunities, education, gender equality, and the reduction of the gender gap, have increased opportunities for committing such crimes.