The Exclusionary Rule in the Criminal Law of Muslim Countries and Common Law
Ruhollah
akrami
Associate professor of the Department of Criminal Law and Criminology, Faculty Of Law, University of Qom.
author
text
article
2021
per
Proof of criminal cases is based on the evidence obtained in the criminal process. In this regard, the rules of procedure may sometimes be violated in this process, in which case the legal validity of the obtained evidence has become one of the most important challenges of litigation proof systems. In the present article, through a descriptive-analytic method, this issue has been studied in the two countries under the legal system of Common Law, England and Canada, in comparison with the approach of Islamic countries. The study demonstrates that in some countries, such as Turkey, a strict theory of formal exclusion has been adopted, which leads to the absolute invalidity of such evidences. Conversely, in other systems, such evidences are valid, unless, in accordance with the substantial exclusion theory, as in Iraq, the judge finds that substantive laws have been violated, or, like Iran, consistent with the textual exclusion theory, the statute stipulates the invalidity of evidence. Meanwhile, some countries, such as Algeria, in a position analogous to the United Kingdom and Canada, have taken combined positions from the two perspectives of substantial and textual exclusion. It seems that according to the criteria of Islamic jurisprudence, taking into account certain standards, such evidences can be effectless in the judicial system based on authorized judges who are not fully qualified.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
1
40
https://csiw.qom.ac.ir/article_1843_ce50c29d1980e7eacef241eb812b81e8.pdf
dx.doi.org/10.22091/csiw.2021.6676.2026
The Concept of Voidable Contracts under English, French, Iranian and Islamic Law
Mohammad Ali
Ansaripour
Associate Professor, Department of Private Law, Faculty of Law and Political Science, University of Tehran .
author
Majid
Sohani
PhD Student in Private Law, Alborz College, University of Tehran.
author
text
article
2021
per
One kind of contracts is voidable contract. This contract is generally divided into two groups. The first one which is the most important one is a contract that has been concluded validly but it can be invalidated and effectless by the court. In this case, avoidance is used in its precise meaning. The second one is a contract that can be avoided by one of the parties to the contract or a third party. Voidable contracts have been generally accepted in English and French law but some have claimed that a voidable contract in its precise meaning does not exist in Iranian law. In addition, the concept, scope, bases and effects of voidable contracts have not been clarified in Iranian law. In judicial decisions the concept of voidability has a more ambiguous position because the term ibtal (avoidance) has not been employed in its proper place and this fact shows that this concept is still unclear in the judicial decisions. This article, through a descriptive-analytic method, examines the concept of voidability in English, French and Iranian law as well as Islamic law and concludes that, in addition to English and French law, different kinds of voidable contracts with different effects exist in Iranian and Islamic law and it is necessity to deal with the bases of voidable contracts in which avoidance has been used in its precise meaning and has been referred to in certain Iranian statutes and in Islamic law.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
41
66
https://csiw.qom.ac.ir/article_1767_9b52f2f825bf054fd23675b5964384b3.pdf
dx.doi.org/10.22091/csiw.2021.5984.1908
A Comparative Study of Civil Liability for Defective Information of Written Works in Law of Iran and Common Law
Seyed Ali
Khazaei
Assistant Professor, Department of Private Law, Faculty of Law and Political Science, Kharazmi University .
author
yusuf
khalaj
Ph. D Candidate in Private Law, Faculty of Law and Political Science, Kharazmi University.
author
text
article
2021
per
Nowadays, theories, new ideas and generally speaking information have a very important role in cultural, economic and political life of human beings. Most of the books and magazines consist of significant and broad information that they may be defective. In fact, they are goods that due to defective of ambiguous information, may be considered as defective and cause damage to their readers or users. In common law system, claims against authors and publishers for the defect of information of written works are examined on the basis of liability for the defect of goods. In our legal system, despite the existing ambiguities specifically in Consumers Protection Rights Act, applying the standards of the liability for defect of goods and acceptance of strict liability arising from the defects of written works can be an appropriate solution in solving the problems and disputes that have been occurred due to injuries caused to readers and other consumers of these works resulting from their defect. In Imamiyah jurisprudence, provoking some jurisprudential rules including ‘To whom there is benefit, there is damage to”, the liability can be imposed on authors and publishers without proving the negligence. The method of the present study is descriptive-analytic and the method of collecting materials is a library-based one.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
67
98
https://csiw.qom.ac.ir/article_1766_6b285a5e82ee2d585eed6ce0e593e315.pdf
dx.doi.org/10.22091/csiw.2021.5654.1847
Criticizing Position of Voidable Contract in Law of Iran and Comparing It with Common Law
hamed
khubyari
Ph. D. in Private Law, Faculty of Administrative Science and Economics, of University Isfahan.
author
pooria
razi
Assistant Professor, Department of Law, Faculty of Humanities, Islamic Azad University, Bandar Abbas Branch.
author
text
article
2021
per
Imamiyah jurists and Iranian legal experts have divided contracts into valid and invalid in terms of their effect and often, classified the unauthorized contract under the valid contracts. Comparative studies in recent years have led to the emergence of a new circumstance as voidable contracts in Iranian law. These contracts are considered to be valid and operated by the parties but they are voidable due to reasons such as mistake, duress or operation. Referring to some articles of the Commercial Code and Sea Act, the legal experts though consider the relative refutation to be in contradiction with the general rules of contracts, have still accepted them as a necessary and new establishment in specific cases. The authors, studying the reasons of the relative nullity in common law and comparing it with similar cases in Iranian law through a descriptive-analytic method, have concluded that there is no necessity for discussion of the voidable contracts in Iranian law, common law and Roman-German law and contrary to what is taken certain, the claimed extensions are in line with the general rules of the contracts related to the unauthorized contracts and are justified.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
99
128
https://csiw.qom.ac.ir/article_1770_c8641d9bd231e6697afea31abe5d15b0.pdf
dx.doi.org/10.22091/csiw.2021.5464.1805
A Comparative Study on the Law Governing Political Parties in Islamic Republic of Iran and Germany: Assessment on Legal Status of the Public Sphere
Samaneh
Rahmatifar
Assistant Professor, Department of Law, Faculty off Humanities, Islamic Azad University, Hamedan Branch.
author
text
article
2021
per
The present study aims to determine the status of public sphere in the legal system of Iran through a comparative study on political parties in law of Iran and Germany. Meaningful participation of citizens in public affairs and the originality of politics is dependent on the strength of the public sphere and actions of individuals in it. Political parties are the most efficient entities of the public sphere, and their freedom and role in construction of politics reveals the status of the public sphere in a political society in the best way. The research method is comparative study with inductive approach. The findings indicate that under Iranian law, despite the fact that the Constitution ensures the freedom of parties in a higher level than Germany, in parliamentary enactments the function of political parties is acting within the existing policies, their establishment mechanism is complex, the way to monitor them is mostly approving, a prior and political and monitoring and enforcement are confused. The inductive extension of the findings to the public sphere results that in Iran the public sphere legally lacks strength and its promotion requires the amendment of laws such as Prties Act in oreder to transparency and clarification and consequently restricting the authority of monitoring bodies, guaranteeing the right to association as a citizenship rights and recognition of the citizens participation in policy-making.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
129
154
https://csiw.qom.ac.ir/article_1779_dab8574835c9152c9e1c01c502894c5a.pdf
dx.doi.org/10.22091/csiw.2021.5980.1907
Nationality of Group of Companies in Law of France, EU and Iran
Mehdi
ASHOORI
Assistant Professor, Department of Law, Faculty of Literature and Humanities, Shahr-e-Kord University.
author
Hossein
KAVIAR
Assistant Professor, Department of Law, Faculty of Administrative Science and Economics, University of Arak.
author
Sahar
BAN
MA in Corporate Law, Faculty of Literature and Humanities, Shahr-e-Kord University.
author
text
article
2021
per
The special position of group of companies in international investment is undeniable. This notable position and their deep influence in international investment is such that group of companies plays a role equal to that of states in foreign investment. One of the most challenging discussions around group of companies is their nationality. There are serious disagreements as to whether the group of companies has legal personality and, consequently, nationality. Recognition or non-recognition of the legal personality and nationality of these groups has important and diverse legal implications that need to be examined carefully. These include the rights, obligations and responsibilities of the member companies vis-à-vis the parent company as well as the host country of the subsidiaries. Examining the law of Iran and France it is understood that group of companies lacks legal personality and nationality. In EU there is no unified regulations in this regard, but the case law of EU has taken a double approach toward the subject. This article introduces a pervasive framework for the assessment of the nationality of the group of companies and considers the controversial situation of some well-known company.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
155
184
https://csiw.qom.ac.ir/article_1842_bf1bf3a2e2c47454d9c8ad8a5d2a74e6.pdf
dx.doi.org/10.22091/csiw.2021.6258.1956
Codeshare Agreements from the Prospective of Competition Law: A Comparative Study in Law of Iran, US Law and Law of EU
Ebrahim
Abdipour Fard
Professor, Department of Private Law, Faculty of Law, University of Qom.
author
mohammad
salehi mazanarani
Associate Professor, Department of Private Law, Faculty of Law, University of Qom.
author
kholoood
deriss
Ph.D. Student in Private Law, Faculty of Law, University of Qom.
author
text
article
2021
per
Conclusion of codeshare agreement between international and domestic airlines at first was emerged as a way to advertising, but currently it is used as a strategic approach to gain market share and consequently creating a dominant position for airline services market. One of the legal issues of these agreements is doubt raised about their anti-competitive nature. The results of this research, that is a comparative study of the subject in related legal systems in a descriptive-analytic method, indicate that based on the type of the agreement and its specific characteristics, scope of activity and parties’ share in the market, both aspects-competitive and anticompetitive- are probable in these agreements. Furthermore, although competition law has no clear position as to these types of agreements in various legal systems, legally speaking, such agreements should be investigated case by case and a general rule should not be prescribed for all of their examples.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
185
218
https://csiw.qom.ac.ir/article_1643_17335e09d14420fe46daebf4974c936b.pdf
dx.doi.org/10.22091/csiw.2020.5231.1743
Studying the Theorical Foundations of Fraud on Law & Its Effects in Iran’s Private International Law and Imamiyah Jurisprudence
Mohsen
Ghadir
Assistant Professor, Department of International Law, Faculty of Law, University of Qom.
author
Hossein
kazemi
MA in International Law, Faculty of Law, University of Qom.
author
text
article
2021
per
Misuse of right rule is manipulated in many legal issues from adjacent lands relations to law of contracts and family law. Fraud on the law such as intentional change in dependency’s elements and as a specific use of misuse of right’s general theory has been presented as one of the obstacles in implementing foreign law in private international. Using the conflict settlement rule with the aim of escaping from the competent law fraudulently by one of the litigants suffices to create fraud on law in private international law. There are discussions in Islamic jurisprudence under the title of Hial Al-Riba as well that is notably compatible with the concept of fraud on law in western culture in terms of their foundations. Both religious tricks and fraud on law are obstacles in implementation of foreign law in Islamic jurisprudence and Iranian written law that is based on “no harm” rule and “unlawful direction” theory. This article, applying descriptive-analytic method, after examining the foundations of these two concepts, has dealt with their comparison in terms of religious tricks and finally has concluded that in jurisprudential system, religious tricks cannot be accepted unless in explicit cases and by a narrow interpretation. Furthermore, Iranian law has expressly opposed fraud on law that implies the negative view of the legislator toward fraud on law in such a way that from all of them a general rule namely preventing fraud on law rule can be derived.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
219
244
https://csiw.qom.ac.ir/article_1777_f9b31a8f0ed3fae0ca0a734cfce3cd6c.pdf
dx.doi.org/10.22091/csiw.2021.4443.1580
The Capacities and Shortcomings of Iranian Law and Imamiyah Jurisprudence in Realization of the Doctrine of Right to City in Light of the French Legal Experience: With Emphasis on the Rules of Land Ownership
Razieh
Masoudi Lamraski
Ph. D. Candidate in Private Law, Faculty of Law, Shahid Beheshti University.
author
Seyyed Mohammad
Ghari Seyyed Fatemi
Professor, Department of Public and International Law, Faculty of Law, Shahid Beheshti University.
author
text
article
2021
per
In the doctrine of Right to City, born and developed in France by western thinkers, parts of the rights are referred to as the Right to City: right to public services, right to proper housing, right to green space, etc. Existence of government or public lands and formulation of rules for government intervention for construction and design of urban public spaces like expropriation, quotas, segregation, land use and environmental requirements are necessary to realize these rights. Under the Iranian law, due to the Islamic ideas that formed the bases of the Islamic government, rights similar to those referred to are reflected and several rules are predicted for the enjoyment of these rights by the people. The existence of various specific types of lands under the name of Anfal, public commonalities, public ownership and the Vali-e-Faqih’s extensive authority over lands have been treated as a pretext for the realization of these rights. However, effective participation of citizens has not been taken into consideration in the codification, modification, implementation and supervision of these rights. Therefore, citizens (main beneficiaries) do not participate in determining the provisions, scope and manner of implementation of rights, rather, members of councils or, in some cases, special commissions in which citizens have no role to play, have the decision-making power and there are no effective legal tools to oversee them apart from formal oversight by the Court of Administrative Justice.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
245
278
https://csiw.qom.ac.ir/article_1798_53786726a7ee93b00a2986e6371d1bbd.pdf
dx.doi.org/10.22091/csiw.2021.6385.1980
A Comparative Study of Competitive Rules in Competition Laws of Iran and the European Union
fazlollah
Mousavi
Professor, Department of Public and International Law, Faculty of Law and Political Science, University of Tehran.
author
ٍEnsiye
jadidi
Ph. D. Student in Public International Law, Faculty of Law and Political Science, University of Tehran.
author
text
article
2021
per
According to the laws of Iran and the European Union, competition law can be briefly defined as a set of rules that regulate the relationship between traders and consumers, so as not to create monopoly or abuse of the dominant economic situation. Examining the laws and regulations of Iran and the European Union in the field of competition, it can be said that the common will of the legislator in Iran and the European Union is to enact competition law, combat monopoly and facilitate competition and prevent competition distortion. The purpose of writing this article is to study the rules of competition in the two legal systems of Iran and the European Union. With this explanation that competition law in Iran has a short history, while in the European Union, the issue of competition has been raised since its beginning and has been consolidated over time through the amendment of treaties and judicial procedure. It is worth noting that the establishment of competitive rules in Islamic jurisprudence as one of the sources of the Iranian legal system is precedented and, as the case may be, the competition rules in it are also mentioned. The research method in this article is based on library research and data analysis. In this article, the rules and regulations containing the rules of competition law in Iran and the European Union are enumerated, analyzed and examined in terms of similarities and differences, and finally, suggestions are made to address the challenges facing Iranian competition law.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
8
v.
2
no.
2021
279
312
https://csiw.qom.ac.ir/article_1732_ce0cf7c573aa1e74163078adb094902f.pdf
dx.doi.org/10.22091/csiw.2020.5692.1854