Univerisity of QomComparative Studies on Islamic and Western Law2476-42134320171122An Analysis of the Semi-Liberal System in the Criminal Law of Iran and France:
With an Approach toward its Jurisprudential FoundationsAn Analysis of the Semi-Liberal System in the Criminal Law of Iran and France:
With an Approach toward its Jurisprudential Foundations138119610.22091/csiw.2018.3221.1387FARuhollahAkramiAssistant Professor, Department of Criminal Law and Criminology, Faculty of Law, University of Qom0000-0002-4129-7520FarzanehSeifallah PourMA in Criminal Law and Criminology, Faculty of Law, University of Qom.Journal Article20170417The semi-liberal system is one of the institutions providing the opportunity of social activities for the prisoners to work outside the prison in order to reduce the harmful effects of imprisonment and facilitate the effective return to society after spending their conviction period. Despite the fact that the origin of the institution traces back to the system of gradual or Irish imprisonment in France, its adoption in line with the principle of applying the minimum imprisonment in the Islamic criminal law on the one hand, and its conformity with the doctrine of the religious teachings regarding the opportunity to work out of the prison on the other, provoked the legislator in 2013 to establish this French institution in the penal code of the country. In the present paper, through a descriptive-analytic method, it is attempted to study the status of the semi-liberal system in two systems of Iranian and French criminal law concurrently in order to identify the advantages and disadvantages of each one by means of demonstrating the existing similarities and differences.The semi-liberal system is one of the institutions providing the opportunity of social activities for the prisoners to work outside the prison in order to reduce the harmful effects of imprisonment and facilitate the effective return to society after spending their conviction period. Despite the fact that the origin of the institution traces back to the system of gradual or Irish imprisonment in France, its adoption in line with the principle of applying the minimum imprisonment in the Islamic criminal law on the one hand, and its conformity with the doctrine of the religious teachings regarding the opportunity to work out of the prison on the other, provoked the legislator in 2013 to establish this French institution in the penal code of the country. In the present paper, through a descriptive-analytic method, it is attempted to study the status of the semi-liberal system in two systems of Iranian and French criminal law concurrently in order to identify the advantages and disadvantages of each one by means of demonstrating the existing similarities and differences.https://csiw.qom.ac.ir/article_1196_20b3ab7c984605eb76bb6af8bb42d95d.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42134320171122Right to Referendum in the Constitution of the Islamic Republic of Iran and International Human Rights InstrumentsRight to Referendum in the Constitution of the Islamic Republic of Iran and International Human Rights Instruments3966113510.22091/csiw.2018.2833.1313FAAlirezaDabirniaAssistant Professor, Department of Public Law, Faculty of Law, University of Qom.0000-0001-7259-5427AzamTaleb NajafabadyThe University of Qom
Faculty of Law
public lawJournal Article20170213Right to sovereignty of the people is emphasized and its exercise through free and fair elections is foreseen in many international human rights instruments. One of the safest ways to ensure the sovereignty of the people is to recognize the right to referendum so that the legitimacy of any political system is assessed by the quality of holding elections and referendum. In a human rights approach, the referendum cannot be interpreted in such a way that limits the initiative of people to exercise their right to self-determination. Considering the acceptance of Islam by the Iranian nation, the foundations of governance and the way to exercise it in the system of Islamic Republic of Iran is determined in accordance with the religious and cultural teachings of the society. The Iranian Constitution, in numerous articles, has introduced the right to sovereignty as a Divine right and has regarded it as a right belonging to the nation in order that the right to participate in elections and referendum is recognized as a fundamental right in the constitutional law of Iran. Many of the examples of human rights and methods of establishing the sovereignty of the nation are not only recognized in the Constitution of the Islamic Republic of Iran, but also the existence of the Islamic Republic of Iran and the Constitution is exclusively originated from the people's votes. <br /><strong> </strong>Right to sovereignty of the people is emphasized and its exercise through free and fair elections is foreseen in many international human rights instruments. One of the safest ways to ensure the sovereignty of the people is to recognize the right to referendum so that the legitimacy of any political system is assessed by the quality of holding elections and referendum. In a human rights approach, the referendum cannot be interpreted in such a way that limits the initiative of people to exercise their right to self-determination. Considering the acceptance of Islam by the Iranian nation, the foundations of governance and the way to exercise it in the system of Islamic Republic of Iran is determined in accordance with the religious and cultural teachings of the society. The Iranian Constitution, in numerous articles, has introduced the right to sovereignty as a Divine right and has regarded it as a right belonging to the nation in order that the right to participate in elections and referendum is recognized as a fundamental right in the constitutional law of Iran. Many of the examples of human rights and methods of establishing the sovereignty of the nation are not only recognized in the Constitution of the Islamic Republic of Iran, but also the existence of the Islamic Republic of Iran and the Constitution is exclusively originated from the people's votes. <br /><strong> </strong>https://csiw.qom.ac.ir/article_1135_aa25daebde9acbd2c5929bfa34290db0.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42134320171122A Comparative Study of Obtaining Illegal Property and Illegal Obtaining of the Property in Islamic and Western LawA Comparative Study of Obtaining Illegal Property and Illegal Obtaining of the Property in Islamic and Western Law6792119710.22091/csiw.2018.2080.1209FAMansourRahmdelAssistant Professor of Criminal Law and Criminology, Faculty of Law, Islamic Azad University, Central Branch of TehranJournal Article20170517In the Iranian legal system both terms of obtaining illegal property and illegal obtaining of the property are used. Since the adoption of the Act on Aggravating the Punishment of the Perpetrators of Bribery, Embezzlement and Fraud (hereinafter AAPPBEF) in 1988, utilization of the first phrase has become more common. This is due to the fact that the Legislator, in particular in article 2 of the AAPPBEF, has employed the phrase "illegitimate method of obtaining". Undoubtedly, it refers to illegal obtaining of the property. Presumably, this means that the property is legitimate, but the way through which it is obtained is illegitimate. What is the criterion for illegitimacy? Does it mean that if the way to obtain a property is legitimate, the act would not be regarded as a crime? Does it mean that if article 2 refers to the way of obtaining the property, it is possible to obtain an illegitimate property by means of a legal way and the act is not of a criminal nature? It seems that the Legislator considers the case from two viewpoints. First, the illegitimate property may be obtained through a legitimate or an illegitimate way. Second, the legitimate property may be obtained legitimately or illegitimately. Under legal systems of Germany, UK and Us, the aforementioned crimes do not exist and the related acts are criminalized as theft or fraud. In Islamic law, the unlawful ownership has been discussed. Although there is a difference in describing the act between Islamic law and western law, substantially both of them acknowledge the prohibition of obtaining property through illegitimate and illegal means. The present paper, using an analytical method, considers the different aspects of the case. <br /> In the Iranian legal system both terms of obtaining illegal property and illegal obtaining of the property are used. Since the adoption of the Act on Aggravating the Punishment of the Perpetrators of Bribery, Embezzlement and Fraud (hereinafter AAPPBEF) in 1988, utilization of the first phrase has become more common. This is due to the fact that the Legislator, in particular in article 2 of the AAPPBEF, has employed the phrase "illegitimate method of obtaining". Undoubtedly, it refers to illegal obtaining of the property. Presumably, this means that the property is legitimate, but the way through which it is obtained is illegitimate. What is the criterion for illegitimacy? Does it mean that if the way to obtain a property is legitimate, the act would not be regarded as a crime? Does it mean that if article 2 refers to the way of obtaining the property, it is possible to obtain an illegitimate property by means of a legal way and the act is not of a criminal nature? It seems that the Legislator considers the case from two viewpoints. First, the illegitimate property may be obtained through a legitimate or an illegitimate way. Second, the legitimate property may be obtained legitimately or illegitimately. Under legal systems of Germany, UK and Us, the aforementioned crimes do not exist and the related acts are criminalized as theft or fraud. In Islamic law, the unlawful ownership has been discussed. Although there is a difference in describing the act between Islamic law and western law, substantially both of them acknowledge the prohibition of obtaining property through illegitimate and illegal means. The present paper, using an analytical method, considers the different aspects of the case. <br /> https://csiw.qom.ac.ir/article_1197_a7eb44a61ba91aa07e622b5b218519b7.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42134320171122International Rights and Obligations of Governments Resulting from Revolution: With a View on Islamic AwakeningInternational Rights and Obligations of Governments Resulting from Revolution: With a View on Islamic Awakening93124119810.22091/csiw.2018.3339.1413FASeyed YaserZiaeeAssociate Professor, Department of International Law, Faculty of Law, University of QomJournal Article20170206Revolution or insurrection as a social phenomenon has been the subject of international law in some respects. Although revolution and suppression of revolution is not prohibited in international law, in certain forms of government including those based on colonialism, occupation and apartheid, the people's uprising is recognized. An old and unstable stream is evident in the practice of some states as to the recognition of illegitimacy of governments breaching human rights and humanitarian laws and undemocratic governments. The revolutionist movement may be recognized as a belligerent, the representative of the people or a government in exile. In case of being premature and against de jure recognition of the central government, this recognition would be amounted to interference in internal affairs of the state. Becoming successful, the revolution would be faced with the subject of succession to international treaties, international debts and international responsibility. While less doubt exists regarding the succession of governments resulting from revolution to international treaties and international responsibility, there are different practices and views over the succession to international debts. In the event of unsuccessfulness of the revolution, international responsibility of revolutionists would not be transmitted to the central government on the ground of <em>force majeure</em>. In the revolutions occurred in the region called Islamic Awakening in countries such as Tunisia, Egypt, Libya, Bahrain, Syria and Yemen, there is no practice supportive of the doctrine of illegitimacy of undemocratic regimes. As with succession, only the practice of Libyan revolution in support of doctrine of no-obligation in odious debts could be seen.. <br /> Revolution or insurrection as a social phenomenon has been the subject of international law in some respects. Although revolution and suppression of revolution is not prohibited in international law, in certain forms of government including those based on colonialism, occupation and apartheid, the people's uprising is recognized. An old and unstable stream is evident in the practice of some states as to the recognition of illegitimacy of governments breaching human rights and humanitarian laws and undemocratic governments. The revolutionist movement may be recognized as a belligerent, the representative of the people or a government in exile. In case of being premature and against de jure recognition of the central government, this recognition would be amounted to interference in internal affairs of the state. Becoming successful, the revolution would be faced with the subject of succession to international treaties, international debts and international responsibility. While less doubt exists regarding the succession of governments resulting from revolution to international treaties and international responsibility, there are different practices and views over the succession to international debts. In the event of unsuccessfulness of the revolution, international responsibility of revolutionists would not be transmitted to the central government on the ground of <em>force majeure</em>. In the revolutions occurred in the region called Islamic Awakening in countries such as Tunisia, Egypt, Libya, Bahrain, Syria and Yemen, there is no practice supportive of the doctrine of illegitimacy of undemocratic regimes. As with succession, only the practice of Libyan revolution in support of doctrine of no-obligation in odious debts could be seen.. <br /> https://csiw.qom.ac.ir/article_1198_0039f3c44044181a111b5816458639cc.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42134320171122Studying the Concept of Numerus Clausus of Property Rights: A Comparative Study of French, German, Spanish and Islamic Legal SystemsStudying the Concept of Numerus Clausus of Property Rights: A Comparative Study of French, German, Spanish and Islamic Legal Systems125150120910.22091/csiw.2018.2726.1298FAJalilGhanavatiAssociated Professor, Department of Private Law, Faculty of Law, Farabi College, University of TehranPouriaShirkhaniPhD Candidate in Private Law, Faculty of Law, Farabi College, University of Tehran.Journal Article20170418Numerus Clausus<em>, </em>in the law of property, means that private individuals can only use the forms which the Legislator has previously specified in the field of rights in rem and have no authorization to create new forms of such rights. The attitudes of legal systems toward the said rule are not of a similar character. While some countries such as Germany by no means grant permission to private individuals to breach <em>Numerus Clausus, </em>some other legal systems such as Spanish and Islamic ones have accepted the <em>Numerus Apertus </em>system. In this regard, French legal system is considered as the middle approach of these two viewpoints. Although the primary principle in this country is that property rights are limited to those set forth in law, under some circumstances the individuals can create rights of an in rem nature.Numerus Clausus<em>, </em>in the law of property, means that private individuals can only use the forms which the Legislator has previously specified in the field of rights in rem and have no authorization to create new forms of such rights. The attitudes of legal systems toward the said rule are not of a similar character. While some countries such as Germany by no means grant permission to private individuals to breach <em>Numerus Clausus, </em>some other legal systems such as Spanish and Islamic ones have accepted the <em>Numerus Apertus </em>system. In this regard, French legal system is considered as the middle approach of these two viewpoints. Although the primary principle in this country is that property rights are limited to those set forth in law, under some circumstances the individuals can create rights of an in rem nature.https://csiw.qom.ac.ir/article_1209_30904bc75f7af43f5af6fc6b625e6d68.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42134320171122Dation in Payment: A comparative Study of Islamic Jurisprudence and French LawDation in Payment: A comparative Study of Islamic Jurisprudence and French Law151180112910.22091/csiw.2018.3064.1353FAMahmoudKazemiAssociate Professor, Department of Private Law, Faculty of Law and Political Sciences, University of TehranAbolfazlShahinMA in Private Law, Faculty of Law and Political Sciences, University of Tehran.Journal Article20170306The promisor, in fulfilling his /her obligation, can deliver a property rather than the object of the obligation to the promisee with his /her consent, hereby the obligation would be fulfilled and he would be discharged. This institution is called "dation in payment" which is distinguished from "substitution of the obligation". There is no provision regarding the conditions, nature and rules of this legal institution in Iranian Civil Code. In contrast, there are many discussions in French law and Common Law system in this regard. In the present paper, it is attempted to investigate the condition of realization, legal nature, rules and effects of this institution in Iranian legal system and Islamic jurisprudence through a comparative study with French legal system and Common Law. The result of the study demonstrates that the intention to fulfill, agreement, transfer and delivering a property different from the object are the requirements for the realization of "dation in payment" that share the same nature of fulfilling the obligation. However, it is distinguished from the ordinary fulfillment of the obligation in terms of conditions, rules and effects and should be considered a specific form of the latter.The promisor, in fulfilling his /her obligation, can deliver a property rather than the object of the obligation to the promisee with his /her consent, hereby the obligation would be fulfilled and he would be discharged. This institution is called "dation in payment" which is distinguished from "substitution of the obligation". There is no provision regarding the conditions, nature and rules of this legal institution in Iranian Civil Code. In contrast, there are many discussions in French law and Common Law system in this regard. In the present paper, it is attempted to investigate the condition of realization, legal nature, rules and effects of this institution in Iranian legal system and Islamic jurisprudence through a comparative study with French legal system and Common Law. The result of the study demonstrates that the intention to fulfill, agreement, transfer and delivering a property different from the object are the requirements for the realization of "dation in payment" that share the same nature of fulfilling the obligation. However, it is distinguished from the ordinary fulfillment of the obligation in terms of conditions, rules and effects and should be considered a specific form of the latter.https://csiw.qom.ac.ir/article_1129_7517d28d8022c1138c6f64a7dd4874d6.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42134320171122The Domain of the Ownership of Space and Place in Law of Islam and the West: With Emphasis on the Jurisprudential Views of Imam Khomeini (RA)The Domain of the Ownership of Space and Place in Law of Islam and the West: With Emphasis on the Jurisprudential Views of Imam Khomeini (RA)181208121010.22091/csiw.2018.3120.1366FAJamshidMirzaeiAssistant Professor, Department of Law, Islamic Azad University, Branch of Khorram AbadAbdolsaeedShojaeiFaculty Member at Payam-e-Nour University Branch of RamshirJournal Article20170218One of the essential needs of human societies in contemporary era is the appropriate exploitation of land and its attachments. "Space" and "place" have always been the subject of challenge in Islamic jurisprudence and contemporary legal systems. In spite of the acceptance of subordinate ownership, its domain is controversial and has been followed by conflict in private and public rights. The elder Jurists consider exclusivity, absoluteness and permanency to be the fundamental characteristics of property rights. Accordingly, they have claimed a consensus on the boundless territory of space and the owner of the land is the owner of its space from above the ground to vacuum of space, and under the ground to the depths of the land. Many legal systems, influenced by this point of view, have enacted and codified rules and regulations. However, the needs of industrial societies and the expansion of urbanization and the necessity of urban development, such as the construction of subways and underground tunnels, the necessary drilling to access energy resources and the transmission of power transmission networks and monorail lines and aerial transit has led to more intense conflict in and interference with public and private rights. In this regard, despite the numerous views and opinions as to the negation of ownership, restriction in ownership and common manipulation of space and place, Imam Khomeini as one of the prominent jurisprudents who has accepted guardianship and governance simultaneously, has declared the subordination of land and air to personal lands to the extent of customary needs and possession of the surplus to "public property", and has brought about the combination of the two rights.One of the essential needs of human societies in contemporary era is the appropriate exploitation of land and its attachments. "Space" and "place" have always been the subject of challenge in Islamic jurisprudence and contemporary legal systems. In spite of the acceptance of subordinate ownership, its domain is controversial and has been followed by conflict in private and public rights. The elder Jurists consider exclusivity, absoluteness and permanency to be the fundamental characteristics of property rights. Accordingly, they have claimed a consensus on the boundless territory of space and the owner of the land is the owner of its space from above the ground to vacuum of space, and under the ground to the depths of the land. Many legal systems, influenced by this point of view, have enacted and codified rules and regulations. However, the needs of industrial societies and the expansion of urbanization and the necessity of urban development, such as the construction of subways and underground tunnels, the necessary drilling to access energy resources and the transmission of power transmission networks and monorail lines and aerial transit has led to more intense conflict in and interference with public and private rights. In this regard, despite the numerous views and opinions as to the negation of ownership, restriction in ownership and common manipulation of space and place, Imam Khomeini as one of the prominent jurisprudents who has accepted guardianship and governance simultaneously, has declared the subordination of land and air to personal lands to the extent of customary needs and possession of the surplus to "public property", and has brought about the combination of the two rights.https://csiw.qom.ac.ir/article_1210_b2b4a5aac1cffbd75b3efc6b41c95edb.pdf