Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 The Concept and Status of Unfair Terms in European Law and the Written Law of Iran: With an Approach to Justice and Fairness in Imamiyah Jurisprudce The Concept and Status of Unfair Terms in European Law and the Written Law of Iran: With an Approach to Justice and Fairness in Imamiyah Jurisprudce 1 34 1348 10.22091/csiw.2019.3327.1410 FA Sayyed Abd Al Mottaleb Ahmadzadeh Bazzaz Assistant Professor, Department of Law, Faculty of Law, Mofid University MAJID REZAEE Assistant Professor, Department of Economics, Faculty of Economics, Mofid University. Sayyed Mohammad Sadegh Ghabooli Dorafshan Ph.D. student of jurisprudence and the principles of Islamic law, Faculty of Theology, Mofid University. 0000-0002-9014-3026 Journal Article 2018 03 13 The unfair terms are one of the most important issues regarding consumer rights and life today cannot be imagined without using various consuming products. Meeting consumer needs is dependent upon the conclusion of contracts that are often associated with provisos. Additionally, the promptness of the societies' economic move and emergence of class gap has led one party to imposing unequal terms and ultimately more or perhaps the absolute domination of one's will to collapse and undermine justice and fairness. European states have always attempted to control such terms. This query, through examining the concept and status of unfair terms in the European and Iranian laws and some of the examples of unfair terns stipulated in Directive No. 93/13 of the European Economic Community and considering the opinions of the Imamiyah jurisprudents as to justice and fairness, has come to this conclusion that given the dispersion of the opinions of Imamiyah jurisprudents regarding justice and fairness, these concepts are not an appropriate tool for controlling unfair contractual terms. In this regard, other jurisprudential grounds such as system disorder, unlawful ownership and impossibility of the terns could be employed. Paying attention to lack of a general rule in Iranian laws in controlling these terms highlights this significant issue. The unfair terms are one of the most important issues regarding consumer rights and life today cannot be imagined without using various consuming products. Meeting consumer needs is dependent upon the conclusion of contracts that are often associated with provisos. Additionally, the promptness of the societies' economic move and emergence of class gap has led one party to imposing unequal terms and ultimately more or perhaps the absolute domination of one's will to collapse and undermine justice and fairness. European states have always attempted to control such terms. This query, through examining the concept and status of unfair terms in the European and Iranian laws and some of the examples of unfair terns stipulated in Directive No. 93/13 of the European Economic Community and considering the opinions of the Imamiyah jurisprudents as to justice and fairness, has come to this conclusion that given the dispersion of the opinions of Imamiyah jurisprudents regarding justice and fairness, these concepts are not an appropriate tool for controlling unfair contractual terms. In this regard, other jurisprudential grounds such as system disorder, unlawful ownership and impossibility of the terns could be employed. Paying attention to lack of a general rule in Iranian laws in controlling these terms highlights this significant issue.

https://csiw.qom.ac.ir/article_1348_aeb54a1ce73595675a52722491098895.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 Studying Iran's Criminal Policy regarding Financing of Terrorism in the Light of International Requirements Studying Iran's Criminal Policy regarding Financing of Terrorism in the Light of International Requirements 35 64 1349 10.22091/csiw.2019.3449.1428 FA Mohammad Ali Hajidehabadi Associate Professor, Department of Criminal Law and Criminology, Faculty of Law, University of Qom null Saeede Khatami Ph. D. Candidate in Criminal Law and Criminology, Faculty of Law, University of Qom. null Journal Article 2018 02 05 Creating horror at global level, terrorism has led governments to counter it extensively. To this end, international organizations combated terrorism through ratification of various conventions and resolutions. The scope of the fight against terrorism became more scopious when tackling the financing of terrorism was taken into account. International law sources, especially the Security Council's resolution 1373, 1999 International Convention for the Suppression of the Financing of Terrorism and The FATF Recommendations, by imposing specific methods in confronting the act of financing terrorism, have pushed countries to fight financing of terrorism increasingly. Currently, the fight against the financing of terrorism in different ways, including the adoption of precautionary measures for the early identification of sources used for the purpose of assisting terrorist operations, as well as taking responsive actions such as punishing perpetrators of terrorist financing and freezing their assets has become an international requirement. The present paper, through applying a descriptive-analytic method, while studying the international requirements in combating financing of terrorism and comparing it with Combating the Financing of Terrorism Act and its executive ordinance, explains the way in which Iran's legal system deals with the financing of terrorism. Thereafter, the article aims at analyzing Iran's criminal policy in countering the financing of terrorism in terms of main ideologies that govern it namely security-oriented versus freedom-oriented criminal policy. Creating horror at global level, terrorism has led governments to counter it extensively. To this end, international organizations combated terrorism through ratification of various conventions and resolutions. The scope of the fight against terrorism became more scopious when tackling the financing of terrorism was taken into account. International law sources, especially the Security Council's resolution 1373, 1999 International Convention for the Suppression of the Financing of Terrorism and The FATF Recommendations, by imposing specific methods in confronting the act of financing terrorism, have pushed countries to fight financing of terrorism increasingly. Currently, the fight against the financing of terrorism in different ways, including the adoption of precautionary measures for the early identification of sources used for the purpose of assisting terrorist operations, as well as taking responsive actions such as punishing perpetrators of terrorist financing and freezing their assets has become an international requirement. The present paper, through applying a descriptive-analytic method, while studying the international requirements in combating financing of terrorism and comparing it with Combating the Financing of Terrorism Act and its executive ordinance, explains the way in which Iran's legal system deals with the financing of terrorism. Thereafter, the article aims at analyzing Iran's criminal policy in countering the financing of terrorism in terms of main ideologies that govern it namely security-oriented versus freedom-oriented criminal policy.

https://csiw.qom.ac.ir/article_1349_c22d5dc81537405b73b9a9b2625321e9.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 A Comparative Study of Crime of Money Laundering under Islamic Jurisprudence, Iranian Law and International Instruments A Comparative Study of Crime of Money Laundering under Islamic Jurisprudence, Iranian Law and International Instruments 65 90 1350 10.22091/csiw.2019.2237.1229 FA Masoud Heidari Assistant Professor Department of Criminal Law and Criminology, Faculty of Humanities and Law, Islamic Azad University, Isfahan (Khorasgan) null Journal Article 2017 06 26 Money laundering is a phenomenon that has been introduced to the world as an organized and transnational crime in recent decades. Resorting the international conventions in this field, the Iranian legislator through adopting the Anti Money-Laundering Act in February 2008, maintained a comprehensive criminal policy as to confronting it. In a simple definition, money laundering is defined as the operation carried out by the perpetrators of crimes in order to legitimate their illegal financial conducts resulting from committing the offences. As with jurisprudential foundations, many ayahs, narrations and jurisprudential rules could be referred to. This crime is a secondary one that means deliberate concealment of the nature and origin of the properties attained from commitment of such offences. The high rate of money laundering at global level, its organized and transnational character and lack of certain victim, have increased the significance of criminalizing this phenomenon in the world as well as in Iran. To this end, a bill is being adopted for combating money laundering in Iran that its final legislative phases has not been passed up to date. There exist numerous international and regional instruments on money laundering most significant of which are 1988 Vienna Convention, 1990 Council of Europe Convention, 1991 European Directive, 2000 Palermo Convention, and 2003 Anti-Corruption Convention. The goal of enactment of these instruments is to making the operation of money laundering an expensive endeavor in order to tighten its field as much as possible. In spite of the partial non-compliance of the legislator in Islamic Republic of Iran' with international practice as regards physical behaviors of money laundering, through an accurate interpretation of the Anti Money-Laundering Act, this conclusion is appeared that there is no difference as to money laundering in Iran and international practice in terms of its conditions and circumstances. Money laundering is a phenomenon that has been introduced to the world as an organized and transnational crime in recent decades. Resorting the international conventions in this field, the Iranian legislator through adopting the Anti Money-Laundering Act in February 2008, maintained a comprehensive criminal policy as to confronting it. In a simple definition, money laundering is defined as the operation carried out by the perpetrators of crimes in order to legitimate their illegal financial conducts resulting from committing the offences. As with jurisprudential foundations, many ayahs, narrations and jurisprudential rules could be referred to. This crime is a secondary one that means deliberate concealment of the nature and origin of the properties attained from commitment of such offences. The high rate of money laundering at global level, its organized and transnational character and lack of certain victim, have increased the significance of criminalizing this phenomenon in the world as well as in Iran. To this end, a bill is being adopted for combating money laundering in Iran that its final legislative phases has not been passed up to date. There exist numerous international and regional instruments on money laundering most significant of which are 1988 Vienna Convention, 1990 Council of Europe Convention, 1991 European Directive, 2000 Palermo Convention, and 2003 Anti-Corruption Convention. The goal of enactment of these instruments is to making the operation of money laundering an expensive endeavor in order to tighten its field as much as possible. In spite of the partial non-compliance of the legislator in Islamic Republic of Iran' with international practice as regards physical behaviors of money laundering, through an accurate interpretation of the Anti Money-Laundering Act, this conclusion is appeared that there is no difference as to money laundering in Iran and international practice in terms of its conditions and circumstances.

https://csiw.qom.ac.ir/article_1350_2e36604b3e9d0b06f2830d016b6edb57.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 The Nature and Basis of the Good Faith Rule and Ways of Proving It The Nature and Basis of the Good Faith Rule and Ways of Proving It 91 118 1351 10.22091/csiw.2019.3206.1381 FA Ahmad Deylami Associate Professor, Department of Private Law, Faculty of Law, University of Qom; 0000-0002-4538-6969 Journal Article 2018 05 23 It is for a while that Good Faith, as a legal and Islamic jurisprudential rule, has attracted the attention of the relevant experts. Among the queries posed, the following ones can be mentioned: What is the nature of this rule? Is it a substantive rule or a formal one? Does it have double dimensions? Furthermore, does this rule have moral and rational justifying foundations? In cane, it does have such foundations, can this rule withstand the proving tests grappling of which is a requirement of a rule for entering the world of laws? The present paper attempts to show that this rule has double dimensions; it has firm rational and moral bases; and there exist reliable and authentic ways for proving its existence. It is for a while that Good Faith, as a legal and Islamic jurisprudential rule, has attracted the attention of the relevant experts. Among the queries posed, the following ones can be mentioned: What is the nature of this rule? Is it a substantive rule or a formal one? Does it have double dimensions? Furthermore, does this rule have moral and rational justifying foundations? In cane, it does have such foundations, can this rule withstand the proving tests grappling of which is a requirement of a rule for entering the world of laws? The present paper attempts to show that this rule has double dimensions; it has firm rational and moral bases; and there exist reliable and authentic ways for proving its existence.

https://csiw.qom.ac.ir/article_1351_5a5923d7d39413f813b2f096d7bc8361.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 A Comparative Analysis of Non-Custodial Parent’s Visitation Right in the Law of Islamic Republic of Iran and the United States of America A Comparative Analysis of Non-Custodial Parent’s Visitation Right in the Law of Islamic Republic of Iran and the United States of America 119 142 1352 10.22091/csiw.2019.1770.1157 FA Morteza Tabibi Jabali Assistant Professor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan. Journal Article 2017 01 31 One of the social problems which has unprecedentedly affected all societies in the post-world war II era is ‘Divorce’. This has, in turn, brought into notice the vital children’s health-affecting notion of non-custodial parent’s visitation right. This paper is trying to conduct a comparative study of the problem of the right to visit an unaccompanied parent with a child in two different legal systems. As a result of performing this study, it was found that the right of Actual Visitation of non-custodial parent has been officially recognized in both Iran and the US. The way such a visitation happens could be in accordance with both parents’ agreement or - when there is no place for such an agreement - the court’s decision. Visitation right, in the laws of both countries, is of the same nature; there are, nevertheless, differences between the two legal systems in relation to Virtual Visitation, its possibility, conditions, and the way it is performed, and there are differences between the two legal systems in terms of the guarantee for preventing the visitation right. One of the social problems which has unprecedentedly affected all societies in the post-world war II era is ‘Divorce’. This has, in turn, brought into notice the vital children’s health-affecting notion of non-custodial parent’s visitation right. This paper is trying to conduct a comparative study of the problem of the right to visit an unaccompanied parent with a child in two different legal systems. As a result of performing this study, it was found that the right of Actual Visitation of non-custodial parent has been officially recognized in both Iran and the US. The way such a visitation happens could be in accordance with both parents’ agreement or - when there is no place for such an agreement - the court’s decision. Visitation right, in the laws of both countries, is of the same nature; there are, nevertheless, differences between the two legal systems in relation to Virtual Visitation, its possibility, conditions, and the way it is performed, and there are differences between the two legal systems in terms of the guarantee for preventing the visitation right.

https://csiw.qom.ac.ir/article_1352_79cd41327652e974f38aa311b8e402f1.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 Impact of Insanity and Marriage of Mother on Child Custody in Iranian Law: A Comparative Study with American Law Impact of Insanity and Marriage of Mother on Child Custody in Iranian Law: A Comparative Study with American Law 143 172 1353 10.22091/csiw.2019.3072.1355 FA Sayed Mohammad Hassan Malaekehpour Shoushtari Assistant Professor, Department of Law, Faculty of Economic and Social Sciences, Shahid Chamran University of Ahvaz null Ala Sadat Afghah PhD student of Women Studies, University of Religions and Denominations Journal Article 2018 04 15 One of the protective institutions for the child in Iranian Law is custody. In Iranian Civil Code, in articles regarding custody commenced with "on caring and upbringing of the child, Article 1168 provides: "Childcare is both the right and the duty of Abūin." It can be understood from this Article that the legislator has protected the right to custody of parents toward the child equally. However, the way in which some of the legal material is formulated instills doubt into one's mind as to the legislator's maximum protection of the custody of the father. One of these statutory provisions is Article 1170 of the Civil Code concerning the madness and maternal marriage and its impact on the custody of the child in which madness and marriage of mother are considered as barriers to custody. In this paper, with adopting the accepted view in Iranian law based on which the purpose of the legislation on the issues regarding law of the family is preserving the foundation of the family and taking into account the high interests of the child, through a comparative study of the subject in American law, the impact of madness and the mother's marriage on her right to custody to the child will be addressed. In the case of maternal insanity, after considering the legal material, it was concluded that the insanity of each of Abūin caused barrier to custody due to his/her inability to take care of himself/herself and a fortiori the child's care. Concerning the impediment of maternal marriage for his custody, the result is that the use of such a ground is not justified. One of the protective institutions for the child in Iranian Law is custody. In Iranian Civil Code, in articles regarding custody commenced with "on caring and upbringing of the child, Article 1168 provides: "Childcare is both the right and the duty of Abūin." It can be understood from this Article that the legislator has protected the right to custody of parents toward the child equally. However, the way in which some of the legal material is formulated instills doubt into one's mind as to the legislator's maximum protection of the custody of the father. One of these statutory provisions is Article 1170 of the Civil Code concerning the madness and maternal marriage and its impact on the custody of the child in which madness and marriage of mother are considered as barriers to custody. In this paper, with adopting the accepted view in Iranian law based on which the purpose of the legislation on the issues regarding law of the family is preserving the foundation of the family and taking into account the high interests of the child, through a comparative study of the subject in American law, the impact of madness and the mother's marriage on her right to custody to the child will be addressed. In the case of maternal insanity, after considering the legal material, it was concluded that the insanity of each of Abūin caused barrier to custody due to his/her inability to take care of himself/herself and a fortiori the child's care. Concerning the impediment of maternal marriage for his custody, the result is that the use of such a ground is not justified.

https://csiw.qom.ac.ir/article_1353_112ea4aa7f06cf41af3acea5d0f91bfd.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 5 3 2018 11 22 Introducing and Criticizing the Doctrine of Election of Remedies for Breach of Contract: A Comparative Study in American Law, Islamic Jurisprudence and Law of Iran Introducing and Criticizing the Doctrine of Election of Remedies for Breach of Contract: A Comparative Study in American Law, Islamic Jurisprudence and Law of Iran 173 200 1354 10.22091/csiw.2019.3451.1429 FA Esmaiel Nematollahi Associate Professor, Department of Private Law, Faculty of Law, University of Qom Iman Dehghani Dehaj Ph. D. Candidate in Private Law, Faculty of Law, University of Qom. null Journal Article 2018 01 14 In most of the legal systems, the non-breaching party has numerous ways to deal with the breach and its resulting compensation. An important question raised in this case is whether the non-breaching party can choose between the related remedies and select the one which is more beneficial for him. There is a doctrine in American law, known as doctrine of election of remedies, based on which a person not only can but is required to choose one of the available remedies. According to this doctrine, election of a remedy can be final, binding and inalienable, even if, it does not supported by consideration or is not by deed, or even is not relied by the other part. Notwithstanding its precedent in American law, this doctrine has been criticized over the history. Contradictions with justice, differences in judicial procedures, principle of the accumulation of remedies and their changeability as well as lack of independence are among the criticisms. As regards the Imamiyah jurisprudence and Iranian law, it should be stated that on one hand some of the results of the aforementioned doctrine are obtained by similar institutions and foundations, and accordingly there is no need for the doctrine. On the other hand, some of the other results of the doctrine are rejected by the Iranian law and are not acceptable. In most of the legal systems, the non-breaching party has numerous ways to deal with the breach and its resulting compensation. An important question raised in this case is whether the non-breaching party can choose between the related remedies and select the one which is more beneficial for him. There is a doctrine in American law, known as doctrine of election of remedies, based on which a person not only can but is required to choose one of the available remedies. According to this doctrine, election of a remedy can be final, binding and inalienable, even if, it does not supported by consideration or is not by deed, or even is not relied by the other part. Notwithstanding its precedent in American law, this doctrine has been criticized over the history. Contradictions with justice, differences in judicial procedures, principle of the accumulation of remedies and their changeability as well as lack of independence are among the criticisms. As regards the Imamiyah jurisprudence and Iranian law, it should be stated that on one hand some of the results of the aforementioned doctrine are obtained by similar institutions and foundations, and accordingly there is no need for the doctrine. On the other hand, some of the other results of the doctrine are rejected by the Iranian law and are not acceptable.

https://csiw.qom.ac.ir/article_1354_f8cca276d6cbde478492fa0ab3eb12be.pdf