Univerisity of QomComparative Studies on Islamic and Western Law2476-42138320210923Civil Liability Caused by Damage to Personality
A Comparative study of Imamiyah Jurisprudence, Iran and English lawCivil Liability Caused by Damage to Personality
A Comparative study of Imamiyah Jurisprudence, Iran and English law132184010.22091/csiw.2021.5499.1817FAAhmadAmiriPh.D. Candidate in Private Law, Faculty of Law and Political Science, University of Shiraz.HojjatMobayenAssistant Professor, Department of Islamic and Private law, Faculty of Law and Political Science, University of Shiraz0000-0002-7997-2851Mohammad AliKhorsandianAssociate Professor, Department of Islamic and Private law, Faculty of Law and Political Science, University of Shiraz.0000-0001-7905-4746SiroosHeidariAssistant Professor, Department of Islamic and Private law, School of Law and political sciences, Shiraz University Faculty of Law and Political Science, University of Shiraz.Journal Article20200505Although the human personality and dignity are respected in all legal systems and under certain conditions, a criminal liability has been determined for damaging it, civil liability caused by damage to personality has been payed less attention especially in Iranian Law. On this basis, the main issue in this article is studying the institution of civil liability, its conditions and criteria and methods of compensation in Iran jurisprudence and law and its comparison with the English Law. The research method is a descriptive-analytic and comparative one. Civil liability caused by damage to personality is studied under the general heading of "desecration" in Imamiyah jurisprudence and Iran law, and under the heading of "defamation" in English law. The criteria for defamation in English law is "lowering the reputation from a right-thinking member view of society" and the criteria for desecration in Iran law and Imamiyah jurisprudence is "damage to the personality". The conditions of liability are different in these systems based on these two criteria. In English law, unlike law of Iran, compensation for defamation is usually financial, the amount of which is determined by the court.Although the human personality and dignity are respected in all legal systems and under certain conditions, a criminal liability has been determined for damaging it, civil liability caused by damage to personality has been payed less attention especially in Iranian Law. On this basis, the main issue in this article is studying the institution of civil liability, its conditions and criteria and methods of compensation in Iran jurisprudence and law and its comparison with the English Law. The research method is a descriptive-analytic and comparative one. Civil liability caused by damage to personality is studied under the general heading of "desecration" in Imamiyah jurisprudence and Iran law, and under the heading of "defamation" in English law. The criteria for defamation in English law is "lowering the reputation from a right-thinking member view of society" and the criteria for desecration in Iran law and Imamiyah jurisprudence is "damage to the personality". The conditions of liability are different in these systems based on these two criteria. In English law, unlike law of Iran, compensation for defamation is usually financial, the amount of which is determined by the court.https://csiw.qom.ac.ir/article_1840_43d6d315ffc11aa98bb19f3d96fa03f3.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923Priority of Tenant's Goodwill over Eviction in Iranian, Islamic and French LawPriority of Tenant's Goodwill over Eviction in Iranian, Islamic and French Law3364187310.22091/csiw.2021.4741.1643FALeilaJavanmardAssistant Professor, Department of Private Law, Islamic Azad University, Khorramabad Branch0009-0009-8544-5570SiamakRahpeikProfessor, Department of Private Law, university of judicial sciences.Journal Article20190820In accordance with the Law on Landlord and Tenant Relations approved in 1997, when the lease term expires, the tenant receives the goodwill right to discharge and the landlord is required to pay the goodwill. But the law does not explicitly specify which of these assignments is prior to the other. The prioritization of goodwill towards discharging is a problem that will affect the tenant's capital to sustain the acquisition of a new location. There is a controversy among lawyers in response to the question. According to some property evacuation is subject to a goodwill replacement, while another group considers the need to discharge before receiving this amount. In this descriptive and interpretive article, in addition to explaining various views on the issue in Iranian law, it is attempted to explain the idea that goodwill is preceded by eviction and is ultimately strengthened by the study of Islamic and French law. This will help resolving the ambiguity that the courts are facing with in this regard.<br /> In accordance with the Law on Landlord and Tenant Relations approved in 1997, when the lease term expires, the tenant receives the goodwill right to discharge and the landlord is required to pay the goodwill. But the law does not explicitly specify which of these assignments is prior to the other. The prioritization of goodwill towards discharging is a problem that will affect the tenant's capital to sustain the acquisition of a new location. There is a controversy among lawyers in response to the question. According to some property evacuation is subject to a goodwill replacement, while another group considers the need to discharge before receiving this amount. In this descriptive and interpretive article, in addition to explaining various views on the issue in Iranian law, it is attempted to explain the idea that goodwill is preceded by eviction and is ultimately strengthened by the study of Islamic and French law. This will help resolving the ambiguity that the courts are facing with in this regard.<br /> https://csiw.qom.ac.ir/article_1873_a3886964de5fdf33ad15c5c6b175268e.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923A Comparative Study of Fetal Abuse in the Criminal Systems of England, United States and IranA Comparative Study of Fetal Abuse in the Criminal Systems of England, United States and Iran6588180410.22091/csiw.2021.4502.1593FAMohammad AliHajidehabadiAssociate Professor, Department of Criminal Law and Criminology. Faculty of Law, University of Qom.nullAtefehHassannezhadMA in Criminal Law and Criminology, Faculty of Law, University of Qom.NazaninNasireMA in Consultation, Faculty of Psychology, Islamic Azad University, Science and Research Branch, Tehran.Journal Article20191008Today, fetal health protection is more important than ever to health and legal actors. Fetal abuse is a term that has evolved with the advancement of medical science in recent decades and includes not only behaviors that result in abortion but also other intentional behaviors that cause harm other than abortion as well as behaviors which is mainly due to the negligence or carelessness of the person carrying the fetus or others. This article uses descriptive-analytic method and library resources to review and compare the criminal laws of Iran, USA and the United Kingdom in the field of fetal abuse. Regarding intentional fetal abuse, especially abortion, most of the world's penal systems, especially the criminal law system of the three countries discussed in this study have developed several laws, but the embryo of harassment due to negligence or carelessness has received less attention from lawmakers. The findings of the research demonstrate that in some US states, such as South Carolina, this issue has received more attention. In the penal system of the United Kingdom and Iran, the issue of fetal abuse due to negligence has not received much attention, although in Iran, occasionally and in the Law on How to Donate Embryos to Infertile Couples has dealt with such behaviors to a small extent.Today, fetal health protection is more important than ever to health and legal actors. Fetal abuse is a term that has evolved with the advancement of medical science in recent decades and includes not only behaviors that result in abortion but also other intentional behaviors that cause harm other than abortion as well as behaviors which is mainly due to the negligence or carelessness of the person carrying the fetus or others. This article uses descriptive-analytic method and library resources to review and compare the criminal laws of Iran, USA and the United Kingdom in the field of fetal abuse. Regarding intentional fetal abuse, especially abortion, most of the world's penal systems, especially the criminal law system of the three countries discussed in this study have developed several laws, but the embryo of harassment due to negligence or carelessness has received less attention from lawmakers. The findings of the research demonstrate that in some US states, such as South Carolina, this issue has received more attention. In the penal system of the United Kingdom and Iran, the issue of fetal abuse due to negligence has not received much attention, although in Iran, occasionally and in the Law on How to Donate Embryos to Infertile Couples has dealt with such behaviors to a small extent.https://csiw.qom.ac.ir/article_1804_5e7657b24fa539794b25c314519ff182.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923A Comparative Study of the Legal Status of Factual Works in Iranian and US LawA Comparative Study of the Legal Status of Factual Works in Iranian and US Law89116187210.22091/csiw.2021.6310.1966FAMahmoudHekmatniaProfessor, Research Institute for Islamic Culture and Thought.ZeinabShabaniMA in Intellectual Property Law, Faculty of Law and Political Science, University of Tehran, Farabi .Journal Article20201202The use of the words "Author", "Creator" and "Creation" under the definition of "Work" in Article 1 of the Law on Protection of the Rights of Authors, Writers and Artists (1348) indicates that the existence of the element of creation in works is required in order to protect them. This issue poses a serious challenge to the protection of factual works. Factual works are works that include compilation and narration of facts, photographs, and geographical maps that describe facts or aspects of the world in which we live, e.g. data and information about the world that are discovered and are not the result of the act of creation. Due to their extensive composition of factual material of the public domain, as well as the requirements for accurate narration of facts in some instances, such as biographies and histories, these works face significant uncertainty in distinguishing between "Fact" and "Factual Expression". The present study by using a descriptive-analytic method in examining the legal status of factual works and a comparative study of achieving originality in different types of these works in American law, due to their different nature, seeks to express the status of this issue in Iranian law and concludes that Iranian law has failed to recognize the distinctive nature of these works.The use of the words "Author", "Creator" and "Creation" under the definition of "Work" in Article 1 of the Law on Protection of the Rights of Authors, Writers and Artists (1348) indicates that the existence of the element of creation in works is required in order to protect them. This issue poses a serious challenge to the protection of factual works. Factual works are works that include compilation and narration of facts, photographs, and geographical maps that describe facts or aspects of the world in which we live, e.g. data and information about the world that are discovered and are not the result of the act of creation. Due to their extensive composition of factual material of the public domain, as well as the requirements for accurate narration of facts in some instances, such as biographies and histories, these works face significant uncertainty in distinguishing between "Fact" and "Factual Expression". The present study by using a descriptive-analytic method in examining the legal status of factual works and a comparative study of achieving originality in different types of these works in American law, due to their different nature, seeks to express the status of this issue in Iranian law and concludes that Iranian law has failed to recognize the distinctive nature of these works.https://csiw.qom.ac.ir/article_1872_41658ec83f4e143da3b7df4f5d4c3895.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923Comparing the Theory of Separation of Powers in the Thought of Benjamin Constant and Wilayat-al-Faqih from the Perspective of the Islamic Republic of Iran’s ConstitutionComparing the Theory of Separation of Powers in the Thought of Benjamin Constant and Wilayat-al-Faqih from the Perspective of the Islamic Republic of Iran’s Constitution117128187110.22091/csiw.2021.6327.1970FAHassanKhosraviAssociate Professor, Department of Public Law, Payam-e-Noor University, Tehran.FathollahRahimiAssistant Professor, Department of International law, Faculty of Humanities, Islamic Azad University, Tehran North Branch.0000-0002-7451-3752Mohammad JavadHosseiniMA in Public Law, Faculty of Law and Political Science, University of Tehran, Farabi College and Administrative Law, Payam-e-Noor University.Journal Article20210102Examining the theory of Benjamin Constant regarding the separation of powers and the position of Wilayat-al-Faqih in Article 57 of the Iranian Constitution, these two theories can be considered compatible in terms of relations between the ruling powers. In Constant's thought, power is divided into five branches one of which has the role of "moderating power" and has a higher position than the other powers, and in cases of necessity and problems in the relations between the powers, resolves matters involved. From this perspective, it is very similar to the role of the Supreme Leader in supervising and directing the ruling forces and his duties in the political structure of the Islamic State, especially regarding the moderating power. In this research, through a descriptive-analytic and comparative approach, the arrangement of powers in the constitution and the position of the Supreme Leader as a reference for moderating power relations and resolving inter-power and intra-power disputes with Benjamin Constant's ideas have been discussed. The results demonstrate that the position of the Supreme Leader in the Iranian Constitution, determining the general policies of the Islamic system, resolving problems and disputes between powers is exactly in line with the views of Constant and this position without direct stipulation in the text of the constitution under many Articles has been manifested for the position of the Leader as the comprehensive jurist.Examining the theory of Benjamin Constant regarding the separation of powers and the position of Wilayat-al-Faqih in Article 57 of the Iranian Constitution, these two theories can be considered compatible in terms of relations between the ruling powers. In Constant's thought, power is divided into five branches one of which has the role of "moderating power" and has a higher position than the other powers, and in cases of necessity and problems in the relations between the powers, resolves matters involved. From this perspective, it is very similar to the role of the Supreme Leader in supervising and directing the ruling forces and his duties in the political structure of the Islamic State, especially regarding the moderating power. In this research, through a descriptive-analytic and comparative approach, the arrangement of powers in the constitution and the position of the Supreme Leader as a reference for moderating power relations and resolving inter-power and intra-power disputes with Benjamin Constant's ideas have been discussed. The results demonstrate that the position of the Supreme Leader in the Iranian Constitution, determining the general policies of the Islamic system, resolving problems and disputes between powers is exactly in line with the views of Constant and this position without direct stipulation in the text of the constitution under many Articles has been manifested for the position of the Leader as the comprehensive jurist.https://csiw.qom.ac.ir/article_1871_37a933b807182bf46e97e4ac483c92d4.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923A Comparative Study of the Conditions for Enforcement and Implementation of Mitigation of Damages Rule in Iranian and American Legal SystemsA Comparative Study of the Conditions for Enforcement and Implementation of Mitigation of Damages Rule in Iranian and American Legal Systems139166191410.22091/csiw.2021.6741.2038FAJafarSalmanzadehAssistant Professor, Department of Law, Faculty of Literature and Humanities, Mohaghegh Ardabili University.HamidMasjedsaraeiAssociate Professor, Department of Law, Faculty of Humanities, University of Semnan.Journal Article20210320In times of the breach of a legal or contractual obligation by the injuring party, the injured party should act as a reasonable person and take conventional steps to prevent avoidable damages. This duty begins when an obligation is breached and the promisor become aware of the breach of the obligation and is capable to mitigate the damages. Given the lack of explicit prediction for mitigation of damages in Iran’s law, naturally, the terms and procedures of mitigation of damages have not been clarified too. Under what circumstances, the duty to mitigation of damages is imposed on the injured party? If the injured party is incompetent, who will take the responsibility for mitigation of damages? Is it possible to enforce the rules of damages in cases of likely breach of contract? Is the obligation of the injured party to mitigate the damages an obligation to means or an obligation to ends? A Comparative study of the American law and these and similar questions can, while identifying its strengths and weaknesses, help the case law and the legislator in clarifying the mitigation of damages rule.In times of the breach of a legal or contractual obligation by the injuring party, the injured party should act as a reasonable person and take conventional steps to prevent avoidable damages. This duty begins when an obligation is breached and the promisor become aware of the breach of the obligation and is capable to mitigate the damages. Given the lack of explicit prediction for mitigation of damages in Iran’s law, naturally, the terms and procedures of mitigation of damages have not been clarified too. Under what circumstances, the duty to mitigation of damages is imposed on the injured party? If the injured party is incompetent, who will take the responsibility for mitigation of damages? Is it possible to enforce the rules of damages in cases of likely breach of contract? Is the obligation of the injured party to mitigate the damages an obligation to means or an obligation to ends? A Comparative study of the American law and these and similar questions can, while identifying its strengths and weaknesses, help the case law and the legislator in clarifying the mitigation of damages rule.https://csiw.qom.ac.ir/article_1914_9a53bea186bde9033d218762a35b5843.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923Natural and Contractual Transfer of Property to the Adopted Child in US Law(With a View on Law of Iran)Natural and Contractual Transfer of Property to the Adopted Child in US Law(With a View on Law of Iran)167196191610.22091/csiw.2021.5740.1867FAMohammad HasanSadeghi MoghadamProfessor, Department of Private and Islamic Law, Faculty of Law and Political Science, University of Tehran.ZohreAfshar QuchaniPh. D. in Private Law and University LecturerJournal Article20200715The custody of children and adolescents without a guardian and with a bad guardian in Iranian law has many similarities with the institution of adoption in American law, with the fundamental difference that custody in Iranian law does not result in a real parent-child relationship between the guardian and the adopted child, and just is resulted into some analogous rights and duties. This legal relationship will have financial and non-financial effects on the relationship between the parties, one of the most important financial effects has always been the possibility of inheritance between them or bequest of property for each other. The present study, focusing on American law and jurisprudence in this country, has tried to study the various presumptions of inheritance between the adopted child and the guardian, the adopted child and the guardian relatives, and the adopted child and his/her real parents. Furthermore, it examines the possibility of invoking the will concluded in favour of the adopted child, assuming the conclusion of a direct will by the guardian or an indirect will by the relatives of the guardian. In doing so, there has been a view on Iranian law and related codified laws.The custody of children and adolescents without a guardian and with a bad guardian in Iranian law has many similarities with the institution of adoption in American law, with the fundamental difference that custody in Iranian law does not result in a real parent-child relationship between the guardian and the adopted child, and just is resulted into some analogous rights and duties. This legal relationship will have financial and non-financial effects on the relationship between the parties, one of the most important financial effects has always been the possibility of inheritance between them or bequest of property for each other. The present study, focusing on American law and jurisprudence in this country, has tried to study the various presumptions of inheritance between the adopted child and the guardian, the adopted child and the guardian relatives, and the adopted child and his/her real parents. Furthermore, it examines the possibility of invoking the will concluded in favour of the adopted child, assuming the conclusion of a direct will by the guardian or an indirect will by the relatives of the guardian. In doing so, there has been a view on Iranian law and related codified laws.https://csiw.qom.ac.ir/article_1916_ac6481af08240b5ee4168185018d8a8d.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923Studying the Theorical Foundations of Fraud on Law & Its Effects in Iran’s Private International Law and Imamiyah JurisprudenceStudying the Theorical Foundations of Fraud on Law & Its Effects in Iran’s Private International Law and Imamiyah Jurisprudence197224179910.22091/csiw.2021.4284.1557FAAzizFahimiAssociate Professor, Department of Private Law, Faculty of Law. University of Qom.nullJournal Article20190424the question of H\hardship in a marriage that gives the power of divorce to a wife is one of the important issues in the private lives of families and a way to get rid of a wife from a difficult life she has with the husband. Since this is a problem with Iranian and non-Iranian families such as French ones, this article has dealt with the implications of the examples of marriage in the law of Iran and France. It is clear that in this area there are some similarities and some differences in the examples of the realization of hardship. Similar examples of hardship may include the abandonment of common life for a significant period of time, suffering from refractory diseases by the husband, misbehavior of the husband, and a decisive conviction the husband to be imprisoned. Different examples are non-payment of the family cost, infertility of the husband, remarriage of the husband, man's employment in jobs contrary to the interests of the family, and the continued use of psychotropic drugs in Iranian law, and committing adultery by one of the couples and lying for 6 years in physical separation, degradation and insulting by one of the couples or missing of one of them in French law.the question of H\hardship in a marriage that gives the power of divorce to a wife is one of the important issues in the private lives of families and a way to get rid of a wife from a difficult life she has with the husband. Since this is a problem with Iranian and non-Iranian families such as French ones, this article has dealt with the implications of the examples of marriage in the law of Iran and France. It is clear that in this area there are some similarities and some differences in the examples of the realization of hardship. Similar examples of hardship may include the abandonment of common life for a significant period of time, suffering from refractory diseases by the husband, misbehavior of the husband, and a decisive conviction the husband to be imprisoned. Different examples are non-payment of the family cost, infertility of the husband, remarriage of the husband, man's employment in jobs contrary to the interests of the family, and the continued use of psychotropic drugs in Iranian law, and committing adultery by one of the couples and lying for 6 years in physical separation, degradation and insulting by one of the couples or missing of one of them in French law.https://csiw.qom.ac.ir/article_1799_fb09262beb27ca80e1fd6a577fee8cfe.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923The Right to Confidentiality of Patient Medical Images in Iranian (Islamic) and Western LawThe Right to Confidentiality of Patient Medical Images in Iranian (Islamic) and Western Law225254191810.22091/csiw.2021.6437.1990FANaserGhasemiAssociate Professor, Department of Criminal Law and Criminology, University of Judicial Sciences and Administrative Services.Journal Article20210103The use of images taken by the physician during the treatment and care of the patient can endanger the patient's privacy and image rights and lead to the disclosure of the patient's identity. The right to confidentiality of the patient's image therapy in the legal sphere is included in the category of the right to personality and in the realm of Islamic law is in the category of the sin against mankind. On the other hand, these images provide a unique opportunity for physicians in education and research. Given that based on the rights of persons to their image, no one can take a photo or video without the consent of a person, today, some domestic legal systems have provided the conditions for proper use of patient images to protect patients' rights and prevent possible disputes between physician and patient. Non-disclosure of patient identity, informed consent, and safe maintenance are the three main conditions in using patient images. Due to the necessity of finding the right to privacy of patient medical images, the present study, through a descriptive-analytic method, aims to achieve the principles and criteria of protection of this right for legislation in Iran by reviewing and analyzing the results of scientific theories and legal approaches of international centers such as the International Committee of Medical Journal Editors and the Canadian Medical Protective Association has considered and western countries such as Australia, England, and Canada.<br /> The use of images taken by the physician during the treatment and care of the patient can endanger the patient's privacy and image rights and lead to the disclosure of the patient's identity. The right to confidentiality of the patient's image therapy in the legal sphere is included in the category of the right to personality and in the realm of Islamic law is in the category of the sin against mankind. On the other hand, these images provide a unique opportunity for physicians in education and research. Given that based on the rights of persons to their image, no one can take a photo or video without the consent of a person, today, some domestic legal systems have provided the conditions for proper use of patient images to protect patients' rights and prevent possible disputes between physician and patient. Non-disclosure of patient identity, informed consent, and safe maintenance are the three main conditions in using patient images. Due to the necessity of finding the right to privacy of patient medical images, the present study, through a descriptive-analytic method, aims to achieve the principles and criteria of protection of this right for legislation in Iran by reviewing and analyzing the results of scientific theories and legal approaches of international centers such as the International Committee of Medical Journal Editors and the Canadian Medical Protective Association has considered and western countries such as Australia, England, and Canada.<br /> https://csiw.qom.ac.ir/article_1918_2a51be6987366d594a4104b81bf421fd.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42138320210923Intellectual Property Rights for Magic Tricks: Studying the U.S Law and Providing a Solution in the Iranian Considering the Imamiyah JurisprudenceIntellectual Property Rights for Magic Tricks: Studying the U.S Law and Providing a Solution in the Iranian Considering the Imamiyah Jurisprudence255282184410.22091/csiw.2021.6260.1957FASayyed Mohammad HadiGhabooli DorafshanAssistant Professor, Department of Jurisprudence and Foundations of Islamic Law, Faculty of Humanities, Ferdowsi University of Mashhad.0000-0003-3227-2169MostafaBakhtiarvandAssociate Professor, Department of Private and Intellectual Property Law, Faculty of Law, University of Qom.0000-0003-4308-2272AkramAghamohammadiPh.D. Candidate in Private Law, Faculty of Humanities, Bu-Ali Sina University.Sayyed Mohammad SalehGhabooli DorafshanPh. D. Student in Jurisprudence and Foundations of Islamic Law, Faculty of Humanities, Ferdowsi University of Mashhad.Journal Article20201123Magicians entertain spectators by using some tricks. Creating such tricks sometimes requires spending a lot of time and money by magicians which makes this group expect protecting their intellectual endeavor and preventing their imitation and unauthorized exploitation. The advent of digital technology, with the ability of mass and rapid copying and dissemination of the tricks, has doubled the necessity of this protection. This paper, written through a descriptive-analytic method, has concluded that in Imamiyah jurisprudence, there is no obstacle to the legitimacy and consequently, the protection of magic tricks. Under the Iranian and U.S laws, granting intellectual property rights in the form of copyright, patent, trademark and trade secrets to the magicians is a probable solution to protect this group, each having advantages and disadvantages. As an alternative solution, self-regulating rules of magicians' unions may provide a relative protection for this group.Magicians entertain spectators by using some tricks. Creating such tricks sometimes requires spending a lot of time and money by magicians which makes this group expect protecting their intellectual endeavor and preventing their imitation and unauthorized exploitation. The advent of digital technology, with the ability of mass and rapid copying and dissemination of the tricks, has doubled the necessity of this protection. This paper, written through a descriptive-analytic method, has concluded that in Imamiyah jurisprudence, there is no obstacle to the legitimacy and consequently, the protection of magic tricks. Under the Iranian and U.S laws, granting intellectual property rights in the form of copyright, patent, trademark and trade secrets to the magicians is a probable solution to protect this group, each having advantages and disadvantages. As an alternative solution, self-regulating rules of magicians' unions may provide a relative protection for this group.https://csiw.qom.ac.ir/article_1844_ed7000217f82ee6efdd1a7664824cb60.pdf