Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 The principle of Ma Yozman in Iranian Civil Law: a Comparative Study The principle of Ma Yozman in Iranian Civil Law: a Comparative Study 1 28 562 10.22091/csiw.2015.562 FA Hamzh Asfandiyari Mahsa Madani Journal Article 2015 11 23 The Ma Yozman principle (ما یضمن) is one very famous principle in the Islamic jurisprudence. Though it does not have any grounding in Islamic traditions, it has been widely established as a principle in Islamic traditions and some other principles taken from Islamic legal texts. This principle has two parts: the original principle and its reverse order. The principle states that if a contract is applicable, then the opposite of it is also applicable, and if a contract is inapplicable, then the opposite of it is also inapplicable. One can find traces of the contents of this principle in the Iranian Civil Law. However, there are opposing views as some lawyers basically consider it to be void. In the present article, we make an attempt to study the application of this principle in the civil law. In so doing we have a comparative study of Shia Jurisprudence and the general Islamic Jurisprudence. We also address some relevant topics in French Law. The Ma Yozman principle (ما یضمن) is one very famous principle in the Islamic jurisprudence. Though it does not have any grounding in Islamic traditions, it has been widely established as a principle in Islamic traditions and some other principles taken from Islamic legal texts. This principle has two parts: the original principle and its reverse order. The principle states that if a contract is applicable, then the opposite of it is also applicable, and if a contract is inapplicable, then the opposite of it is also inapplicable. One can find traces of the contents of this principle in the Iranian Civil Law. However, there are opposing views as some lawyers basically consider it to be void. In the present article, we make an attempt to study the application of this principle in the civil law. In so doing we have a comparative study of Shia Jurisprudence and the general Islamic Jurisprudence. We also address some relevant topics in French Law.

https://csiw.qom.ac.ir/article_562_9a47e3fd908fcb0b12d5ae6f9bd38b68.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 From Transfer of Ownership to Obligation: The Influence of French Law on the Analysis of the Lease Contracts in the Iranian Law From Transfer of Ownership to Obligation: The Influence of French Law on the Analysis of the Lease Contracts in the Iranian Law 29 58 563 10.22091/csiw.2015.563 FA Mohamadmahdi Alshref 0000-0001-7890-4032 Journal Article 2015 11 23 In spite of the fact that the Iranian Civil Code, influenced by the common view shared among jurists, considers the effect of lease contracts as the ownership of profits, some legal experts, influenced by the French Law, believe that the lease of a contract is totally or partially a promissory one. This view relies on the French thought that ownership is a real right, but this basis is incompatible with principles of the Iranian Civil Code that does not admit the object of ownership to be merely a concrete one. In defining lease, some jurists have used the phrase "dominion over profiteering" instead of "transfer of ownership of profits." Also some lawyers, influenced by this alteration, have concluded that these jurists have agreed with the French approach which considers lease as a promissory contract. According to the fundamental difference between the meaning of "dominion over the object of lease" in the French Law and the jurisprudential definitions, it is wrong to consider the two approaches to be the same. The term dominion over profiteering in French Law means physical giving whereas in Islamic jurisprudence this means a legal transfer. Moreover in the French Law analysis the lessee has no legal relationship with the object of lease and is merely a creditor of his or her landlord. This result is unacceptable in the Civil Law of Iran. In spite of the fact that the Iranian Civil Code, influenced by the common view shared among jurists, considers the effect of lease contracts as the ownership of profits, some legal experts, influenced by the French Law, believe that the lease of a contract is totally or partially a promissory one. This view relies on the French thought that ownership is a real right, but this basis is incompatible with principles of the Iranian Civil Code that does not admit the object of ownership to be merely a concrete one. In defining lease, some jurists have used the phrase "dominion over profiteering" instead of "transfer of ownership of profits." Also some lawyers, influenced by this alteration, have concluded that these jurists have agreed with the French approach which considers lease as a promissory contract. According to the fundamental difference between the meaning of "dominion over the object of lease" in the French Law and the jurisprudential definitions, it is wrong to consider the two approaches to be the same. The term dominion over profiteering in French Law means physical giving whereas in Islamic jurisprudence this means a legal transfer. Moreover in the French Law analysis the lessee has no legal relationship with the object of lease and is merely a creditor of his or her landlord. This result is unacceptable in the Civil Law of Iran.

https://csiw.qom.ac.ir/article_563_a85dcd1215e24ca5e19228fe152e889c.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 An Introduction to Vicarious Liability of Robots from a Techological Point of View and Islamic Law An Introduction to Vicarious Liability of Robots from a Techological Point of View and Islamic Law 59 78 564 10.22091/csiw.2015.564 FA Mohammad Ali Haji Deh Abadi null Fatemeh Behzadinia Saleh Esmaili Journal Article 2015 11 23 Mohammad Ali Haji Deh Abadi [1] Fatemeh Behzadinia[2] Saleh Esmaili[3] As a result of technological development, each day new inventions are recorded and utilized in human societies. In the light of these technical developments and due to the emergence of new concepts of artificial intelligence, robotics has also entered a new phase in human beings' lives. Consequently, anticipation for the realization of a dream of an artificial intelligence has increased. The need to adopt rules and regulations to be used for this technical equipment, and to ensure safe grounding for them seems a necessity at this stage. Criminalization of violations of these rules can be justified for the protection of individuals against the effects of working with these tools, and for avoiding numerous hazards known to them in the industrial life. How can one place responsibility on or punish a robot that has inflicted irreversible damages on somebody or something? This article deals with the criminal liability of robots. These findings can be of use in the legislation of modern robotic technology. Mohammad Ali Haji Deh Abadi [1] Fatemeh Behzadinia[2] Saleh Esmaili[3] As a result of technological development, each day new inventions are recorded and utilized in human societies. In the light of these technical developments and due to the emergence of new concepts of artificial intelligence, robotics has also entered a new phase in human beings' lives. Consequently, anticipation for the realization of a dream of an artificial intelligence has increased. The need to adopt rules and regulations to be used for this technical equipment, and to ensure safe grounding for them seems a necessity at this stage. Criminalization of violations of these rules can be justified for the protection of individuals against the effects of working with these tools, and for avoiding numerous hazards known to them in the industrial life. How can one place responsibility on or punish a robot that has inflicted irreversible damages on somebody or something? This article deals with the criminal liability of robots. These findings can be of use in the legislation of modern robotic technology.

https://csiw.qom.ac.ir/article_564_bbace66f185e496ff6c71ae012ae671a.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 The Protection of Places of Worship in Armed Conflicts in the Viewpoints of Islamic and International Law The Protection of Places of Worship in Armed Conflicts in the Viewpoints of Islamic and International Law 79 104 565 10.22091/csiw.2015.565 FA Gholamali Ghasemi Journal Article 2015 11 23 ious places has its place under the rubric of the cultural and historical properties in the international humanitarian law. This protection includes a ban on any kinds of attack or destruction against these places, the prohibition of utilizing these places for military purposes, any instances of retaliation against these places, and a system of supportive international law in this field. In a similar vein, the holy Quran has mentioned a prohibition of invasions against monotheistic places of worship. Additionally, the biographies of the Holy Prophet Mohammad and Muslims have best illustrated these kinds of behavior. The military necessity of attacks against these places as the exception to their protection, and the application of immunity on the basis of agreements are the common points of the two legal systems. However, in the Islamic approach, the protection is applicable only to the places of worship of monotheistic religions, not to all such places. Moreover, giving ideological and spiritual characteristics are other points of departure in the Islamic ious places has its place under the rubric of the cultural and historical properties in the international humanitarian law. This protection includes a ban on any kinds of attack or destruction against these places, the prohibition of utilizing these places for military purposes, any instances of retaliation against these places, and a system of supportive international law in this field. In a similar vein, the holy Quran has mentioned a prohibition of invasions against monotheistic places of worship. Additionally, the biographies of the Holy Prophet Mohammad and Muslims have best illustrated these kinds of behavior. The military necessity of attacks against these places as the exception to their protection, and the application of immunity on the basis of agreements are the common points of the two legal systems. However, in the Islamic approach, the protection is applicable only to the places of worship of monotheistic religions, not to all such places. Moreover, giving ideological and spiritual characteristics are other points of departure in the Islamic

https://csiw.qom.ac.ir/article_565_01d88fd9552abf926469c12ea1f2da29.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 The Role of Awareness about the Typically Fatality of an Act in the Structure of Murder from the Viewpoints of Islamic and Western Law The Role of Awareness about the Typically Fatality of an Act in the Structure of Murder from the Viewpoints of Islamic and Western Law 105 134 566 10.22091/csiw.2015.566 FA Jalaloddin Ghiyasi 0000-0001-8036-9534 Ruhollah Akrami 0000-0002-4129-7520 Journal Article 2015 11 23 The killing of a human being through the committing of a deadly conduct by individuals that do not have an intention of killing is one of the instances of murder. This conduct has been taken into account in both Iranian criminal law (according to Paragraph (b) of Article (290) of the Islamic Penal Code), and some of the Western legal systems. One of the important issues relevant to this type of murder is whether the awareness of the lethality of the behavior is relevant to its structure. The legal doctrine and the case law on this question have opposing viewpoints. To some experts, the perpetrator's awareness is necessary for the fulfillment of a criminal act, while others argue against it. In this article, these issues are accounted for. The topic is studied on comparative approach, with an emphasis on criminal jurisprudence; then its foundations have been analyzed. The killing of a human being through the committing of a deadly conduct by individuals that do not have an intention of killing is one of the instances of murder. This conduct has been taken into account in both Iranian criminal law (according to Paragraph (b) of Article (290) of the Islamic Penal Code), and some of the Western legal systems. One of the important issues relevant to this type of murder is whether the awareness of the lethality of the behavior is relevant to its structure. The legal doctrine and the case law on this question have opposing viewpoints. To some experts, the perpetrator's awareness is necessary for the fulfillment of a criminal act, while others argue against it. In this article, these issues are accounted for. The topic is studied on comparative approach, with an emphasis on criminal jurisprudence; then its foundations have been analyzed.

https://csiw.qom.ac.ir/article_566_cc3b1912a8836f7e1b69e57119a441de.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 The Logical Relationship between No Loss Principle in Islamic Jurisprudence and the Principle of Abuse of Rights in Western Legal Systems The Logical Relationship between No Loss Principle in Islamic Jurisprudence and the Principle of Abuse of Rights in Western Legal Systems 135 166 567 10.22091/csiw.2015.567 FA Abbas Karimi Hadi Shabani Kandsari Journal Article 2015 11 23 In this article, the logical relationship between No Loss Principle in Islamic jurisprudence and the principle of Abuse of Rights in French jurisprudence has been put under study. Throughout this article, we show the significance of this principle in Islamic law by clarifying its concepts and criteria in comparison with principle of Abuse of Rights in French Law. In this regard, we show what the criterion, concept and the scope of No Loss Principle and the Principle of Abuse of Rights are. By studying the Quran, Islamic traditions, and the opinions of jurists, we come to the conclusion that term ضرر (Zarar) means material loss whereas ضرار (Ziraar) means immaterial loss accompanied by harassment. The content of No Loss Principle dispenses with detrimental ordinance; and the criterion of the fulfillment of loss applies to unusual damages. The domain of this principle is so broad. It consists of religious state of affairs. It is also used to reject an ordinance by with somebody may inflict damages via the performance of right to somebody else. On the other hand, in French Law, the permission to perform rights is rejected if it is used at the expanse of others. A new theory propounded for abuse of right is unconventionality of created loss and finally has similar criterion with no loss principle. The canal of principle of abuse of right is performance of right and subsequently has a narrower scope in comparison to the No Loss Principle. In this article, the logical relationship between No Loss Principle in Islamic jurisprudence and the principle of Abuse of Rights in French jurisprudence has been put under study. Throughout this article, we show the significance of this principle in Islamic law by clarifying its concepts and criteria in comparison with principle of Abuse of Rights in French Law. In this regard, we show what the criterion, concept and the scope of No Loss Principle and the Principle of Abuse of Rights are. By studying the Quran, Islamic traditions, and the opinions of jurists, we come to the conclusion that term ضرر (Zarar) means material loss whereas ضرار (Ziraar) means immaterial loss accompanied by harassment. The content of No Loss Principle dispenses with detrimental ordinance; and the criterion of the fulfillment of loss applies to unusual damages. The domain of this principle is so broad. It consists of religious state of affairs. It is also used to reject an ordinance by with somebody may inflict damages via the performance of right to somebody else. On the other hand, in French Law, the permission to perform rights is rejected if it is used at the expanse of others. A new theory propounded for abuse of right is unconventionality of created loss and finally has similar criterion with no loss principle. The canal of principle of abuse of right is performance of right and subsequently has a narrower scope in comparison to the No Loss Principle.

https://csiw.qom.ac.ir/article_567_215308c320c893cc5f17a6b384ad8827.pdf

Univerisity of Qom Comparative Studies on Islamic and Western Law 2476-4213 1 2 2015 01 21 Conditions of Implementation of Duress in the Civil Law Contracts of Iran, France, and Egypt Conditions of Implementation of Duress in the Civil Law Contracts of Iran, France, and Egypt 167 194 568 10.22091/csiw.2015.568 FA Mahbubeh Mina Journal Article 2015 11 23 Everybody, in his daily life, can make unwillingly contracts. If there is any duress in contract could we say that it is effective in positive law? It is a very jangle raising the question in this matter, whether the evaluation of fear is subjective, objective or both of them, subjective and objective. Every of these three views has its advocators. In relation to the conditions of realization of duress there are similar view points in law of Iran, France, and Egypt,. In Iranian civil law, the subjective and the objective view are compounded. The form of the article 202 of Iranian civil law resembles the article 1112 of French civil law. The sentences of French courts follow subjective methods. Egyptian civil law is better, as it accepted only one method (the subjective one). Everybody, in his daily life, can make unwillingly contracts. If there is any duress in contract could we say that it is effective in positive law? It is a very jangle raising the question in this matter, whether the evaluation of fear is subjective, objective or both of them, subjective and objective. Every of these three views has its advocators. In relation to the conditions of realization of duress there are similar view points in law of Iran, France, and Egypt,. In Iranian civil law, the subjective and the objective view are compounded. The form of the article 202 of Iranian civil law resembles the article 1112 of French civil law. The sentences of French courts follow subjective methods. Egyptian civil law is better, as it accepted only one method (the subjective one).

https://csiw.qom.ac.ir/article_568_0b5f83b1687576bb1d1f0b4e27f537ac.pdf