نشریه پژوهش های حقوق تطبیقی
سال پانزدهم شماره 1 (پیاپی 71، بهار 1390)

The basis of civil liability is so important that it would not be exaggerating if one says, the basis of civil liability is the most important issue in private law. From the beginning of the formation of civil liability law, the lawyers were seeking a basis to justify it and the various theories in this field have been presented. In this article, "opposability", as a new theory on the basis of civil liability is provided. According to this theory, the basis of civil liability, is the opposability of damage to the wrongdoer. The criterion of opposability is the relation of causality customary. This theory also has a basis in religious jurisprudence (FEQ) and can justify all responsibility rules in religious jurisprudence. Some of Islamic jurists have mentioned this issue in their works. In spite of the first section of the Civil Liability Act and under the doctrine of some lawyers who have believed to the theory of fault, in Iranian law, the theory of opposability is more suitable than other theories. In western legal systems such as French law and Common law, liability is principally based on the theory of fault, but in some cases, liability without fault is accepted. The doctrines of these systems have presented and accepted new theories of liability and it seems that lawyers welcome the theory of opposability.

Today, the great changes of the global banking and monetary system, made by the revolution in the information technology and communications, have had deep effect on the lives of individuals. Correspondingly, this technology has confronted the current anti-money laundering domain with a new challenge in a way that access to the electronic banking and internet networks has provided money launderers with a safe environment. In this article, in addition to describing the electronic commerce and banking and their features as a suitable approach to money laundering, and methods of creating confidence in e-commerece, modern techniques of money laundering will be considered. The classical process of money laundering will be compared with the modern one. It was concluded that information technology and communications, if used in unsafe conditions, have caused the money laundering to be more expanded and have facilitated the methods of committing this crime. Therefore, it is necessary that this issue is taken into consideration while making economic, financial and criminal policies of societies. Concerning this issue, the tips of the Financial Action Task Force (FATF) have been suggested as the best strategies for fighting against money laundering.

To prove crimes punishable by Had through confession, Islamic criminal justice has set particular qualification, some of which such as puberty and wisdom refer to the confessor while some others refer to the confession itself. Most important qualifications, which monitor confession’s quality, is its quorum. In this context, confessor’s confessions do not reach the valid quorum. In such circumstances, we are faced with incomplete confession, which its verdict is the topic of current paper. There is no doubt about the verdict of these cases with respect to instability of Had penalty, which is derived from incomplete confession. But the question is whether, in such cases, confessor’s Taazir is canceled or not? In this regard, there is no consensus among the legislators. Most of legislators have passed a sentence of Taazir on the confessor but some of them have opposed it. In our country’s jurisprudence, the legislator of the Islamic punishment has protested the incomplete confession, which is derived from not reaching the valid quorum, and has followed the dominant point of view. In the current paper, we brought up legislators’ statements about this issue and studied their evidence with more discussion. We have also paid attention to the position of our country’s criminal law toward this issue.

Defamation is prohibited in the international system of human rights and in domestic legal systems. Prohibition of defamation in domestic legal systems is explicit, but not in the international documents of human rights. Given that defamation causes damage to the reputation of people, and international instruments including the Covenant on Civil and Political Rights, European Convention on Human Rights, American Convention on Human Rights and African Charter on Human and People's Rights have emphasized to respect the rights or reputation of others in the enjoyment of human rights, especially the right to freedom of expression, no body hesitated in banning defamation. Unfortunately, we see differences on the components of this legal concept, which can obscure the concept and range of defamation, and thus pave the way to abuse of libel laws. This disagreement also can be seen in the choice between criminal and civil laws dealing with libel. It is hopeful that the international system and domestic legal systems have accepted almost the same defenses against libel charges. Acceptance of these defenses is such that prevent, unauthorized damage to the rights and reputation of others and, at the same time, prevents violation of the right to freedom of expression. These defenses, especially, ensure the rights of those accused of libel against public officials and governmental bodies.

Nowadays, the fundamental role of information in contracting process, particularly in consumer contracts, is persuaded the national legislators to protect the less informed contracting party. However, there are some controversial doctrinal views including positive, negative and neutral view, about imposing general duty to inform. England’s common law does not recognize any general duty to disclose material facts. However, dominant judicial doctrine of European countries imposes general duty to inform. This paper is trying to study and analyze the mainsprings of these controversial views. Our supposition here would be that positive view has more reasonable mainsprings comparison whit the negative and neutral view.

In case of damage in air transportation, the person entitled to delivery, must complain to the carrier forthwith after the discovery of the damage within the conventional stipulated time periods. The conventions prohibit suits against the carrier for damage or delay unless a timely written notice is given to the carrier. This article considers such issues as the person entitled to delivery, the necessity of notifying the carrier in complete and partially lost goods, contractual time limitation and damage due to delay. The article will finally discuss the exception to the notice requirements.

The term tafwiz or delegation is one of the terms, which have been rarely used in Islamic jurisprudential (Fiqh) and legal texts. In Constitutional Law and some of the common laws, this term has been considered by legislators. Few debates have been made on whether in Islamic jurisprudence (Fiqh) and law, delegation has a different meaning from its literal meaning and also on the different kinds of delegation and the nature, terms and effects of each of them. Although in some Islamic jurisprudential (Feqh) works, tawkil (authorization) has been used beside tafwiz (delegation) or even they have been taken as synonymous, further investigation shows that tawkil not only differs in meaning from tafwiz, but also it is not its only form. Tafwiz has other forms and kinds. In this article, besides explaining the technical meaning of tafwiz, the researchers attempted to introduce different kinds of tafwiz and their terms and effects. Finally, they have concluded that if there is no evidence to the opposite, tafwiz leads to the irrevocable transference of the right or authority of one person to another.

The sixth section of chapter V of the UN's convention of contracts for international sale of goods which deals with effects of sale under preservation of goods title, contains an article that permits resale of goods. In Iranian law, we cannot find any provision that explicitly contains authority to resell goods such as the Article 88 of UN's convention. Therefore, studying in Iranian law the possibility of resale of goods is scientifically useful. Then, we selected three titles in Iranian positive law and Islamic jurisprudence, namely ''Khiyar e takhir e saman" (Option of delayed payment), "hagh e habs" (Carrier's right to sell the goods) and finally "Taghas" (Retaliation) to make closer the national law to the right of resale of goods in international area and compare with it. According to the author's opinion, the possibility of resale in UN's convention is based on the essays of goods processor to determe his duties and prevent further damages. We can see some aspects of these purposes in our positive law and Islamic jurisprudence.