فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال هفتم شماره 1 (پیاپی 23، بهار 1399)

It appears according to writings in common law and domestic law that it’s impossible to consider a single base for civil liability and consequently bailee’s liability in all cases. Liability based on negligence, strict liability and objective liability are the concepts that have been explained when discussing the basis of liability. However, it seems that strict liability cannot be an independent base for civil liability and consequently bailee’s liability. Th liability based on negligence is rooted in the invocation of damages to the behavior of damage creator and in fact, the negligence is not the principle. On the contrary, the objective liability can have an independent basis for liability. Of course, mentioning these concepts, necessarily does not imply their existence in both said legal systems, but there is notable evidence that support the existence of a thought-provoking affiliation in the foundation of liability in these two systems. Practically, it can be said that, in terms of the efficiency in suppressing the bailee’s breach of duty, considering the objective liability and in most strict state, domestic law has accepted absolute liability and is more successful than common law.

1989 Convention on the Rights of the Child emphasizes that the states shall act in accordance with the high interests of children. According to this Convention each child has special constitutional rights including right to life, right to name and identity, right to family relationships and the right to communicate with parents, even if separated from them. Today, despite the membership of most of the states in the Convention on the Rights of the Child, there are many similarities and differences between countries as regards the nature of international adoption, the high interests of the child and the competence of the adoptive. In the present research, through using a descriptive-analytic method, by a brief overview on the international adoption in laws of the Islamic Republic of Iran, France and Germany we come to this conclusion that despite the differences as to simple and incomplete adoption, influenced by international rules, these countries to a large extent have enacted similar rules especially in simple adoption. However, with regard to international adoption, despite the prediction of certain rules in French and German law, in Iran's law this institution is faced with the silence of the legislature. It seems that we can admit this institution in accordance with Islamic standards with solution for accepting an adoptive qualified Muslim parent for orphaned Muslim children and an adoptive parent for the orphaned children of the People of the Book in the framework of existing regulations and best interests of the child.

In the legislator's point of view, compensation for physical damages is very important in a way that it has led to the creation of alternative compensation systems for physical damages so that the government itself shall compensate for such damages in cases where such damages are not paid by the offender or the insurer for any reason. In Iranian law, "Treasury" and "Physical damages compensation fund" are established as alternative compensation systems for physical damages, and in England, "Criminal injuries compensation authority" and "Motor insurers bureau" are responsible for this task with some differences. In Iran and England, alternative compensation systems for physical damages are comparable in regarding to the conditions and items for compensation, and in this article, these issues are examined comparatively through a descriptive-analytic method. As regards the conditions for compensation, in English law for compensating physical damages by alternative systems of compensation several conditions are predicted some of which are considered as the conditions for compensation in Iranian law; but most of these conditions are not conditions for compensation in law of Iran. Therefore, it is observed that the approach of Iranian law is an easier one for compensation of physical damages. In Iranian law, for determination of the responsibility of "treasury" in cases such as manslaughter or error of judges, mainly the attention is paid to the origin of the damage. In a similar vein, in cases where the "Physical damages compensation fund" is responsible for compensation of damages caused by traffic incidents, mostly this approach is followed. But English law, instead of considering the origin of damages, the attention is paid to the conditions and circumstances of the events.

Expressional entertainment as a specific type of expression, which include message and content are entertaining and in different formats, can be subject to legal and jurisprudential analysis, and according to their legitimacy, they are subject to the rule governing the expression e.g. freedom. From this perspective, your expressive entertainment, regardless of content and format, is considered as a value. But due to the social nature of the statement and the impact of its content on the audience, the freedom of expression is limited by the grounds of its legitimacy and the basis of restriction. Non-harm, interference with the rights of others, public order are among the most important legal and jurisprudential grounds of restricting the content of entertainment, which sometimes excludes content from the scope of the expression and sometimes by way of a ruling and by applying certain rules based on the foundations limits the content. On the other hand, the effects of expression, including the time, place, and manner appropriate to the audience in delivering the content, can be restricted on the basis of the foundation. The Iranian legislator has taken a preventive and generally ambiguous view of content restriction, which can be prevented by limiting the scope of content with these titles in the Intellectual Property Protection Bill. The present study is aimed at achievement of the said goal through a descriptive-analytic method.

From ancient times, the beginning of human life and when a fetus should be qualified as human rights has been largely debated among scholars and different religions. Judaism, after a period of considers the embryo to have a human soul, but in this religion, fetus is considered to be perfect when its head is out of the womb or appears. In Christianity, there are two perspectives on the beginning of human life from the moment of coagulation and the beginning of human life after a period of coagulation, but the exact time has not been set for the latter. The lack of precise determination of the time of the soul's ensoulment is related to the human's lack of knowledge of the soul and its non-physical dimensions.; thus, to determine the matter, one should refer to the Holy Quran and traditions. The Holy Qur'an considers the stages of growth to be six stages including: nutfa, alaqa, mudgha, ‘izam, lahm and embryo in which the spirit is blown but no time has been set for these stages. Given the traditions in this subject, ensoulment take place at the end of four months and the doctrine of jurists who know the time of each stage of embryo development to be 20 days is in line with this time. This view is also consistent with scientific findings and the practice of the general public.

One of the rules of law which has long been used and invoked in the common law is mutuality of obligations doctrine that the courts have applied to assess the existence or absence of balance in obligations of the parties. Mutuality of obligations doctrine applies in swap obligations and the courts use it for reviewing the existence or absence of balance in obligations at the time of issuance of obliging the performance of obligations in. Therefore, the main challenge of this paper is to examine the nature and consequences of this doctrine in common law and its function in Iranian law. In the end of the present study it is determined that that applying the doctrine of mutuality of obligations is based on numerous foundations such as the equality of the parties in court and the nature of the Swap contract. Although there are some rules such as correlation between the considerations and the right of lien in Islamic jurisprudence and law which are due to the need for confrontation in conclusion and implementation of obligations, there is no objective and comprehensive criterion which recognizes the obligation to perform obligations only in cases where such a possibility exists for the other party. Applying this rule provides a clear criterion for the re -examination of the existence of balance in the contract. moreover, the violation of mutuality of obligations has a wider realm than traditional solutions of Iranian law such as right to lien in such a way that if the parties have abolished their rights to lien or this right is abolished for any other compulsory reason, the court will order to enforcement by the defendant only in case of mutual enforcement ability.

The contradiction between selfishness (personal interest) and altruism (public interest) and how they are combined are issues that have engaged the minds of the greatest thinkers of human history. The school of natural rights is one of the pioneers in this regard that it has played a significant role in justifying the right of ownership and identifying its limits. Some thinkers believe that the right to private property is a natural right inherent in human nature and in opposite, others, despite the recognition of the right to public ownership as one of the examples of natural rights, consider private property as the exception and maintain that this right has come about as a result of rulers’ act or on the basis of a social contract. On the other hand, in the school of Islam (theImamiyah jurisprudence), it is believed that the real property belongs to God and the man is indebted to Him in this divine gift. Defending private property rights is observed in both of these views (convergence) but each of them, under the auspices its intellectual foundations, has adopted a distinct policy about the scope of this right and sometimes has come to different results (divergence). This leads the mind of anyone to study these theories, reasons and argumentative methods so that be able to deal with a kind of convergence and conciliation between these thoughts and the existing divergence between them and come to a favorite result in this lane of dogmatism.

Article 406 of the Iranian Code of Criminal Procedure prohibits absenteeism in crimes involving the divine right and prescribes this type of sentence in other crimes. This approach apparently relies on the consensus of Imamiyah jurists. With the permission of the trial and in absentia conviction, all types of lawsuits are included, but due to the rule of the principle of discount, the rule of threshold, as well as the taste of Sharia, the sentence of absenteeism in the crimes of God's right does not include. The question is that to what extent the consensus adopted by the Iranian legislature is consistent with the principles of Islamic jurisprudence derived from the narrations of the infallibles on the one hand and customary judicial systems including mixed systems and accusations on the other? Accuracy in the narrations of face-to-face and absentee trials indicates that consensus is not consistent with the principle of the presence of a fair trial based on the narrations of the infallibles. Mixed trial and its security-oriented approach requires the absolute permission of the trial and in absentia in all crimes, including the crimes of the right of God and the crimes of human rights. According to Article 406 of the Code of Criminal Procedure, it does not meet the needs of the current Iranian security system, nor does it represent a fair and transparent trial based on the narrations of the Infallibles. The crimes are the right of God, which disrupts public order, and complying with the fair and transparent trial of Islam, which is somewhat similar to the accusation, calls for an absolute ban on absenteeism in all crimes.

In Iranian Law and Imamiyah jurisprudence there is no strong support for the purchaser in good faith against the owner to the extent that if the transaction is concluded in the presence of the owner but he/she is silent, the transaction needs his/her consent (Article 249) and in this regard, no right is considered for the buyer. While in the Common Law system it is tried to make a balance between the interest of the buyer in good faith and interests of the owner. Therefore, the Common Law system ignores the nemo dat rule that protects the right to ownership of individuals and takes several exceptions in supporting the unauthorized buyer. It appears that Imamiyah jurisprudence has the capacity to make a balance between the interests of the buyer and ones of the owner. It appears that rules such as causation and deception can provide this possibility so that in some cases the owner can make the negligent owner responsible for damages beard by the buyer. Furthermore, invoking these two rules pave the way for changing in view and paying attention to affairs beyond preserving the ownership of individuals.