نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 4 (پاییز 1398)

Gender reassignment is a process by which a person changes sex– that is, by which female sexual characteristics are substituted for male ones or vice versa due to the bisexuality of some people. Today, in many civilized countries worldwide, in order to remove the ambiguities and sexual disorders of the hermaphrodite, effective and useful medical, biological and psychiatric measures have been taken and continue to be taken. In Iran, the issues and problems of the hermaphrodite or the bisexuals have been raised with a new scientific perspective and the necessary facilities are provided for solving the problems of such people and gender reassignment through surgery, with the permission obtained from of judicial authorities (family court). Gender reassignment will have different legal consequences in varying degrees. In the Iranian legal system, gender reassignment has more individual and social legal consequences, which include the annulment of the marital relationship, the deprivation of the father's right, who has become a woman due to gender reassignment, of guardianship with regard to the ward, the deprivation of custody of children from a transgender parent, the change in the coparcener’s share of inheritance of such persons, and the like. Such legal consequences have a personal and individual aspect, but gender reassignment in Iranian law will also change the social rights of such individuals. For instance, if a man becomes a woman as a result of surgery, the value and validity of his testimony will be half the validity of a man's testimony, or such a person will lose his jurisdiction in the judiciary and will also not be able to become a president or these types of positions will be deprived of the transgender man.

Due to their specific characteristics, lease agreements for commercial and non-commercial premises have been considered by the legislature, and accordingly, several laws have been enacted after the Civil Code. However, in none of these laws has the legislature explicitly mentioned their loss or destruction. Unlike movable property, which is completely destroyed by its destruction and as a result, its benefits are lost. In rental places, first, only the land is lost and the area remains the same. Unlike movable property, which is completely destroyed by its destruction and as a result, its benefits are lost. In rental places, first, only the land is lost and the superstructure remains the same. Thus, the provisions of the Civil Code regarding the destruction of the leasehold cannot be a suitable answer for commercial premises.

Is the division of legal acts into contracts and unilateral legal act an intellectual restriction? No one has explicitly made such a claim, yet it can be deduced from what has been stated by predecessors. An idea that has been prevailing and is rooted in thoughts indicates that whatever whose contract essence is doubted, then it is a unilateral legal act, and whatever whose unilateral legal act essence is doubted, then it is a contract. This view is referred to as the theory of branching whose provisions state that any legal act that is not a contract is a unilateral legal act, and it is based on the reasoning that a contract is formed with two intentions of reciprocal authorship, but a unilateral legal act is formed with one intention of authorship. However, a legal act may be neither a contract nor a unilateral legal act, but a third legal nature, because a contract and a unilateral legal act are of the opposite category, not contradictory (two opposites do not congregate and may rise). Jafari Langroudi considers this legal nature as "the purgatory between contract and iqâ (unilateral legal act)” that in Islamic law a few people have given this possibility only in the case of a possessory will, and our predecessors have failed to imagine the nature of being neither a contract nor unilateral legal act, and the majority deny it. For the first time in his writings, while recognizing this legal nature, he tried to explain this concept and delineate its elements and instances.

After proving the harmful act and the damage, the causal relationship, which is the link between these two, must also be proved. One of the possible circumstances of civil liability is that individuals may commit similar actions simultaneously, and consequently, one's action may harm another person, while the cause of the harm is not distinctly identifiable. In such a case, since it is necessary to compensate the injured party and yet the doer of the harm cannot be determined and the causal relationship cannot be proven, it is essential to examine the manner of compensation and a fair and legal solution. This article examined the prevailing jurisprudential and legal theories, including the non-responsibility of members due to the implementation of the practical presumption of innocence and lack of causal relationship, equal liability, joint and several liabilities, compensation through bayt al-mal (House of Wealth), determining the cause of the harm by applying the draw rule, and the principle of judge's wilayah (guardianship). Due to the various theories proposed to compensate for the damages incurred by inconclusive cause, therefore, the draw rule cannot be applied in this case. Although the theory of compensation through bayt al-mal has disadvantages, due to the definitive agreement with the general knowledge, i.e. the need to compensate for the injured party, and the impossibility of proving the causal relationship, concerning the compensation for the damages incurred by ordinary people, the priority is with truth and Article 477 of the Islamic Penal Code confirms this view on murder. Regarding the damages incurred by the products or activities of companies, according to the final section of Article 477 of the said law, the priority is with equal defensible liability.

Commitmentis acommitment to becomeone of the toys. Commitmentis a legal act by which previous commitment lapsesanda new commitment that it is one of the pillars are replaced. This institution has no legal precedent in jurisprudence and Islamic law and under this title has not been identified. Become a commoncommitment and differentiation with similar institutions such as theseductive, money orders, transfer and transmission of faith is demanded. Some Contract Guaranty And transfers Instances the obligation to know And believe that despite he secontracts, No292 and 293 of Civil code And adoption rights is not alien to become a commitment. In contrast, not one of those two Andare allowed to vary in nature and works orders. And are allowed to vary in nature and work s orders. In our law, certain contracts guaranty and money orders are among the And special provisions. The basic question is What is then ature of contracts, such guaranty or money order? Become true religionguaranty commitment or transfer? Has become a true commitment to seek moneyor the transferor transmission of religion? And subject to paragraph 2ofArticle 292 civile cod or section 3 ? This is followed These arguments provide answers to questions.

Plural loss is a legal term which is used as the opposite of individual loss. When the defendant inflicts some material or immaterial loss to a certain persons. This type of loss is known as “Individual loss”. In these cases, the victim (plaintiff) in order to get the loss compensated must bring a legal action against the defendant and must prove the claim before the court. Furthermore in these cases negligence or harmful act is regarded in connection with certain persons. In other hand plural loss usually amounts to affecting may people by inflicting material or immaterial loss. People who are members of associations, institutions, and parties. According to this fact plural loss can be divided in to plural loss directed to organized persons or non-organized persons. The first type of loss is inflicted to those entities which have legal personality and the second type is related to entities which are deprived of a such personality. In French law restitution of plural loss inflicted to organized association is recognized by law but in Iranian legal system no certain legislation have been passed related to this aspect of loss and in the area of judicial precedent no special verdicts allowing the restitution of such loss cannot be found however plural loss and is an established and direct loss and it is vital to pass special regulations making its restitution possible.

As an institution influencing the socio-economic relations of human societies in the present era, "Bank" is of high importance. Thus, such subjects related to this area as "bank and its nature", "money and its role in the economy and trade", "riba (usury) and its difference with profit", "conventional and Islamic banking", "banking services such as letters of credit (LC)" etc., all known as "banking law", which is an important subset of economics and business law (both domestic and international), are also of particular importance. At the same time, the necessity of pathology of the Usury-free Banking Law (1983) after four decades of its implementation has provided the grounds for different opinions from experts in this area: Has Iran's banking system been successful in implementing and enforcing the said law, or has the banking operation been diverted from the sharia and legal path for various reasons and has adopted a "quasi-usury" policy? Given that the main focus of "Islamic/non-usury banking" is on usury and its religious sanctity, the necessity of addressing this issue fundamentally by the supreme religious authorities and jurists is felt more than ever, and therefore seminaries along with Iranian universities as two main source of thought production in society are obliged to provide the necessary religious and academic answers to questions and ambiguities related to the above issues by conducting original and fundamental research. The present study attempted to address the various aspects of the subject under discussion and provide the opinions of experts in banking law (including scholars and academics), as far as possible, to explore the importance of the issue and present solutions to the current problems related to Islamic banking so that they can be used in the amendments to the said law, which is desired by the Islamic Consultative Assembly and the government. Therefore, after the introduction, the overview dealt with, evaluated, and analyzed the bank and its importance in the present era, as well as the sublime position of Imamiah jurisprudence/Ahl al-Bayt (PBUT) as a divine resource and strengthening the fundamental subjects related to and influencing contemporary law. Then, the objections and criticisms regarding the function of the banking system in the implementation of Islamic banking within the framework of the law on usury-free banking were considered. Finally, after summarizing the results, suggested amendments were made to be used by officials and those interested in this significant area of law.

The Iranian Civil Law, although adopted during the Pahlavi dynasty and the rule of the Western cult over the ruling system of Iran, the revision to the law after the Islamic Revolution and the rule of the Islamic system did not change much. The present article attempted to reveal the secret of this stability by introducing the origins of this law and its domestic and external sources. The examination of civil law documents is possible through both case and general approaches. This article adopted a comprehensive and general approach based on the reliable reports of prominent civil law professors and the researcher's findings. The result showed that the main source in regulating the articles of civil law has been Imamiah jurisprudence from the inception and impact of the foreign law on the form and content is very slight and its content instances are controversial among experts. However, in the very content instances, an attempt was made to actively pass the civil law articles through the localization process. As a guiding principle in the interpretation of the provisions of civil law, this has always been of practical interest to jurists and judicial procedures..

In the legal system of Iran , the possession of the real properties by foreign nationals , in accordance with regulation of the possession of the real properties by foreign nationals, is limited to conditions. in spite of this limitation ,with attention to nature of mortgage's contract ,real properties can be mortgages for foreign nationals ,because in this kind of contracts, the ownership is not transferred. This contracts is governed by article 34 of the Registration Act of 1386 (2008) and the Executive regulation of the Organization of Registration of deeds and properties of 1387 (2006). In the event of non-payment of debt by debtor and issuance of writ of enforcement and non-payment of debt within 10 days from communication of writ of enforcement ,at the request of the creditor ,auction's meeting is hold. If a buyer is not found ,mortgaged property is transferred to mortgagee. In such a condition the mortgage of the real properties for foreign nationals is challenged. in this article to provide an appropriate solution ,the different proposals is analyzed.

This article was an attempt to study and analyze how Jafari Langroudi cites and refers to the Quranic verses in his five-volume Mabsoot in Legal Terminology. In his book, Jafari Langroudi mentions and defines 15,165 entries. Of these, 441 entries cite specific Quranic verses or surahs. In this article, each of the entries in whose definition or explanation Jafari Langroudi cites a Quranic verse or verses was examined from four perspectives: 1. His creative and innovative aspect in explaining and understanding Quranic concepts; 2. Research background and creating questions for further research; 3. Academic development; 4. Providing the ground for amending the laws.His references to the Quranic verses under various terms do not imply his certainty that the verses can be cited in legal interpretations. However, it is at least a sign of mental sparks and initiative and creativity and innovations in creating a semantic connection between the Quranic term or Quranic verse with new legal concepts and can provide the ground for research and analysis and study and raise many questions for research areas.

One of the most common clauses in the contracts is the subsequent condition also named as resolutory condition or dissolving condition. This clause can be inserted in all kinds of contracts including irrevocable and revocable contracts, named or unnamed, unless prohibited by a specific rule. Although the rules of this condition are not mentioned by Iranian civil code, but its detailed samples in this code indicate that automatic dissolving is as a general rule is recognized in all contracts. However, the contractual resolution of contact in the French legal system is regularized as condition résolutoire before condition suspensive in the frame of the mentioned suspended kinds of contract. Regarding nullity doubt of this condition from Islamic law`s point of view, this article intend to evaluate the arguments of advocates of invalidity and correctness separately. Considering the reason verdict for the legitimation of this clause, at least in exchangeable contracts, and its unique function in conclusion of different contract, and also having economic justification, as an evaluator for each argument, has ignored the arguments of invalidity, and regarding influence of French law over Iranian system and because of the lack of strong text in the Islamic law for correctness of this clauses, and by contrast, the existence of principle and similar institutions in the civil code and Islamic law specifically the generals rules related to correctness of conditions inside the contract, this article has considered this condition as correct.

The word "Obligation", which is referred to as "commitment" in Iranian legal literature. It is one of the few fundamental legal concepts. Understanding its concept, its elements and its nature is a prerequisite for any legal understanding. This aim requires that, given its background, the precise concept and its principal and direct constitutive elements, especially from a logical perspective, be known; its nature described; its relationship with Interior and external concepts illuminated. This paper is descriptive, comparative and analytical in order to take a step towards achieving this goal. Legal professors and writers, and especially Iranians, have offered relatively different readings in this side. It is sometimes referred to as a personal legal relationship, sometimes a legal obligation or obligation, and sometimes a combination of duty and responsibility or performance guarantee. This discrepancy in definition also led to disagreement on the elements of this concept. In this essay, “Obligation” is considered a type of legal, civil, and financial obligation, therefore it is different with the Islamic jurisprudential notion of “Commitment” in its general meaning and elements.

The technical and intellectual world of most of the Iranian Muslim jurists is going through a serious change due to increasing interaction with new information technologies, especially internet and social media. This phenomenon can be defined as a kind of ever-digitalization process of law and Fiqh that increasingly is developing in a variety of ways and forms. The article will examine some real cases of changes in jurisprudential understandings due to this phenomenon. It will also explore on forms and qualities of the interactions between Iranian-Muslim legal scholars, Muslim jurists and theologians in the ever-expanding Iranian cyberspace. The underlying assumption of the paper is that Iranian legal and jurisprudential world, in continuous interaction with the new media- while confronting the interconnected social issues like as human rights, is able to develop in a paradigmatic way with the use of cyberspace. Compared to the current situation, this paradigm shift will be a transition from a scholastic, static, governmental and non-comparative legal and jurisprudential knowledge to a more human rights-based, comparative, open and plural one. This contribution elaborates on some scenes of this shift in the Iranian public sphere as reflected in internet.

In this paper, the concept and basis for “ZAMAN DARAK” with a new approach in Imamiyya jurisprudence and civil law have been reviewed. The study in the jurisprudential texts shows that the “ZAMAN DARAK” in Imamiyya jurisprudence is a “ZAMAN OHDEH”; however, the civil code has used the “ZAMAN DARAK” as the responsibility of the general practitioner to reimburse and compensate for the indemnity in the supposed desirability of coming to justice. However, the concept and scope of the “ZAMAN DARAK” in civil law should not be limited and confined to the narrow and narrow boundary of the past; instead, the “ZAMAN DARAK” in his new concept in civil law has a contractual root and does not devote to despicable and deserving righteousness. However, it is obliged, in the event of the existence of the right to exploit or to acquire, in defense of the unclaimed ownership of the buyer. The start of a lien is also the time of the conclusion of the contract, not the time for the rejection by the owner.

The obligation has been interested by the new world and its complexity, and rarely do we face to a pure obligation. Its provisions are improved, weather in the instinct of obligation or in the owners. As a general approach, the obligation has divided to simple one and complex one. Complex obligation may made by interring provisions in the instinct of obligation itself or increasing number of owners. In our legal system plurality in owners of obligation may divided to disconnected obligation and connected obligation. Plurality disconnected obligation- means a kind of complex obligation which has more than one debtor or crenate – itself divided to normal one and insolidum. Although the insolidum has diffused background in our legal system, but it has valued by insurance industry, and this point has outlined its description which this research wanted to do. Insolidum is a kind of unique and seamlessly obligation which has been owed by several debtors, whom have no legal connection with each other in that subject. with this meaning it seems opposite of solidarite. Study this legal meaning and its characteristics can reinforce our obligation law, especially our insurance law.

The effect of the cheated awareness of the existence of lesion in the transaction is one the option of lesion efficacy. In general, the role of lesion can be discussed in the form of two questions: The first question is what is the role of the emergence of lesion and the awareness of the cheated in the emergence of it, which in response to this question, two different effects can be attributed to the emergence of lesion; Either to say that the cheated awareness causes the creation of the option from the moment of awareness, or to assume that her awareness is the discoverer of the existence of lesion and the option of lesion coincides with the conclusion of the contract. How to answer the above question will have several practical benefits and effects; including depending on when we know the moment of existence of the option of lesion, It is definitely effective in determining the time of inheritance of the option of lesion and the moment of measuring the imbalance of the contractual exchanges. The second question is whether the emergence of lesion has a role in the legal relations of the parties to the contract, assuming that the emergence of lesion reveals the existence of the option of lesion? The research hypothesis is that, first, the emergence of fraud reflects the fact that the option of fraud has existed since the beginning of the contract. Secondly, the possession of the cheated at corpus of transaction can be a matter of waiving the option of lesion after the appearance and awareness of lesion in the legal relations between the parties. In this study, it is stated that the above hypothesis identified as a popular opinion among both jurists and legists and in practice, the precedent has followed it in a few opinions issued. According to the studies, we will also state that the appearance of the lesion is the only condition for exercising the right and does not interfere in the creation of it according to the code of some countries and also the International Sale of Goods Convention (CISG).

The principle of maintaining contracts is one of the initiatives of Prof. Jafari Langroudi, who is in a position to state that the custom of habit requires that a broken or violated contract be maintained and repaired. The scope of the principle of contract maintaining is wider than similar institutions such as the pacta sunt servanda (principle of necessity), principle of correctness and the theory of contract management. It includes the stages of conciliation, the execution of contracts and options, even unilateral legal acts and revocable contracts. The theory of contract maintaining seems useful in that it has a general scope and includes instances that are not covered by other legal institutions and rules. The civil law has also chosen a solution that is in line with the principle of retaining contracts; Such as option in sales unfulfilled in part and option of unfulfilled conditions. However, there are several cases in which the legislator and jurists have chosen different methods and strategies and should reflect on the effects of this principle and its compliance with civil law, the economic results of maintaining contracts and their acceptance by custom.

environmental loss, its compensation, and casual relationship between a damage and a conduct are among debatable issues in environmental law. The damage to environment should be financial in order to be claimable. This article aims to prove that natural blessings belong to all human beings and this can be proved under Imamiyah jurisprudence. There are evidences in Imamiyah jurisprudence confirming this idea; for instance, some Islamis jurists believe that in a case when it is necessary to destroy a mosque in order to purify it from a filth, the imperative rules require muslims to purify the mosque and the positive rules provides the liability for destruction of muslims' properties. By analogy between the mosque, as it belongs to all muslims, and the natural blessings, one can prove the proprietary worth of these blessings and the necessity of seeking liability in case of their destruction. Similarly, this proprietary worth and the liability of the destroyer of environment can be accepted by resort to the Sharia spirit and also the idea of martyr Muhammad Baqer Al-Sadr regarding occasions where there is no specific rule(mantaqa tol faraq).

The difference between a voluntary or alternative obligation is that in the former there is a principal obligation and a voluntary obligation (exchange), but in the other, both subjects of the obligation are principal. It becomes clear which item should be paid by choosing. It is important to distinguish between these two types of obligations, especially to identify the possibility of the obligor being obliged to fulfill the obligation and the order of this obligation. In the Bail Contract, the bail bondsman undertakes to summon the beneficiary of suretyship and in case of non-fulfillment of this obligation, to pay the amount fixed in the courtship bond. The main question is whether these obligations placed on the bondsman are voluntary or alternative? If the obligation of the bondsman is voluntary, the bondsman can summon the beneficiary of a suretyship at her/his own discretion or pay the amount fixed in the courtship bond. But if the obligation is alternative, only in a situation that the main obligation is not fulfilled, ie summoning the beneficiary of a suretyship, it is the turn of fulfilling the alternative obligation, paying the amount. According to Article 746 of the Civil Code, it seems that that article considers the bondsman to be released from her obligation in case of death of the beneficiary of suretyship, the main obligation of the bondsman is to summon the beneficiary of a suretyship. Because of the commitment was voluntary in the situation of destroying one of the two issues, it would focus on the other issue and would not go away. Finally, the obligation to pay the amount fixed in the courtship bond is a dependent and secondary obligation in comparison to the obligation to summon the surety and, as a result, is an alternative. Accordingly, the bondsman cannot make an alternative obligation as long as it is possible to fulfill the original obligation.

According to sections 362, 390 and 391 of the Iranian Civil Code, There is no doubt as to the seller`s liability, after receiving the price, to indemnify the buyer in the case of a third party`s right to whole or part of the goods. But, the code has no provisions as to the amount the buyer is entitled to as damages. This may have resulted from the lack of consensus among Muslim legal scholars whose views have been a main source of the Iranian Civil Code. In its uniform treatment decision No. 733 dated 7/10/2014 the Plenary Assembly of Iran`s supreme court trying to end the controversy has held that in such cases the buyer is entitled to the current price of the goods. But, in fact, the supreme court has failed to reach its goal in ending the controversy through its decision due to the lack of conformity with the goals of the court issuing the upheld judgement and having no relation with the plaintiff`s claim (the current price of the goods) and therefore can be criticized as being unjust and inequitable. In this article, after discussing the different views and the consequences of the decision by the Assembly, we have reached the conclusion that the just and logical solution would be the proportionate indemnification.

This article examines the role of the inheritance institution in the redistribution of wealth and social justice. In common jurisprudence, the institution of inheritance distribution is a relationship of kinship or other completely personal and private relations, such as loyalty by virtue of emancipation and person who undertake to pay the compensation for someone else’s wrong in return for inheriting from him (Jarireh guarantee). Based on some reasons and evidence, this article emphasizes that inheritance should also be viewed from a social and public perspective. This view underlies that inheritance regulations must be reconsidered in terms of wealth redistribution and social justice. In fact, despite respect for the leaver's private property and in terms of his/her kinship or private relationship with the inheritor or family interests, society and its resources have also played a role in generating his/her wealth. Thus, in the distribution of inheritance, distributional justice and redistribution of wealth to society, which is one of the sources of wealth production and gaining, should be also considered.

Presumption of ownership is one of the important jurisprudential rules and one of the most common proofs of ownership. In particular, protection of possession becomes more important in the ownership of tangible property, where the maintenance of a title deed is not customary, And violating the right of the possessor and demanding a reason from him, disturbs the economic order and the market of Muslims. There are two criteria in analyzing the basics of tangible property: the first is the majority and the second is the primary nature's requirement of the possessor, but we mentioned the third criterion in the article that is customary recognition. Because although the criterion in the rule of possession is not the majority, it does not necessarily return to the basic requirement of possession but is the criterion of customary recognition. There is disagreement among jurists about the conflict between the rule of possession and confession. According to Article 37 of the Civil Code: if the present occupier admits that the property formerly belonged to the claimant, he cannot urge, in refutation of the other's claim, his own occupation of the property, unless he can prove that the property has been transferred to him according to the correct procedure. The validity of the ownership presumption is lost. Some law professors do not distinguish between confession and other evidence of ownership and believe that proving the legitimacy of the claimant will nullify the effect of the property statute for whatever reason. On the other hand, some others believe that according to the text of this article, the only proof of ownership that can destroy the validity is a confession among all other ownership proofs, in other words, there is a feature in the confession that is not in others. However, we have justified the article in two ways: first, if the possessor confesses to the plaintiff's ownership history, she is responsible for proving the reason until the end (until her possession). The second solution can be deduced from the comparison between Article 37 and 1282 and 1283 of the Civil Code, and it was said that the confession of the possessor is covered by Article 1283 and is considered a complex confession.