نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 19 (پاییز و زمستان 1398)

If cultural and social institutions cannot play their roles appropriately in order to provide cultural rights, social norms and cultural values will be affected and there will be widespread changes in the lifestyles of influential people in society. In fact, not only will the spiritual and religious rights of citizens not secured, but also they will be disrupted; this is the result of irreparable spiritual and cultural losses. In addition, while in some cases, the hypothesis of the responsibility of public social institutions has been accepted, in other very important cases, such as culture, this hypothesis requires the production and explanation of research theories.  In other words, when a government takes over the system of society and nation, any misconduct in social and legal affairs at a macro level is due to its lack of deception, whether it results from improper regulation or non-regulation and non-fulfillment. This descriptive-analytic research attempts to outline the jurisprudential and legal issues of the state's responsibility, such as the rule of law, the theory of fault and the guarantee of the right. Considering the scope of civil responsibility of state in cultural affairs and mechanisms of compensating moral losses, this research attempts to base the theory on a regular and unitary model and introduce relevant challenges for future research.

In the longitudinal and transversal terms of the client's option, there is a fundamental difference between Islamic jurisprudents who come from different Islamic cultures. This article presents the views of Islamic religions and Iranian law in this regard. Based on the general theory of ‘arsh’ in the contracts, we have provided an analysis that describes health as a prominent feature. The main contribution of the present article is that if the seller does not fulfill this obligation and does not submit the goods in accordance with the contract, he must compensate. It is the same general theory of arsh, and, of course, it is the seller's right whether to choose termination or demand report.

The various advances of human beings and  specialization have given rise to new realms of human activity. It has created in society and therefore has necessitated the emergence of professional systems. In line with the principle of the rule of law, each of these systems is subject to specific professional regulations, which, on the one hand, express the current trends of that profession and, on the other hand, deal with possible violations by members of the profession and their performance guarantees. The investigation of violations and the determination of the guarantees of the cases are carried out by quasi-judicial authorities, whose performance is important from the perspective of observing the important measure of fair trial. This descriptive-analytical research seeks to examine the principles of the rules of substantive measure of fair trial in the regulations of Iranian professional systems. Fair trial is one of the most important legal terms that has many practical implications for protecting the fundamental rights of both parties to the proceedings and to the community. The right to choose a lawyer, the right to remain silent, the right to defend oneself, etc., are the manifestations of a fair trial that must be exercised at various stages of the proceedings. The principle of innocence, the principle of legality of crime and punishment, and the prohibition of double punishment are some of the most important principles of the substantive rules of fair trial. The study found that under some professional regulations, fair trial principles were not explicitly accepted, and this shortcoming should be considered in future reviews. Until then, quasi-judicial authorities, which, in accordance with the regulations of the professional systems, are committed to the commission of a violation and guarantee its enforcement, must be diligent in enforcing the substantive rules of fair trial.

A large number of rules are set out on the basis of current interests and disadvantages of the related matters. However, sometimes it seems that some rules need to be preserved. Due to its connection with weak party (the child), the child’s occupation, besides its educational advantages, has an unbreakable relationship with the unavoidable interest of the child. The fundamental interest of the child’s occupation requires that the guardian’s authority be central and bound to it. In order to preserve the interests of the weak party, it seems that child’s occupation should be authorized when an important “interest” like the child’s education, physical power, age, and other circumstances and situations requires it, and the mere “absence of disadvantage” seems not sufficient. In addition, the conditions and dimensions of the occupation should take into consideration the higher interests of the child. The present article reviews the role of expediency in setting out the rules and the effects of child’s occupation.

Dedication is one of the properties of legal and economic systems in Islam. Endowments, like other things, may not be viable or productive over time or because of changes in human life, or they may be on the verge of being destroyed, which must then be resolved. Therefore, endowment conversion in such a situation is one of the effective ways which has been discussed in this article. From the point of view of jurists and materials of civil law, it can be assumed that the principle of endowment is unlawful unless it is permitted to do so and the civil law states that it follows their jurisprudence. The traditions, wisdom and jurisprudence of "our supreme authority" are among the most important principles of the endowment conversion license, according to which the endorsement of the endowment into primary and secondary reasoning is unique. Consuming is a great endowment of the primary evidence. But the secondary evidence comes from the needs of time and the interests of society, most of which are due to the implementation of public projects. Ownership of endowment interest in public projects, non-selling and transformation and legalization of endowment ownership are among the endowment challenges in public projects.

In the jurisprudential and religious works of Islam and even in all religions, the necessity and importance of the two rules – ordering to the virtue and discouraging from the vice -  have been particularly emphasized. This has usually been labelled with other titles such as social monitoring and the preservation of values and norms. However, the guarantees of implementing this principle and the challenges facing its implementation have received little attention. Given that an overwhelming majority of vices fall within the remit of the government, and the work of those encouraging virtues conflicts with the tasks of the state, this study tries to address the challenges facing the general implementation of this principle. Hence, five major challenges regarding the relationship between ordering to the virtues and the political interests of the Islamic system are discussed: 1. Lack of responsibility 2. Chaos and system disorder 3. Conflict of truth and interest 4. Interference with government work 5. Risk of religious disputes.

Although the United Nations Security Council is a political entity, due to the obligation of all member nations under article 25 of the United Nations Charter, its decisions have implications for international law, especially counter-terrorism law. This is so evident that some experts in the subject of counter-terrorism consider the council as a global legislature. By making various resolutions, the Security Council takes into account the new aspects of the issue of terrorism, and makes decisions. One of the new issues in the area of terrorism has to do with foreign terrorist fighters. Presence of the foreign fighters in the armed conflicts is not a new problem, but in recent years their joining to the terrorist groups has highlighted this problem. For this reason, the Security Council has addressed the issue of foreign fighters in a number of resolutions such as 2178, but the question is why the presence of foreign fighters in conflict zones including in Syria has not still stopped. Apparently, the Security Council's resolutions on this issue do not seem to be effective, due to lack of transparency. Therefore, the present paper uses a descriptive-analytic method, investigates the historical origins and concept of the foreign fighter and assesses the Security Council's anti-terrorism resolutions concerning the issue of warriors; then, it analyzes the position of the Council in this regard. Eventually, this article addresses the ineffectiveness of the decisions of the Security Council on the issue of terrorism, especially foreign fighters.

Legal system can interfere in human relationships to support fixed rights. Islamic law and jurisprudence, in their entirety and in regulating human relationships in the field of social interactions, have an identity based on equity and positive discrimination in obtaining right and protecting vulnerable rights in unequal situations. In the context of family relationships, the benefit of men and women of sexual and emotional rights is emphasized and receives legislative support. However, in the exercise of these rights, in the event of every kind of violence on the part of man, the guarantee of criminal-law enforcement is required in addition to the civil performance guarantee. However, violation of men’s sexual and emotional rights and the abuse of men by women require civil rather than criminal penalties. Also, breaking men's sexual and emotional rights and violence by woman require a guarantee of civil performance, but it does not require a criminal sanction. Furthermore, in sexual crimes, despite equal rights and duties, supporting discrimination is evident in responding to women's sexual crimes. However, criminal responses to female delinquents are largely devoid of discriminatory aspects. The present study was conducted through an analytical-deductive, document-based method. It has explained the attitude based on the equality and equality of jurisprudence and Islamic law in marital relations and shows its support for women in this area.

The existence of the articles related to unauthorized transaction in general regulations of the contracts has made some opine that the verdicts on unauthorized transactions can be generalized to all contracts. The application of the aforesaid statement to the permissible contracts has been doubted by some subsequent jurisprudents. Some have questioned the power of permission for the creation of a contract and have considered all the permissible contracts as a sort of unilateral action of valid consequences. Others have decreed that permission is a sort of legal incident. These perspectives have made the course of verdicts on unauthorized transactions face problems in regard of permissible legal actions. Exploring the concept, types and effects of permissible actions, the authors believe that permission is a constituent of consent in the process of formation of will that would exemplify a legal action if ending in the intention for contract conclusion. The unauthorized stream in permissible legal actions is feasible in case that the outcome of the unauthorized action could be ascribed to the permission. Therefore, the subject of permission should be a property belonging to the permission or its attribution to the permission party has to have been intended by the parties.

Since its adoption in 1948, the Universal Declaration of Human Rights has moved along the path of universalism and, in the context of diversity-based approaches, the Vienna Declaration in 1993 clearly affirmed its universality. TheDeclaration of Human Rights has led to different reactions among Islamic thinkers. One group believed that the provisions of this Declaration were in accordance with Islamic texts and resources, while others were criticizing it from the Islamic Shari'a perspective; a group in the midst of this spectrum believed in the combination of Islamic doctrine and the provisions of the Declaration. Among the third group, there are some who believe that by revising religious texts one can reconcile Islam and human rights so that the Islamic readings of human rights can be accepted as a margin of interpretation. This article examines the Islamic Declaration of Human Rights (Cairo Declaration) as the margin of the interpretation of the Universal Declaration of Human Rights. This paper indicates that the above proposition cannot be right; on the one hand, in spite of a large number of commonalities, there is a fundamental distinction; on the other hand, it is not possible to think of a hierarchical relationship between the Islamic Declaration and the Universal Declaration.

From the viewpoint of Iranian law, in some cases marriage contracts may be concluded by a lawyer or legal agent, and the agent must act within the framework of his contractual and legal authority. As a rule, in the assumption of the representative's involvement in the conclusion of a permanent marriage, one of the issues mentioned in the marriage contract is dowry. Now the question is what the sanction of misfeasance of the agent of the authorities about the dowry is.  This research has examined the issue from the juridical and legal point of view through an analytical-descriptive method. The results of this research indicate that there is a difference among the jurists in this regard and in the opinion of the majority of jurists, the contract and dowry form an ideal unit and the misfeasance of the dowry leads to the ineffectiveness of the principle of marriage contract. The Iranian legislator has only expressed opinion in the case of a lawyer's misfeasance of the dowry which makes the marriage ineffective in Article 1073, and is silent about other representatives. It is believed that the acceptance of the ideal separation between contract and dowry is stronger. As a result, the agent's misfeasance can’t lead to lack of influence of the principle of the marriage contract. Therefore, it is suggested that the legislator amend article 1073 of the Civil Code and accept the effect of the marriage contract on the assumption of agents' misfeasance of dowry and also make clear comments on other delegates’ agents.

Excommunication, in the sense of denying the infidel, in its extreme sense, is associated with the exhilarated ‘mahdoraddam’, an act that has become a global dilemma of ideological terrorism and has pushed national and international criminal and preventive national and international counter-terrorism measures to combat this phenomenon. In this situation, due to the defeat of defenseless criminal policies in the fight against ideological terrorism, it is necessary to focus the attention of the criminal policy makers on the cause of the emergence of terrorism (that is, extremism in the form of excommunication). In this regard, those extremists who are susceptible to excommunication can be restrained through non-refoulement, and they control the other, who have stumbled on the brink of victimization, through the rebellion and the threat of punishment. Therefore, it is necessary to transcend this phenomenon from the measures of the philosophical basis of criminality in order to convince the legislature to legally ban excommunication as the main driving force of contemporary terrorism. Therefore, the present paper initiates a non-refoulement prevention to prevent excommunication. Then it justifies adherence of excommunication on the basis of the philosophical principles of criminality, to prevent the transformation of active ex-communication forces into terrorist elements