فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال هشتم شماره 4 (پیاپی 30، زمستان 1400)

Use of imprisonment as an important sanction in dealing with delinquency in the criminal policy of different countries has not been very successful and this has led to the tendency of legislative and judicial authorities to use its alternatives. Why and how to restrict imprisonment for women is one of the issues that has occupied the minds of thinkers and policymakers at the national and international levels. Research suggests a double necessity using alternatives to incarceration for this group of convicts because their personality and behavior often do not pose a significant danger to others to make their imprisonment necessary. In addition, the punishment of imprisonment not only causes the occurrence and spread of mental illnesses and increases self-harm among them in prison environments that are primarily male in nature, and in practice cannot help their rehabilitation, but also incarceration will increase the risk of delinquency in them and even their children, both inside and outside the prison. Therefore, in the present article which is done by a descriptive-analytical method, it would be clear that the capacity and experience of penal systems both in our country and in the West have shown that alternatives such as self-regulatory penalties, community services and financial penalties, if used accurately and appropriately, can prevent further harm to this important segment of society while preventing the recurrence of crime. A view that is quite consistent with the minimalist approach of Islam in dealing with imprisonment.

Power over the performance of obligation in the law of obligations in general, and power to deliver the object of sale in the contract of sale in particular, are conditions for the absolute validity of transactions  .But there is a disagreement relating to its nature whether this power is a characteristic of the obligor or regardless of the personal abilities of the obligor,  it is one of the conditions of the subject of obligation, and taking over  and delivery by the obligor, the obligee or a third party is sufficient? From one point of view, according to the rules of sale contract in the Civil Code, "power over the conceder of the seller" is one of the characteristics of the seller. However, the personal inability of the obligor does not render the contract null and "power to flfill the obligation" is the same as "the power of a conventional individual to fulfill the obligation". Another view is that the power to fulfill the obligation is a condition of the subject of the obligation and not of the characteristics and conditions of the parties to the contract. Each of these two theories has its advocates in the legal systems of Iran, France and Imamiyah jurisprudence. This article aims at comprehensively reviewing the laws, legal evidence and doctrines of the proponents of these two theories, using a descriptive-analytical method based on library tools. It is concluded that the condition of power over the performance of an obligatione in all three legal systems in question, in the sense of the ability to perform the obligation, depends on the status and state of the obligation, not the ability of the obligor.

The present paper has addressed playback in the Iranian & American laws aiming at determine whether playback performance in a live concert will pose compensation in Islamic jurisprudence, law of Iran and American la? American courts have proceeded the playback litigation, but despite the occasional interrogation of playback by the Ministry of Cultural and Islamic Guidance, Iranian courts have not yet shown any tendency to examine such cases. The present study has examined the injurious act of playback that is committed as the result of an omission and has scrutinized the civil liability resulting from it in Islamic jurisprudence, law of Iran and American law. Playback conflicts with the principles of transparency, accountability and responsiveness that are important principles of good governance. The research method is descriptive-analytical by reference to the written and online national and international sources. The results of studying laws of Iran and U.S. demonstrate that, if live performance is laid down in the contract e.g. the ticket, playback performance in a live concert is an omission and the one who is responsible seems to be blameworthy. As a consequence, the omission would be considered a fault and poses civil liability.

In line with the increasing economic developments and, as a consequence, the expansion of companies in the current post-competitive era, companies have turned to marketing more than ever to gain a competitive advantage. Contracts that have a marketing function can be divided into different types; One of the most common types of contracts is the selective distribution contract. In the EU legal system, the contract is a binding agreement whereby the supplier undertakes to supply products (goods and services) to authorized distributors (distributors who are qualified according to selected criteria) and in return for distribution, the buyer undertakes to resell the products among authorized distributors or final consumers. By concluding selective distribution contracts between the supplier and the distributors, a distribution network is created. This network is called the selective distribution system. Selection criteria are divided into different types: 1) quantitative or qualitative criteria; 2) objective or personal criteria; and 3) commercial or technical competence. The purpose of choosing a selective distribution system is branding, maintaining brand value and maintaining standards and quality in the distribution phase so that the customer gains a quality shopping experience by purchasing the product. In the Iranian legal system, despite the widespread use of the contract, its legal meaning and nature remain unknown and cannot be analyzed in the form of any specific contract, but according to the principle of freedom of contract in Article 10 of the Civil Code, it is accepted.

Referendum has always drawn attention as a direct tool for exercizing the right to self-determination and citizen participation. The most important question is what are the features and standards of a "good referendum" - as a fully-fledged indication of the citizens' will? As well, what principles and rules should a referendum have to be the real representation of the will of the citizens and in what context it should take place? In this article, through employing a descriptive-analytic method, while acknowledging the lack of a clear and comprehensive legal system for the referendum in Iran and taking into account of experiences of different countries, the principles and criteria of a good referendum, and the processes and stages of this democratic phenomenon are examined. Emphasizing the need to strenrthening the guiding role of the legal system for the referendum and taking it away from the realm of political games, it is finally proposed to formulate a comprehensive law on the referendum in order for determining all the elements and components related to a good referendum so that all actors in the field of the referendum act within an appropriate legal framework.

Observing a reasonable time in criminal proceedings is one of the important components of a fair trial which at the same time is associated with the benefits and interests of the accused, the victim and the society. In Article 3 of the Criminal Procedure Code of 1392, the legislator has emphasized the need to observe this principle in criminal proceedings by using the phrase "in the shortest possible time". However, in domestic law, there is no criterion for assessing the observance of the said principle, and it is difficult to estimate its observance in various cases. The findings of this research, which is conducted through a descriptive-analytical method, demonstrate that the jurisprudence of the European Court of Human Rights (ECHR) contains variables that can be used as criteria for compliance with the principle of reasonable time in criminal proceedings. Examination of the judgements issued by the Court shows that the complexity of the case, the actions and behavior of the applicant, the actions of the parties involved in the case, the multiplicity of investigating authorities, etc. can be considered as important and decisive variables and act effectively in assessment of unjustified waste of time in criminal proceedings. The above conditions are different in each case and, as a consequence, the determination of the normal length of time before the trial is not consistent with the facts.

According to the explicit provisions of the Convention on the Rights of the Child 1989 (CRC) and the Family Protection Act of 1391, the best interests of children's issue is the most significant subject. But personalization of interest or viewing laws and decisions without case by case assessment would lead to its destabilization. The child interest in CRC entails elements including communication with parents, attention to comments and views, identity, health, safety, education which should be examined in a case by case basis in order to achieve the highest child benefits. Therefore, the examination of these elements seems to be necessary even in the same subjects due to the difference in children's conditions that in most cases is conducted during judicial proceedings. In the present article, through as descriptive analytical method, it is attempted to notably decrease the ambiguities as to interest and determine its principal status by introducing and clarifying the elements of interests in the CRC and comparing them with Iran's laws relating to family. Iran's laws have explicitly introduced the family court and judges as the competent authorities for determination of best interests of the child. But CRC, while acknowledging the competent court element, considers the specialization in the children's affairs, having the adequate facilities and providing the expert opinion to the judges to be the necessary factors to achieve the best interests. Consequently, necessity of paying attention to and recognizing and prioritizing the elements of interest mentioned in the CRC will largely prevents the adoption of personal interpretations in the decisions related to children in Iranian courts and will provide the child with the highest levels of protection and care.

Susan Wendell, a feminist philosopher, has made feminist critiques of common definitions of disability in universal legal documents. According to her, changes should be made in the definition of disability in the important document of the World Health Organization (WHO) in the United Nations. First and foremost, it must be accepted that the natural structure and function and the natural ability to perform activities depend on the physical, social and cultural environment in which one lives. Accordingly, not only in the political, social and cultural dimensions, but even in the biological dimension, disability cannot find a single definition. As a result, we are not dealing with a single definition of disability, but we are dealing with "definitions" of disability and WHO, in principle, cannot universalize a single definition. Second, in the definitions of disability, great diversity should be considered in the disabled themselves, and even common disabilities without sharing in gender, class, race and age should not be included in a definition group. Third, in the correct definitions of disability, a limit should be set for those who have a conflict in the identity of the disability or the crisis of the identity of the disability, so that they do not fall into the category of healthy or disabled and can have enough time and energy to solve their challenge. And fourth, the exact distinction between patient and disabled is not in the best interest of either patient or disabled, but rather in the interest of patient support organizations and disability support organizations to reduce the number of clients and their costs. Wendell can be criticized for not using neutral, relative and cultural terms in the definition of disability, and this is in contrast with the purpose of defending the rights of persons with disabilities. Instead, one can distinguish between the definition of a person with a disability and the definition of a characteristic of a disability.

Artificial intelligence has entered many areas of human life and has posed new legal challenges. Having legal personality is one of the theories in managing these challenges that has been proposed to justify the contracts concluded by intelligent systems based on the theory of representation on one side and the attribution of civil liability resulting from the activities of intelligent systems to the systems themselves on the other side. However, a coherent and comprehensive study is not conducted to harmonize the current rules of legal entities and its compliance with the features of intelligent agent. This article seeks to answer the adequacy or inadequacy of theoretical foundations and legal resources to identify legal personality for intelligent agent, which has been written in a descriptive-analytical method with a comparative study of Islamic jurisprudence, Iranian law and law of the West. The findings of this study show that each of these systems have significant theoretical foundations for having legal personality, but the status and characteristics of traditional legal entities are not equally applicable to the features of intelligent agent and if this structure not modified, the identification of legal personality for the systems, despite the alternative solutions, will cause legal confusion

Islamic jurists, judges and legal scholars invoke their ‘common sense’ for identifying the cause of an event and according to them, they try to examine the event from the perspective of an ordinary human being and not a philosopher or a scientist. However, maintaining that "common sense" is essentially obscure, misleading and non-regulated and invoking such a factor in identifying the causes of events seems to be incorrect, some scholars have harshly criticized this approach. Developing the "common sense principles" theory in 1959, Hart and Honore´, two distinguished English jurists, aimed at providing certain principles and rules for standardizing common sense. However, the theory of "common sense principles" was not accepted by the legal community due to the existing problems in their method of argument. In the present article, relying on the studies conducted in the field of empirical psychology, first and foremost, the authors attempt to persuade the readers that the theory of "common sense principles" is the best standard for identification of the causes of events. Secondly, they deal with comparing this theory with the viewpoints of Imamiyah jurists and valid narrative texts. Accepting the conclusions of the present theory, in addition to its theoretical impacts in scientific circles, can help the judges to identify the causes of events.