نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 27 (تابستان 1401)

One of the most important reasons for proving litigation, both in civil and criminal matters, is the testimony of witnesses. The validity and condition of justice for intuition is a matter of consensus and coincidence among the general jurisprudence and Islamic schools, and as a way to resolve hostilities, the realization of truth and proof of crime in society, the importance of this issue is mentioned in the book and tradition. Paying attention to the explicit text of the Holy Quran and narrations, all Imami jurists acknowledge the condition of justice, but their statements on the definition of justice, the ways of proving it, as well as the causes of the decline of justice and the possibility of justice in infidels, are different. The important point here is that justice alone is not enough, but witness justice must be done by a judge. This article examines the concept of justice from the perspective of verses, hadiths, sayings and opinions of Imami jurists, and states that the testimony of intuition is the path to reality and not the discoverer of reality. The sources of Islamic jurisprudence are investigated to explore the ways to prove and achieve justice. The findings include knowledge of the judge, good appearance, cultivation, Shiism, association, probation and acceptance.

Some women are congenitally infertile or have had to have their uterus removed due to the disease and as a result, are unable to conceive due to the lack of a uterus. This group of people can use a transplanted uterus for fertility. A uterine transplant contract (UTC) is a contract under which the uterus of one party to the contract is acquired to give fertility to the other party who has no uterus. Regarding the intention and consent of both parties, since (UT) leads to the decline of pregnancy power in the donor, so obtaining consent in this regard should be by consciously stating all the conditions and consequences of the transplant. As it is risky, accepting a (UT) is against the interests of the detainees and their guardian does not have the right to decide in this regard. Since the result of this contract is the birth of a child, the parties to the (UTC), in addition to general capacity, must also have a series of special conditions. The case of transaction regarding a uterine transplant contract is important because (UT) is significantly different from transplantation of other organs; Among other things, (UT) is risky and temporary and, unlike transplantation of other organs, is not life-saving and only leads to an improvement in the quality of life of the donor. The subject of the UTC seems to be legitimate in light of arguments such as the right to fertility, the principle of the rule of will, the right to treatment and other documents mentioned in the article. Receipt of compensation that is related to the direction of this contract can be justified in the form of Article 801 of the Civil Code.

Strengthening and deepening studies in legislative initiatives and legislative drafting are a significant and complicated capacity used as a preventive strategy (solution) to make good laws when it faced legislative challenges. However, due to the complication and entanglement of the components of this field, having such a capacity has not been easy in practice, and it requires consideration of relevant elements, realistic and practical calculations, practical wisdom and many abilities. According to the thematic documents provided, the research method in this research is descriptive-analytical, and the data collection method is library type. Its purpose is to study the legislative initiatives, enumerate the effective components of legislative drafting, and highlight the legislative audience component. The findings of this study indicate that, firstly, in the legislative drafting process, Considering the legislative audience component to regulate simple, clear, accurate, correct, transparent texts both determine the form and content of the law and make the extent of law implementation by the audience, predictable and possible. Second, as far as the legislative initiatives and legislative drafting are concerned, the desire legislation, in the face of the challenge of non - implementation of laws, particularly needs accurate and realistic assessments of law enforcement and knowing the audience of the law as much as possible. Therefore, in this regard, it is necessary to consider both the importance of the legislative audience component and the role of other components and how they affect the quality of legislative drafting with a focus on the legislative audience.

The ICC jurisdiction in pursuit of Omar Al-Bashir, deposed President, and cooperation necessity of new Sudanese state in this regard are preceded by a record issue in the Security Council Resolution. The Resolution on the new Sudanese state after Al-Bashir’s depose is still binding to surrender him to the ICC instead of being tried in domestic courts. The comparative feasibility study of this theory, considering the situation of Al-Bashir’s removal from power and the non-membership of the Sudan in the ICC is one of the aims and topics of this paper. The study method is descriptive-analytical and relies on requirements of the Resolution and the ICC Statute. The main question of the research is what the effect of the Resolution components and the Statute on obligation of the new Sudanese state to hand over the deposed president instead of domestic trials are.  The findings of research show that Omar Al-Bashir’s removal from power does not only affect the requirements of the Resolution and the provisions of the Statute, but it also facilitates the handing over and initiation of his trials in the ICC. Therefore, the new Sudanese state, as a successor continues to address the requirements of the Resolution and the Statute to hand over Al-Bashir to the ICC

With the approval of Article 45 of the amendment to the Anti-Narcotics Law in 2017 and the imposition of Ifsad fi al-arth for some drug crimes, an important change was made in the field of the death penalty in drug crimes. This change, which was made with the intention of eliminating and reducing executions, was a kind of expediency in accepting the suspicious jurisprudential Ifsad fi al-arth which, while changing the scope of strict criminal policy, has led to ambiguities and challenges. Primarily, the lawmaker has developed the scope of strict penal policy and execution though claiming he has decreased the punishment for the aforementioned crime. Secondly, the legislature has expanded the scope of the crime of Ifsad fi al-arth, which is a limited crime that does not comply with the rules of dare and Caution in issuing verdicts of death penalty, and with this interpretation, has made the abolition of the death penalty more difficult from a legal point of view. Thirdly, it seems that the inclusion of the verdict of Ifsad fi al-arth is not correct for all the clauses of the supplementary Article 45 of the amendment, and this adaptation can be justified only if the activity of the accused in the distribution and sale of narcotics is widespread and has led to corruption in society.

The fundamental rights of citizens have to receive proper guarantee. The sovereign bodies must pay full respect to these rights. To make sure these essentials of civil society, one may claim that regard has to be had to establishment of a mechanism of due process. Due process here is to be read as a comprehensive system to confer a reliable assurance to the society members of being respected as to their fundamental rights. To this end, the desirable due process has to have some basic characteristics. In other words, the main features of due process are linked to the concept of "citizens' procedural rights" as the counterpart of "citizens' substantive rights". In this article, I have tried to introduce the essential features of due process to the extent that are compatible with any legal system regardless of structural and historical background. The main aim is to introduce due process as a proper mechanism of access to justice. Let us think for a while about 'justice as procedure' beside the concept of 'justice as substance'.

The International Court of Justice, as the principal judicial organ of the United Nations, plays a decisive role in the settlement of international disputes. The subject of the present study, through various judgments of the International Court of Justice, is to examine how the Court deals with events and their description, how to understand and interpret the text and international regulations as assumptions for voting, and also to examine the general and practical methods and criteria of the Court in the process of describing the event to issuing a judgment. The present article, via a descriptive-analytic method and by means of content analysis, intends to examine and explore the factors and elements influencing each of the two stages of the court's judicial performance process (descripting and voting). Considering the existence of various factors influencing the description of the event, such as the objective means of proof as well as subjective means: mental perceptions, recognition and interpretation of the court judges, the effectiveness of each of them is relativeand not definite. Anyway, inany case, the court tries to strike a balance between these factors by taking the path that is closest to justice, and the application of the principle of fairness is a clear example of this method. Generally, there is no absolute or fixed version can be found in the ICJ procedure from describing the event to issuing a judgment.

Kelsen’s effort to deliver a normative positivism (thesis of normativity) leads to a theory of legal obligation which is moral in nature i.e., it provides us with norms which refer to a rational necessitation of an action. But, the purity of the theory demands the separation of morality from law (thesis of separation). Therefore, confliction between the two above mentioned theses is inevitable. Kelsen tries to reconcile them by proposing three solutions: restriction of presupposition of basic norm to effective legal systems, moral relativism, and descriptive nature of legal propositions. These solutions include three claims about the Differentiation of basic norm from moral norms: moral formalism, moral neutralism and exclusion of positive invalidity. But critics argue that the solutions suffer from derivation of “ought” from “is”, rejection of possibility of conflict between moral and legal norms, insufficiency of moral relativism for proving Kelsen’s theory as an only alternative of natural law and traditional positivism and tendency of theory to regarding legal norms as imperative. To avoid these problems, Kelsen substitutes the traditional theory with the empowerment theory. The new one could reconcile the normativity of law with the thesis of separation, but its inability to explanation of legal obligation convinced Kelsen to give up his new-Kantian believes and join to voluntarism.

In Iranian legal system and Shia jurisprudence, the rights of vendor and buyer are not balanced. Because of the possessory of the sale contract legal support scales, they are usually in the favor of the vendor.  For example, at the selling in instalments, buyer immediately will be owner of object of sale and immediately can transfer it to the other and the vendor can only file an action against the client. For this reason, the parties of sale contract try to use solutions to balance the rights between themselves. One of these solutions which is very popular in society is using dissolving condition in deed (sale). The question whose answer is very important is whether the client can transfer the object of sale before the instalments of consideration (money purchase). There are different opinions. Our hypothesis in this research is that client in this period doesn’t have the right of possessions against dissolving condition and if there is any conflict in transaction, it will be in pasture tax condition.

Labor relationships have been intertwined with the painful history of human beings: slavery, exploitation, bad working conditions, sickness, occupational accidents and deaths caused by them. The labor contract as a source of this work relationship has historically changed from private contracts to contracts of a private-public nature and the cause of this change has been the workers' revolutions and government interference through enacting of imperative protective rules in the direction of ensuring human dignity and balancing labor relations. This article tries to explain the definition and characteristics, differentiation and different types of employment contracts in the Iranian labor law system with a descriptive-analytical method and to address the shortcomings of employment contracts in the field of legislation and judicial procedure. The Labor Law approved by the Majma- e- Tashkhis pays attention to the requirement of human dignity in the employment contract, which is the guarantee of minimum protections; however,  the way in which article 7 of the Labor Code and its notes have been approved has weakened job security in permanent work, which is reflected in the performance of employers, the Ministry of Labor and the Administrative Justice Court. The solution to the problem is to modify Article 141(clause B), Article 7, and its two notes.