فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال دهم شماره 4 (پیاپی 38، زمستان 1402)

The concept of good faith is recognized in many legal systems and entails significant implications. It has received particular attention and influence in German and English law across various fields. The liability of non-owner possessors (in both legal and material terms) represents one of the most important areas. This paper aims to examine the possibility of the impact of good faith on the liability of non-owner possessors regarding damages caused to the subject of possession, as well as the quality of this impact, through a library-based comparative analysis. In German and English law, the recognition of the concept of good faith and the emphasis on attributing damages to the conduct of the possessor to recognize their liability, alongside the influence of good faith in establishing this attribution, have allowed the good faith of the possessor to eliminate or mitigate their liability in both tortious (obligatory) and contractual contexts. However, in domestic law, the influence of jurisprudence and the scope of the concepts of usurpation and quasi-usurpation, particularly in cases of material possessions, limits the support for a possessor acting in good faith, and it seems that the solution to protecting a possessor acting in good faith lies in distinguishing between the usurper and the quasi-usurper. On the other hand, in legal possessions, the attribution of damages to the conduct of the possessor receives more importance, and to some extent, the situation is similar to German and English law.

Previous legal provisions cannot predict and regulate all possible future situations, and laws are composed of words that are open-textured, meaning that they are always susceptible to different interpretations. This has made the role of judges crucial in determining the content of legal rules. How is this role assessed in the fabrics of the Iranian legal system? Furthermore, what is the position of judges in lawmaking or, more precisely, what is their role in judicial legislation, and how does this position relate to the principles of public law and considerations related to the separation of powers? This descriptive-analytical research attempts to examine the conceptual framework of judicial legislation in light of the theory of "legal realism" and analyze the legitimate boundaries of judges' discretion in the production of legal rules from the perspective of public law. This analysis requires, on the one hand, the clarification of the relationship between jurisprudence and adjudication and legislation, and on the other hand, the evaluation of the relationship between the Iranian legal system and one of the modern schools of legal philosophy, namely the school of "legal realism." According to the research findings, historically, the "Mujtahid Judge" has been the authority for declaring and applying legal rules, which creates similarities between the role of judges in legal theory and the role of judges in the school of "legal realism," although currently the substitution of individual ijtihad by the will of representatives in the legislative branch has introduced a new formulation in the fundamental principles of the legal system.

Article 418 of the Iranian Commercial Code prohibits bankrupt traders from intervening in their own assets and financial transactions from the date of the bankruptcy judgment. However, it does not address the enforcement guarantee of such interventions and merely imposes a prohibition. The question arises as to what sanctions exist for the enforcement of such interventions and transactions if a bankrupt trader engages in transactions or contracts concerning their assets and properties after the issuance of the bankruptcy judgment. In response to this question, there are differing opinions among domestic and international legal scholars. Some legal scholars argue for the absolute nullity of such interventions, while others adopt the perspective of relative nullity, and some differentiate between transactions made before and after the declaration of bankruptcy. Meanwhile, some advocates adhere to the theory of non- intrusion. This research, recruiting a descriptive-analytical approach, examines various perspectives, critiques them within the Iranian legal system, and explores the subject in Imamiyya jurisprudence, as well as the laws of the United States and England. The research concludes that the theory of "considered status" provides a more suitable solution for expressing the enforcement guarantee of legal interventions by bankrupt traders after the issuance of the bankruptcy judgment.

Within the realm of commercial contracts, a specific group of contracts can be classified as permissive contracts. This category includes brokerages, agency contracts, employment contracts, and commercial representation. The rules and consequences associated with permissive contracts have far-reaching implications for legislative processes, court judgments, quasi-judicial bodies, and executive authorities. The authorized status of the obligated party and the presence of a trust description are two crucial factors determining the nature of these contracts. If the fulfillment of the permissive obligation lacks a trust description or occurs outside the boundaries of authentic consent, it constitutes a breach of contract or, at the very least, renders the contract non-binding. The findings of this comparative research reveal that within the legal system of England, such contracts are recognized as forms of agency contracts or representation. In Imamiyyah Jurisprudence, although no specific discussion has emerged regarding commercial permissive contracts due to their novelty, based on the general principles established in Imamiyyah Jurisprudence, these types of commercial transactions can be classified as permissive contracts. In the legal system of Iran, considering the challenges addressed in legal doctrine, there is overall compatibility between commercial permissive contracts, Imamiyyah Jurisprudence, and the legal system of England.

In the fight against corruption, the reaction of civil society organizations often comes from a spectrum of non-governmental actors operating at national and international levels. The nature of these organizations, due to their subject-matter expertise, extensive public engagement, and deep understanding of public sentiment, especially in adhering to the legal requirements within formal structures, can provide significant support in various areas of government and governance, particularly within the judicial system. In this system, the concentration of roles and jurisdictional authority, the existence of intra-court networks, the complexity and prolongation of proceedings accompanied by lack of transparency and increased ambiguities in laws, create conditions conducive to corruption. Therefore, it seems that external monitoring, consultation, and intervention in the functioning of institutions, which in a way reflect the principles of transparency and adherence to the rule of law, are considerable factors in improving the performance of the judicial system. In this regard, this research, recruiting a descriptive-analytical approach, demonstrates that non-governmental organizations increasingly play a role in collaboration with the public sector, including as social watch, in the development and implementation of anti-corruption programs. Other activities of these organizations include organizing targeted public hearings and engaging dialogues to develop a new discourse in the public sphere, advocating and providing assistance and advice to citizens (e.g.: whistleblowers), developing consultative guidelines and strategic recommendations, undertaking monitoring actions, and participating in legislation.

Child custody is a significant issue faced by families after divorce in all legal systems. In Iranian law, custody refers to the keeping, care, and regulation of a child's relationships with others, while in Canadian and English law, it encompasses all the rights, duties, powers, responsibilities, and authorities that parents have concerning their child and their property. The crucial question to be addressed is how divorce affects child custody according to the legal systems of Iran, England, and Canada. It appears that while divorce itself does not have a direct impact on the priority of one parent over the other in terms of child custody in Iranian law, the actual determination of custody between the father and mother becomes evident after divorce due to their pre-divorce cohabitation. In Canadian and English law, explicit gender priority in post-divorce custody has largely subsided since the 1970s, with custody laws focusing on an independent assessment of the child's best interests and welfare, thus divorce does not affect the priority of one parent over the other regarding child custody. The research methodology employed in this study is descriptive-analytical and documentary, utilizing a library-based approach. After analyzing the content, the following conclusions were drawn: firstly, it should be noted that Canadian law is similar to English law in most related aspects. Secondly, custody in Iran only encompasses child custody, while in common law, it also includes guardianship and wardship. In common law, both parents can jointly seek custody, and there is no priority between them. The court decides which parent should be responsible for custody based on the child's best interests and welfare. Additionally, the mother's remarriage does not affect custody arrangements. However, in Iranian law, although custody remains with the mother until the child reaches the age of 7, guardianship remains with the father. Anything that endangers the child, such as insanity, leads to the deprivation of custody. Iranian legislation considers the mother's remarriage as a ground for depriving her of custody, but it does not consider the father's remarriage as an effective ground for deprivation. Nevertheless, according to Article 41 of the Law on Family Protection enacted in 2012, the court has the authority to modify or extend custody duration and the custodial parent based on the child's best interests.

Individuals with disabilities constitute a significant minority in human society. However, despite the existence of Islamic, international, and domestic fundamental principles of human rights such as inherent dignity and equality, this group has faced deprivation in realizing their rights compared to others. The necessity of effective measures to guarantee their rights has raised the issue of "positive discrimination," which functions as a supportive basis in international documents, Islamic standards, and domestic laws. The main question of this paper is: What are the effects and consequences of positive discrimination as a supportive basis for ensuring and protecting the rights of persons with disabilities in domestic and international systems? This article, recruiting a descriptive-analytical approach, concludes that positive discrimination, due to its rational and intrinsic basis, legitimizes and serves as a significant factor in identifying protective rights for individuals with disabilities. The primary legal impact of positive discrimination lies in the recognition of this element in domestic laws and international documents, allowing persons with disabilities to enjoy their rights and equal social participation like other citizens. In this regard, the Convention on the Rights of Persons with Disabilities adopted in 2006 and the Law on the Protection of the Rights of Persons with Disabilities passed by the Islamic Consultative Assembly in 2017 are considered symbols of the influence of positive discrimination in supporting persons with disabilities. However, it is worth noting that domestic measures have a stronger executive backing compared to the international arena. Nevertheless, it should be acknowledged that comprehensive theoretical discussions on positive discrimination for individuals with disabilities have not been adequately addressed in the legal literature of Iran.

The concepts of ta'zir preaching in Islamic criminal procedure and caution in the English law share fundamental similarities. These similarities include diverting cases from the formal process of criminal justice, reducing the economic costs of the criminal justice system, preventing stigmatization of offenders, warning the perpetrator about past behavior, cautioning against future conduct, shaming the rehabilitator, etc. Despite the positive effects of preaching in Islamic judicial proceedings, which are based on judicial expediency in the field of penalties and the principle of ta'zir as guided by the Imam, and despite the abundant advantages of caution in English judicial proceedings, the Iranian legislature has neglected these two approaches. Although the notion of preaching as one of the degrees of ta'zir punishment has been mentioned in scattered laws enacted before the Islamic Penal Code and subsequent Criminal Procedure Code of 2013, this institution has been neglected in the aforementioned two laws and has never had a place in Iranian judicial practice. The utilization of this institution in the Iranian judicial system, which is faced with an inflation of criminal cases, especially in less significant offenses, can bring about the realization of the aforementioned effects and enable the judicial system to focus on more important cases. In this article, through a descriptive and analytical method of collecting library data, we first describe the status of admonition and caution and then provide the necessary conclusions.