Iranian Law Research Articles

Strategies for Balancing the Decision of Being Under Surveillance with the Freedom of Movement of a Suspect in French and Iranian Law

According to jurists advocating proportional reasoning, balancing deals with the inevitable conflict between rights and norms, and aims to justify the preference of one competing right over another without dominance. In the preliminary investigation, being under surveillance stage is a coercive measure and infringes on the freedom of movement and the legal interests of the suspect. This infringement generally serves legitimate purposes, including the protection of societal rights, the protection of the victim’s rights, and the efficiency of criminal investigations and proceedings. These purposes are considered equal status and importance to the suspect’s freedom of movement. Therefore, the decision-maker is obliged to weigh the competing legal interests. Using an analytical and descriptive approach, the study highlights the mechanism for conducting this assessment. To address this rights conflict, various strategies have been including the severity of the crime, the hierarchical value of rights, adequation, necessity and the value-based diligence of the judge. The research indicates that none of these strategies on their own, can provide a desirable mechanism for weighing competing interests and achieving balancing. Nonetheless, decision-makers can draw on these strategies and, with skill and foresight, determine the weight and importance of conflicting rights and norms.

Electoral Management in Iran: The Ministry of Interior’s Role in Parliamentary Elections

Although Iran’s Guardian Council enjoys incomparable legal authority over every stage of the electoral process, Iranian laws and regulations also provide the Ministry of Interior with an important role to play in the management of parliamentary elections. Through analysis of primary source legal materials and original interview evidence, this article considers when and how Iran’s supreme leader delegates autonomy to the executive as related to management of parliamentary elections.

Damages Caused by the Non-Entitlement of the Seller's Income in the Laws of Iran and England

This research examines the concept of seller's warranty in transferring ownership of goods during a sale contract. In Iranian law (Article 362 of the Civil Code), a seller guarantees ownership of the sold item and the right price. However, ambiguity exists regarding compensation for the buyer if the seller lacks ownership. A landmark court decision (consensus decision of 811) allowed the buyer to claim the difference in price due to inflation (in cases of seller ignorance) based on similar goods. This decision considered principles outside the Civil Code and the 2000 General and Revolutionary Law of Civil Affairs. In English law (Sale of Goods Act 1979, Section 12(1)), the seller has a primary obligation to transfer ownership to the buyer. The aim of this research (descriptive-analytical method) is to compare remedies for a seller's wrongful transfer under Iranian law, particularly considering decision 811.The research seeks to establish a clear basis for seller liability in compensating the buyer. This would create a unified and consistent legal system for compensating damages suffered by wronged parties. Ultimately, the research aims to identify the most effective method of compensation that restores the buyer's position to pre-damage conditions. Based on the research findings, determining damages based on the price at the time of sale is found to be a suitable solution for compensating the buyer.

Civil accountability resulting from the cultivation and transplantation of body organs in the laws of Iran, Egypt and Afghanistan

In the process of organ transplantation, several factors are involved, any of which may cause civil accountability: the organ donor, the recipient, or the transplant medical centers. Currently, there is no special law for compensating people who suffer through organ transplantation, and the traditional law of civil accountability is not capable of proving some of the elements and conditions, especially the relationship of causation. Therefore, a special system should be created to compensate for the damages caused by organ transplantation by establishing a special law. According to the results of this research, those who may be held responsible for causing damage include doctors, medical groups, laboratories, hospitals, and other persons who caused the damage. If the fault of any person is proven, it is obvious that compensation for the damage is the responsibility of the person causing the damage, provided that other conditions are met. It seems that the basis of civil accountability in the transfer and handling of body parts follows the theory of fault.

Embryo Donation Law in Iran and Some Challenges in Determining the Rights of Donated Children: A Review

Islamic Republic of Iran has provided a legal framework for embryo transfer so that fertility becomes possible with third party intervention. The use of this method of fertility as well as its effects and rules are subject to cultural, social and religious factors. The brief nature of the embryo donation law indicates the lack of adequate measures for the child’s future. The present study aimed to review the embryo donation law in Iran and some challenges in determining the rights of the child. This study employed a library, descriptive and analytical method and is based on Shia jurisprudence and law books. By using the keywords of “Donation, Alimony, Custody, and Inheritance”, various aspects of the embryo donation law have been investigated. Article 3 of the Embryo Donation Law considers the duties and responsibilities of the couples who donate the embryo and the born child in terms of maintenance, alimony and being mahram[1], similar to the duties and responsibilities of children and parents. However, the important issues of lineage and inheritance are not considered. Neither it elaborates compliance with the principle of confidentiality and the non-identification of the genetic parents, the coercive guardianship of the father, and the prohibition of marriage (being mahram). There is neither enough clarity about the method of evaluating the recipient couple’s moral competence, the limit of the number of gamete donations, alimony, or custody. It is necessary to explain the kinship and genetic inheritance, amend birth certificate registration law, specify the rejection of anonymity to prevent the phenomenon of mixing lineage based on Shia jurisprudence, or to add new materials to this law.

Praktik Nikah Mut’ah Pra dan Pasca Revolusi Islam Iran

The practice of temporary marriage (nikah mut'ah) in Iran has a long and complex history, closely related to the interpretation of Islamic law and social dynamics within Iranian society. This is marked by the complex unfolding of the Islamic revolution in Iran. Therefore, this study aims to understand the journey of family law in Iran and its development related to the phenomenon of nikah mut'ah practice before and after the Islamic revolution. This research is a literature study. The results of this study show that before the Islamic Revolution in 1979, this practice was less common and often viewed with diverse perspectives by society. However, after the Islamic Revolution, with the new government based on Sharia, the practice of nikah mut'ah gained legal legitimacy and broader support as part of the interpretation of Shia law. Nevertheless, this practice remains controversial and sparks debate among scholars and the wider community regarding its ethical and social aspects.

The Conditions and Manner of Executing the Contract with The Substitute Goods Are in The International Sales Convention and Subject Rights

Considering the expansion of international relations and the need for uniform laws in the international arena in recent decades, many efforts have been made to create transnational laws. The Convention on the International Sale of Goods has been developed to harmonise the laws regarding the rights of contracts so that by joining this convention, the countries will end the problems caused by the multiplicity of laws and create a uniform procedure. In a domestic or international sales contract, the seller must deliver the goods to the buyer by the terms of the contract. If the seller violates the contract and provides a defective or non-conforming product, the performance guarantee is stipulated in the Convention on the International Sale of Goods. In this research, we examine the guarantee of the right to request a replacement product. In paragraph 2 of Article 46 of the Convention, the buyer has the right to request a replacement product in case of a fundamental violation. If there is no fundamental violation of the goods and the possibility of remedying the defects of the goods, the buyer can request the removal of the defects of the goods. The institution of submission of substitute goods does not exist in Iranian law in the sense that is mentioned in the convention. Considering the non-accession of Iran, it will be useful to review the submission of substitute goods in Iran's law.

Duties of Directors under the Iranian Law: A Rigorous Review in Comparison with Other Jurisdictions

Duties of Directors under the Iranian Law: A Rigorous Review in Comparison with Other Jurisdictions

Exploring the Role of Testimony and Judge's Will in Analyzing and Investigating Article 241 of the Civil Procedure Law in Iran

Exploring the Role of Testimony and Judge's Will in Analyzing and Investigating Article 241 of the Civil Procedure Law in Iran

A Comparative Study of Identification and Implementation of Foreign Judgments in Civil and Commercial Matters in Iranian Law and the Hague Convention of 1971

A Comparative Study of Identification and Implementation of Foreign Judgments in Civil and Commercial Matters in Iranian Law and the Hague Convention of 1971

Examining the nature and comparing the lease with the condition of ownership to the suspended contract in Iranian law.

Examining the nature and comparing the lease with the condition of ownership to the suspended contract in Iranian law.

Gender and Human Rights Challenges: An Analysis of the Iranian Government's Political Influence on Family Law

From the early 20th century to the present day, Iran has undergone various political changes that have affected the regulation of family law in the country. From the codification of civil law in 1928-1935 to the Islamic Revolution of 1979, various political regimes have influenced the interpretation and implementation of family law, which in turn affected the status and rights of women and society as a whole. This article attempts to analyze the evolution of family law in Iran, focusing on the impact of politics on gender equality and human rights. It also discusses the challenges and controversies that have arisen in relation to the reinterpretation of Islamic family law following the Islamic Revolution. Although some reforms aimed to improve women's protection, in many cases, new interpretations of family law have reinforced patriarchal norms and restricted women's freedom in various aspects of life. Through a literature review and policy analysis, this article presents significant changes in family law regulations, including restrictions on polygamy, divorce proceedings, and inheritance rights, and how they affect women's rights in Iran. The results show that political influences on family law in Iran have had a significant impact in the context of gender equality and human rights. From the codification of civil law to new interpretations after the Islamic Revolution, various political regimes have shaped legal frameworks that affect the status and rights of women and society as a whole. While some reforms have aimed to improve women's protection, in many cases, reinterpretations of Islamic family law have reinforced patriarchal norms and restricted women's freedoms. Therefore, an in-depth understanding of the relationship between politics and family law is essential to strive for more inclusive and progressive changes in order to achieve gender equality and human rights in Iran.

Правовое регулирование стратегического планирования в Исламской Республике Иран

The Islamic Republic of Iran (hereinafter — IRI) is a unique state in terms of the form of government. This is the only Islamic republic in the world that bases its statehood on Shia Islam of the Jafarite persuasion. The consequence of this is the specificity of the institution of the head of state in Iran. Despite the presence of a president regularly elected in direct, general elections for a term of 4 years, the head of state in Iran is the ruling theologian for life - the Supreme Leader (Rahbar) in accordance with the principle of «velayat-e faqih» (the rule of the theologian), enshrined in the Iranian Constitution. The article contains an analysis of the authority of the Supreme Leader to adopt general policy strategies in agreement with the Expediency Discernment Council (hereinafter referred to as the Assembly) in accordance with Part 1 of Art. 110 of the Iranian Constitution. The author concludes that strategies are one of the sources of law in Iran, and in terms of hierarchy they are higher than the laws adopted by the parliament. The article shows a specific mechanism for monitoring the implementation of the provisions of the strategies in the activities of the state bodies of Iran.

A Typology of Judicial Oversight Systems in Criminal Investigation and Prosecution: A Comparative Study

Judicial oversight is essential in Criminal Investigation and Prosecution to protect individuals' rights and prevent the abuse of power. While Western countries and the International Criminal Court recognize its significance, laws in Iran and Syria lack proper distinction and definition of (especially ex-ante) oversight types and systems. This article aims to provide a comparative explanation of judicial oversight, distinguishing it from other forms of oversight. Using an analytical and descriptive approach, the study highlights the dynamic nature of oversight in criminal investigation and prosecution. The research emphasizes the need for explicit and precise classification of judicial oversight types in Syria, Iran, and legal doctrine. Such classification would enhance criminal justice, safeguard individual rights and freedoms, and prevent abuse of power.

The Right to Clean Air in International Documents and Iranian Law, and Its Criminal Guarantees

Clean air is a crucial element of the right to a healthy environment. At the same time, air pollution is a form of environmental pollution that has detrimental effects on human life, putting the health of the environment and citizens at serious risk. This has made the examination of the right to clean air in international documents and Iranian law, as well as its criminal guarantees, a necessity. Based on this premise, the aim of the present article is to examine the approach of Iranian law and international documents towards the right to clean air and its criminal guarantees. This article is descriptive-analytical and uses a library research method to investigate the subject at hand. The findings indicate that both Iranian law and international documents support the right to clean air, and governments are obligated to enact the necessary laws and ensure compliance with these laws. On the international level, there is little to no discussion of criminal guarantees for the protection of this right because the criminal sanctions for environmental crimes have not developed sufficiently. However, domestically, in Iran, the legislator has prescribed penalties such as imprisonment and fines to protect both the right to clean water and clean air. Nevertheless, these enforcement mechanisms do not seem to be particularly deterrent.

Study and Analysis of "Hejab-e Erth" in Iranian Law and Imami Jurisprudence

All assets and liabilities of a person are transferred to their relatives after their death, and in a way, ownership and debts are legally passed on to their kin. In Iranian law, which is derived from Imami jurisprudence, inheritance is divided into three categories. If individuals from the first category exist, the deceased’s assets are transferred to them; otherwise, they pass to the second category, and in the absence of the second category, they are transferred to the third category. In this context, "Hejab" means coverage, concealment, or hiding. "Hejab-e Erth" refers to a barrier that causes others to be either wholly or partially deprived of inheritance. However, "Hejab-e Erth" differs from other obstacles to inheritance and can be divided into various types. This research seeks to define "Hejab-e Erth," its types, and its conditions. Using a library-based method, we gathered and organized data, then created a checklist of these data, which we analyzed to compile this research.

A Comparative Study of the Legal Effects of Trust with Deposit and Loan in the Legal Systems of Iran, France, and England

One of the contracts commonly used in various forms in society today is the contract of deposit. The Civil Code, from Article 607 onwards, defines this contract and explains its rulings and effects. Similarly, the concept of trust (Trust) is one of the fundamental and widely used concepts in the legal systems of countries like the United States and England, which are influenced by their legal system. In this institution, the owner, by relinquishing their ownership rights, subjects it to a trust and transfers their legal ownership rights to a person called the trustee. Loan, in the jurisprudence and law of Iran, refers to a revocable contract by which one party permits the other party to use the property without compensation for a specified period. Therefore, the author, in this article, compares the legal effects of trust with deposit and loan in the legal systems of Iran, England, and France in a descriptive-analytical manner. The results indicate that, according to English law and the resulting interpretations, trust is not considered a contract and can somewhat be categorized under agreements. Trust cannot be regarded as a real contract in the sense commonly used in Iranian law.

Comparison of the Theory of Trust and Similar Institutions in Iranian and Common Law

The theory of trust is one of the most important theories in the law of obligations and stands in contrast to the theory of will sovereignty. This theory has a direct relationship with good faith. The theory of trust contains specific elements that have sparked differing opinions in common law countries. The United States, Canada, and Australia have accepted it, while countries like England have rejected it, similarly to how they reject unilateral obligations. This theory shares common points with the principles of unjust enrichment and reliance on property or actions and has been studied in relation to the theory of consideration. However, the characteristics of this theory include unpredictability, lack of comprehensiveness, lack of explanatory power, the absence of a necessary link between trust and obligation, the imposition of liability without fault, ambiguity in the concept of trust, undesirable judicial outcomes, and disregard for moral virtues. As mentioned, in Iranian law, some rules, such as the principles of unjust enrichment and reliance, bear similarities to this theory in non-contractual liabilities. In contrast, in common law, this theory has been compared and analyzed alongside estoppel, good faith, and unilateral obligations. Therefore, the present research conducts a comparative study of the evolution and scope of the application of the theory of trust in the law of obligations in Iran and common law through an analytical and descriptive method. It concludes that the acceptance of the theory of trust in both common law and Iranian legal systems is subject to criticism and, despite its similarities to various institutions such as agency, unjust enrichment, and reliance, it is more frequently raised in the context of civil liability than in the realm of obligations.

A Comparative Study of Ethnic Discrimination in Employment Law in Iraq and Iran

Discrimination in employment rights refers to unequal pay and benefits, access to job opportunities, and career advancement among individuals based on factors such as gender, race, ethnicity, religion, age, and social status. In Iraq, the country's constitution guarantees equal rights for all Iraqi citizens, regardless of ethnicity, race, religion, and other factors. Additionally, Iraqi labor and employment laws prohibit ethnic discrimination and require employers to act without regard to ethnicity when hiring and promoting employees. Similarly, in Iran, the country's constitution guarantees equal rights for all Iranian citizens. Iranian labor and employment laws also prohibit ethnic discrimination and require employers to act without regard to ethnicity when hiring and promoting employees. Despite the clarity of the laws in both countries, ethnic bias and favoritism have unfortunately replaced meritocracy in many organizations and institutions. This type of discrimination can have detrimental effects on individuals and society, as ethnic discrimination in employment rights violates the principle of social justice. This research paper, with a descriptive-analytical approach and relying on library documents, addresses the issue of employment rights and compares the two countries of Iraq and Iran. The comparative results of the present study show that both countries are committed to guaranteeing equal rights and benefits for their citizens. However, in Iran, discriminatory policies exist that lead to ethnic discrimination in certain industries and specific jobs and in Iraq, ethnic discrimination is illegal, and there is no difference between Iraqi citizens in employment.

Patent protection in the laws of Iran and the emphasis of European Union on the trips agreement

O direito de patente, a exploração do pensamento e da iniciativa do inventor representam um direito financeiro que pode ser negociado. Contudo, como este direito é imaterial e intangível, a propriedade não pode ser reivindicada apenas pela posse física. Em vez disso, o legítimo proprietário deve ser o primeiro indivíduo que o alcançou através de muito trabalho e esforço, permitindo-lhe beneficiar exclusivamente dele e evitando que os imitadores utilizem os esforços do inventor livremente e sem esforço. O registro de uma patente em nome do inventor torna-se crucial, pois serve como prova de que o titular é a pessoa original que concebeu a invenção com sucesso, estabelecendo sua propriedade legítima. Portanto, as patentes e outros activos intangíveis desempenham um papel vital no estabelecimento da propriedade dos inventores. O objetivo deste artigo é familiarizar os inventores com os procedimentos de patentes e enfatizar a importância do registro de suas patentes para garantir a proteção. Também analisa e estuda os sistemas de proteção de patentes nas leis do Irão e da União Europeia. A pesquisa conclui que para aceitar o acordo TRIPS e ingressar na Organização Mundial do Comércio são necessários esforços consideráveis, que incluem o alinhamento das leis nacionais relativas às invenções com regulamentações internacionais, como as da Organização Mundial do Comércio. Precisa-se cobrir as lacunas existentes nas nossas leis para promover a nossa adesão à Organização Mundial do Comércio (OMC) e para liberalizar o comércio, eliminando barreiras comerciais, garantindo que não haja desculpas para não aderir à organização.