Journal of Comparative Law
Year:2024 | Volume:11 | Issue:2|Papers Count:12

The formation of an agency contract creates rights and obligations for both parties involved. This includes the obligation for the representative to refrain from bad faith and misuse in transactions concluded on behalf of the principal. Sometimes, a representative may not exceed the limits of their powers and duties as defined in the contract. However, they might act in bad faith and misuse the rights granted to them under the agency agreement. As a result, they could conduct transactions that disregard the interests of the principal. Unlike the French legal system, which considers the right to invoke nullity for the principal in case of bad faith by the representative, the Iranian legal system has remained silent on the judgment of such transactions. However, based on jurisprudential and legal principles, the judgment of non-enforceability of such transactions seems more valid based on the principle of no harm or prohibition of misuse of legitimate rights, unless a legal act corrects the appearance of a certain type of legal act.

Custom is a source of legislation in the criminal justice system that forces society to react at the stage of sentencing and sometimes decriminalization or insisting on changing existing values; it intervenes as an expression of the public conscience of society in sentencing(court stage)and sentencing(execution of criminal conviction). In many criminal instances, the legislator has accepted the function and role of custom by expressing words such as "typically", "customarily", "habitually" and phrases such as "public opinion", "public decency" and "public mind"; although no specific solutions have been seen for it in criminal law. The main question of the present article is how and why customary law is effective in criminal law. The article aims to answer the above question in the field of terms that do not have a Sharia or legal definition and limitation, by examining the accepted theoretical foundations and comparative study of the jury, considering the Jury Law(2003) and the relevant regulations, and to propose the necessity of forming a jury in determining criminal cases as a practical solution for customary intervention as a powerful method in the criminal justice system, so that members of civil society can be used in trials in line with the teachings of participatory criminal policy. In this regard, by comparing legal systems, their approaches to this category are also briefly examined.

Recent Canadian law accepts divorce only when the marriage breakdown ‎‎occurs. Under Canada's 1986 Federal Divorce Act, the legislature mentions ‎‎three specific and logical reasons for a couple to file for divorce, indicating ‎‎the loss of a good relationship between the couple. These legally prescribed ‎‎reasons indicate the conditions under which common human intellect and ‎‎common sense do not suggest the continuation of marriage and request for ‎‎divorce‏. ‏These legal reasons and the process of reviewing them by judges in Canada, ‎‎can be study as a model for a comparative study of the legal system of ‎‎divorce and the process of applying and issuing it in Iran. Gaps in the ‎‎Iranian judicial system in the field of divorce, such as the lack of direct ‎‎access of the wife to the divorce application even in cases of physical ‎‎separation of the couple and the length of the divorce proceedings in the ‎‎Iranian judicial system due to mixing divorce claims with side claims of ‎‎dowry and alimony may be amended by means of comparative studies. ‎This article, with a comparative approach seeks to answer the question ‎‎whether it is possible to benefit from the experiences of other legal systems ‎‎to reach a balance point in the divorce law‏.‏

Among offenses against property and ownership, criminal damage has a special status, because its fulfillment requires causing damage to property belonging to another. In Islamic jurisprudence, the destruction of property belonging to another without the owner's permission is considered an example of trespassing, which creates the right of retribution and a demand for the injured party. Accordingly, in the Iranian legal system, simple criminal damage, depending on whether it is committed by setting fire or by another means, is criminalized respectively in articles 676 and 677 of the 1996 Taezirat Act. In contrast, in the English and Welsh legal system, criminal damage in the general sense, including arson, is provided in section 1 of the Criminal Damage Act 1971. A comparative study of the constituent elements of the offense of simple criminal damage in the aforementioned legal systems, relying on the aforementioned legal provisions, indicates that the Iranian legislator, by using some ambiguous phrases, has created disagreements in the separation of the components of the physical element of the offense of simple damage, and has neglected cases where the perpetrator of this offense has a mental state higher than criminal guilt and lower than intent. Accordingly, this article, using a descriptive-analytical method, seeks to propose solutions to the legislator, such as the need to use clearer terms to separate criminal behavior from the result of this crime, and the recognition of recklessness as an independent type of mental element, in order to more effectively deal with property vandals, through an analysis of the offense of simple damage in Iran, England, and Wales.

The digital economy has transformed social and financial structures, leading to increased efficiency and resource savings. However, digital currencies have introduced new opportunities and challenges, including security and legal threats that pose new dilemmas for law enforcement. This study examines the role and strategies of police in selected countries (the U.S., EU, Australia, Canada, Germany, and Iran) in combating digital currency-related crimes, analyzing differences and similarities in their approaches, training, and tools. The hypothesis is that due to variations in laws, technological infrastructure, and the level of digital currency adoption, police forces in these countries employ distinct strategies.Using a descriptive-analytical method, the findings reveal that countries have established comprehensive legal frameworks to address such crimes. For instance, the U.S. and the EU have robust regulations to monitor suspicious activities and combat money laundering and terrorist financing. Canadian police leverage advanced technologies like blockchain analysis and international cooperation to identify criminal activities. In Iran, the Cyber Police (FATA) combat cybercrimes through specialized units and oversight of digital exchanges, including shutting down illegal mining operations and raising public awareness. International collaboration and information sharing are crucial in tackling cross-border digital currency crimes. All countries must continuously update their strategies and technologies to effectively address these challenges, ensuring economic security and minimizing the misuse of financial technologies.

Predatory pricing is a strategic practice where dominant firms price goods or services below cost to eliminate competitors and establish market control, leading to market disruptions and monopolization. This practice differs from dumping and unfair competition. In Iranian law, despite references in Article 44 of the Constitution and the Customs Law, the lack of a clear legal definition, overlapping authorities, absence of specialized judicial processes, and weak enforcement mechanisms have limited effectiveness in addressing the issue. The World Trade Organization (WTO) treats predatory pricing within the scope of dumping, providing countervailing duties as its primary remedy. However, the European Union (EU) offers the most comprehensive framework, including a clear definition, detailed identification criteria, centralized authority under the Competition Commission, and remedies combining financial, behavioral, and structural measures. By comparing the Iranian framework to those of the WTO and EU, this article highlights significant gaps and inefficiencies in Iranian regulations. It concludes by recommending reforms, such as the establishment of an independent legal definition, assigning authority to a single regulatory body, revising enforcement mechanisms, and developing a cost-data registry to improve oversight and address predatory pricing effectively.The World Trade Organization (WTO) treats predatory pricing within the scope of dumping, providing countervailing duties as its primary remedy. However, the European Union (EU) offers the most comprehensive framework, including a clear definition, detailed identification criteria, centralized authority under the Competition Commission, and remedies combining financial, behavioral, and structural measures.By comparing the Iranian framework to those of the WTO and EU, this article highlights significant gaps and inefficiencies in Iranian regulations. It concludes by recommending reforms, such as the establishment of an independent legal definition, assigning authority to a single regulatory body, revising enforcement mechanisms, and developing a cost-data registry to improve oversight and address predatory pricing effectively.

Acid attacks are crimes against individuals that cause destructive, irreparable, and long-term damage to the victim's body and mind. Scientific confrontation with this behavior requires the adoption of a prudent and comprehensive criminal policy based on the components of the severity of punishment and protection of the victim. The present study, by adopting the descriptive and analytical method and taking into account the law of intensifying the punishment of acid attacks and supporting the victims of it, and the penal law of Bangladesh and the law on controlling acid crime, while analyzing the material and spiritual elements of this crime, assesses the criminal policy of these two countries toward this offense. Despite the innovations that Iran's new law has, compared to the previous one, there is still ambiguity in the behaviors covered by this law. This is even though there is no doubt about the two physical behaviors of injecting or feeding acid to one another in Iranian law, in the criminal policy of Bangladesh, because the Bangladeshi legislator has paid more attention to the criminal outcome by passing examples of physical behavior. In both countries, the crime of acid attack is tied to the result. The word “acid” is defined as a means of committing a crime in Bangladesh, while Iran's law does not define this word.

With the increasing advancement of digital technology, cookies have become an efficient tool for collecting user data and targeted marketing. The data tracked and collected through cookies enables businesses to provide more precise and efficient services and can pave the way for creating or stabilizing a dominant position in the market. In addition to disrupting the flow of fair competition, these actions seriously threaten the dynamism and innovation of data-oriented markets. Therefore, the research seeks a clear answer to the fundamental question of how firms with a dominant position can resort to abusive behavior and influence the competitive structure of digital markets by using cookies. This research employs an analytical-descriptive method to examine the approach of European Union law and analyze the position of Iranian competition law. In European Union law, this issue is assessed with a flexible approach based on protecting personal data and ensuring fair competition, but in Iranian law, due to the lack of comprehensive legal frameworks and weak supervisory mechanisms, the dimensions of this issue are still unclear. The findings from the comparative study show that a general rule is not available to determine the competitive fate of these actions, and careful analysis is possible according to the requirements of modern technology and the continuity of creative activity. Therefore, it is proposed that, to strike a balance between maintaining competition in the market and the legitimate rights of service providers, specific competition regulations be enacted regarding the interests of innovation and technology markets so that they remain under the supervision of the Competition Council.

Notices in charter party contracts play a fundamental role in initiating, maintaining, and terminating the obligations of the parties. From notices of readiness and estimated time of arrival to off-hire, redelivery, and withdrawal notices, these instruments function as mechanisms to ensure predictability, maintain contractual balance, and manage commercial risks. However, the legal consequences of breaching such notices vary across legal systems. Under Iranian law, the Maritime Code of 1964 addresses only a limited number of these notices and, in practice, reduces their enforcement to the general rules of contractual and civil liability. In other words, damages remain the sole available remedy for non-compliance. By contrast, English law, through judicial precedents and landmark case law, recognizes not only damages but also contractual termination as a complementary sanction. The central question of this research is the comparative examination of the legal consequences of breach notices in charter party contracts under Iranian and English law. The methodology is descriptive–analytical, employing a comparative study of statutory provisions and judicial practice in the two legal systems. The findings demonstrate that the absence of termination as a remedy under Iranian law creates shortcomings in the protection of shipowners’ and charterers’ interests, whereas English law, by combining both termination and damages, offers greater efficiency and predictability for stakeholders in the shipping industry.

Based on the principle of individualization of punishments, the authorized judge, on behalf of the ruler, pays attention to the characteristics, conditions, and circumstances of the offender in the matter of punishment. This research examines the inclusion of prescribed Islamic crimes in the principle of judicial individualization of punishment and a jurisprudential critique of the exclusion of mitigating aspects in prescribed Islamic crimes in the Islamic Penal Code. The research method is library and analysis of legal articles. The necessity of the discussion is to apply the legal issue of the principle of judicial individualization and the jurisprudential rule of expiation to the ruler's guidance in relation to the critique of Note 2 of Article 115 of the Islamic Penal Code approved in 1392, in order to show the mitigation of prescribed Islamic crimes. And from the findings of the research, it can be concluded that, based on the rule of ta'zir according to the judge's guidance, prescribed religious crimes are subject to the principle of judicial exclusivity. Based on the aforementioned jurisprudential rule and the differences in the amounts of prescribed religious punishment in narrations and their examples among jurists, excluding prescribed ta'zir crimes from mitigating aspects in the Islamic Penal Code approved in 1392 is not in accordance with jurisprudence, and accordingly, there are problems with the legislator.

In the domain of public law, language is not merely a vehicle of communication but a latent foundation of power distribution, state formation, and institutional legitimacy. This article undertakes a philosophical-comparative inquiry into the intricate relationship between language, power, and public order; a relationship crystallized in state language policies, the configuration of official languages, and the boundary-making between the legal and the social. Language is here theorized as a symbolic institution of legitimation, simultaneously a vector of domination and of possibility. Through an in-depth study of three legal systems, namely Iran, Switzerland, and Belgium, the article explores how state linguistic architectures are not mere cultural instruments, but constitutive elements of political trust and public legitimacy. In Iran, the state's exclusive reliance on Persian, absent meaningful inclusion of other linguistic groups, risks symbolic marginalization and erosion of institutional credibility. In contrast, the Swiss and Belgian models reveal how language, as a legal act and symbolic regulator, is restructured within layered and pluralistic frameworks. Drawing on Bourdieu, Habermas, and Lessig, the article posits that the official language is itself a legal institution—central to the architecture of legitimacy. This reconceptualization invites a critical rethinking of Iran’s language policies, cautioning that continued monolingualism may undermine the very conditions of political cohesion.

The Code of Criminal Procedure in any country is indicative of the criminal policy model governing its criminal justice system. The principal element within the criminal process that can influence the conviction or acquittal of an individual is the evidence adduced and the probative value accorded to it. Undoubtedly, the assessment of the value of evidence presented by the tripartite parties to criminal proceedings falls within the purview of judicial precedent. The European Court of Human Rights (ECtHR), as the highest judicial authority in member states of the European Union, and a judicial precedent in its broad sense within Iran, can serve as highly suitable benchmarks for evaluating these assessments. This is because certain types of evidence and their methods of acquisition may be deemed admissible and valuable under Iranian practice, whereas the process pertaining to the same evidence within the jurisprudence of the ECtHR might be considered fundamentally invalid. Consequently, through the analysis of the jurisprudence of both legal systems, this article concludes that the judicial authority's perspective and evaluation, on one hand, regarding the nature of the evidence itself, and on the other, regarding the interpretation of the method of its acquisition, collection, and the value conferred upon it by law, can significantly impact the criminal process and, ultimately, the proof of guilt or innocence of citizens.