A Critique of Article 1216 of Iranian Civil Code and A Proposal for the Theory of a Fair Responsibility for Minors and the Mentally ill (A Comparative Study)

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Abin Alireza

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Journal Paper

Paper Information

Journal: QUARTERLY OF LEGAL ENCYCLOPEDIAS Year:2020 | Volume:3 | Issue:8 Page(s): 15-52

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Title

A Critique of Article 1216 of Iranian Civil Code and A Proposal for the Theory of a Fair Responsibility for Minors and the Mentally ill (A Comparative Study)

Author(s)

Abin Alireza | Issue Writer Certificate

Keywords

Civil Liability

Article 1216 of Civil Code

Articles 3

and 7 of Civil Liability Code

Fair responsibility

Principle of full compensation

Subjective and objective criteria

Abstract

Basically, the dominant approach in the Iranian Civil Liability law system and the non-contractual liability system in Islam is a consequentialist, restorationist and rectificationist approach, which is also rooted in the traditional thinking of the concept of justice, that is based on balanced retaliation and establishment of arithmetic equity and proportional equity, and in its extreme form causes a maximum tendency towards the concept of corrective justice and transforms the criteria of Civil Liability in all fundamental areas, elements and effects into an objective criteria. Nevertheless, the new Civil Liability law does not accept these extremes in the application of objective criteria and does not tolerate mere emphases on full rectification of the damaged legal relationship, but also glances-albeit exceptionally – at the personal situation of an injurer, one of the effects of which is to identify and formulate the theory of "fair responsibility"; a view that has seriously challenged the application of the principle of indisputable, full, and immediate compensation in the field of Civil Liability effects and has transformed the criteria of liability in this area from an objective to a subjective one. But the question is, what is the approach of the Iranian legislature towards this theory? In response, it should be mentioned that contrary to the strong tendency of comparative law in identifying this theory, but this view has a vague face in the system of aboriginal law and we do not see much recognition of it-at least as an exceptional theory. Therefore, in the present article, we seek to identify this theory in Iranian law and based on that we will critique Article 1216 of the Civil Code; Therefore, in the present article, an attempt was made to recognize this theory in Iran’ s law, and investigate Article 1216 of Iranian Civil Code accordingly. In the meantime, although the author does not claim that the application of this theory applies to all types of liability, except for the liability of minors and the mentally ill, but it is not unreasonable to expect general theories and broad results from a case study.

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APA: Copy

Abin, Alireza. (2020). A Critique of Article 1216 of Iranian Civil Code and A Proposal for the Theory of a Fair Responsibility for Minors and the Mentally ill (A Comparative Study). QUARTERLY OF LEGAL ENCYCLOPEDIAS, 3(8 ), 15-52. SID. https://sid.ir/paper/784230/en

Vancouver: Copy

Abin Alireza. A Critique of Article 1216 of Iranian Civil Code and A Proposal for the Theory of a Fair Responsibility for Minors and the Mentally ill (A Comparative Study). QUARTERLY OF LEGAL ENCYCLOPEDIAS[Internet]. 2020;3(8 ):15-52. Available from: https://sid.ir/paper/784230/en

IEEE: Copy

Alireza Abin, “A Critique of Article 1216 of Iranian Civil Code and A Proposal for the Theory of a Fair Responsibility for Minors and the Mentally ill (A Comparative Study),” QUARTERLY OF LEGAL ENCYCLOPEDIAS, vol. 3, no. 8 , pp. 15–52, 2020, [Online]. Available: https://sid.ir/paper/784230/en

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