The Encyclopedia of Comparative Jurisprudence and Law

Bankruptcy, as an exceptional condition within contractual relations, entails a specific legal regime established to regulate the relationship between the bankrupt debtor and creditors. Legislative policies in this domain play a crucial role in maintaining a balance between the rights and interests of both parties. This study aims to conduct a comparative analysis of legislative policies for the protection of bankrupt debtors and creditors within the legal systems of Iran and France, based on the theory of contractual justice. The research method is descriptive-analytical and comparative, and data have been collected through the study of library sources, statutory laws, judicial precedents, and both jurisprudential and doctrinal opinions. The primary research tool involves content analysis of legal texts and comparison of principles and rules in the two legal systems under study. The findings reveal that the French legal system has made considerable efforts to reintegrate the bankrupt individual into the economic cycle while preserving the rights of creditors, and that its protective policies demonstrate greater flexibility. In contrast, in the Iranian legal system, although certain protections for creditors are stipulated, the protective rules for the bankrupt party—particularly regarding the restoration of economic credibility—are limited and ineffective. The conclusion of this study underscores the need to revise Iran’s bankruptcy laws with an emphasis on contractual justice and to create a balance between the legitimate interests of the creditor and the bankrupt debtor. In light of the research findings, it is recommended that the Iranian legislature emulate the successful policies of French law and formulate and implement more dynamic protective regulations in line with broader economic and social objectives.

ABSTRACT

The rule of Ma Yuzman (that which entails liability) and Ma La Yuzman (that which does not entail liability) is one of the significant doctrines in Islamic jurisprudence, primarily concerned with determining liability or non-liability and civil responsibility in transactions and contracts. Despite its well-established position in jurisprudential sources, the practical application of this rule faces considerable challenges. These include the precise articulation of the concept of liability in non-delivered transactions, the extent of the rule’s influence on tortious liability, and its compatibility with contemporary legal concepts. This article adopts a critical-analytical approach to examine the foundations of the rule, assess the doctrinal disagreements among Imamiyyah jurists, and analyze its application in the Iranian legal system. The research method employed is descriptive-analytical, based on library sources, and the presented analyses are grounded in rigorous jurisprudential reasoning and systematic comparative critique. In this regard, the relationship between the rule of Ma Yuzman and other rules such as Tasbib (causation), Ghorur (deception), and Itlaf (destruction) is explored, and the strengths and weaknesses of relying on this rule in civil liability claims are critically assessed. Furthermore, the paper highlights existing jurisprudential and legal challenges, emphasizing the need to revisit the concept of liability in light of modern economic and transactional developments. It also offers recommendations for enhancing theoretical precision and ensuring proper application of the rule within the Iranian legal framework. This study aims to demonstrate that without a precise redefinition of the rule’s components and a clear delineation of its conceptual boundaries, effective and transparent invocation of the rule in modern legal contexts remains unattainable.

Iran-US relations have been affected by numerous political and legal conflicts over the past few decades. One of the most important aspects of these relations is the legal disputes between the two countries, which have expanded since the Islamic Revolution in Iran and the continuation of hostile relations. This article examines the regime of determining damages in legal disputes between Iran and the United States and analyzes the impact of these disputes on bilateral relations between the two countries. The main question of the research is how legal disputes and rulings issued by international judicial authorities, especially the International Court of Justice and the Court of Arbitration, have affected relations between Iran and the United States? The research method is a qualitative analysis that examines international documents, judicial decisions, and reliable legal sources and analyzes their political and legal effects. The findings show that legal disputes between the two countries, which include issues such as human rights violations, terrorism, confiscation of property, and military attacks, have increased hostilities and strained relations between the two countries. Also, the failure to enforce legal rulings and political interference by the United States has further complicated bilateral relations and expanded the scope of new legal claims in domestic and international courts.

The prevention of offenses related to extra-urban roads—particularly violations leading to road traffic accidents—is one of the fundamental challenges in the criminal policy-making of nations and requires the formulation and implementation of an efficient, evidence-based, and deterrent legislative criminal policy. This article, through a comparative approach, examines the legislative criminal policy of the Islamic Republic of Iran and the Federal Republic of Germany in the domain of preventing extra-urban road crimes. The findings indicate that Iran primarily adopts a traditional punitive approach, focusing on post-offense penalties such as imprisonment, fines, and temporary suspension of driving licenses, while lacking effective preventive infrastructures such as mandatory education programs, psychological assessments, or a comprehensive demerit point system. Germany's criminal policy, by emphasizing specific prevention, the rehabilitation of high-risk drivers, and inter-institutional coordination, has achieved significant outcomes in reducing the incidence of road-related offenses, especially on extra-urban routes. Ultimately, the study suggests that Iran's legislative criminal policy should move toward a more integrated and preventive model by drawing on Germany's successful experience and avoiding exclusive reliance on penal sanctions.

The aim of this study is to conduct a comparative analysis of the conditions and consequences of flagrant offenses (caught-in-the-act crimes) in Iranian and American law using a descriptive-analytical method. The findings suggest that such a comparative approach can contribute to a better understanding of the strengths and weaknesses of each legal system and offer recommendations for improving domestic legislation. In Iranian law, a flagrant offense refers to a crime for which sufficient evidence of its commission exists either during the act or immediately afterward. Due to its obvious nature, this type of crime necessitates a more expedited investigation and prosecution process. A similar concept exists in American law, referred to as an "open" or "in-progress" crime. In the American legal system, law enforcement officers are authorized to arrest suspects without a judicial warrant, provided there is sufficient evidence of a crime having occurred. The main differences between the Iranian and American legal systems are observable in various aspects, including their approach to flagrant offenses, the authority granted to the police, and the conditions under which an arrest can be made without a warrant. In Iran, Islamic law and religious principles serve as the primary foundation for defining legal frameworks. These laws place significant emphasis on religious and Sharia-based concepts and may sometimes offer specific interpretations of what constitutes a flagrant offense. In contrast, the American legal system is based on constitutional principles and civil rights. In the United States, individual freedoms and civil liberties hold considerable importance, and the laws are structured in a way that seeks to safeguard these rights. For instance, in the U.S., police officers generally require a judicial warrant to make an arrest, except in particular circumstances where the crime is evident and ongoing. Meanwhile, in Iran, police authority may be broader in some cases, and the criteria for warrantless arrests may be defined differently. These distinctions illustrate the influence of culture, religion, and historical background on the legal systems of the two countries and demonstrate how social and political values can shape the legal framework.

جرم‌اِنگاری رفتار شهروندان امری خلاف اصل محسوب می‌شود که در تعارض با اصول مهمی از قبیل برائت و اباحه می‌باشد. اهمیت این موضوع در جایی متبلور می‌گردد که جرم‌اِنگاری از طرفی موجب محدود شدنِ حقوق و آزادی‌های بنیادین شهروندان شده و از طرف دیگر امکان خودکامگی قوای حاکمیت را فراهم می‌سازد. چنین مطلبی در خصوص جرائمی همچون تهدید که ضرر بالفعلِ ملموسی در مخاطبان ندارد بیش از پیش به چشم می‌خورد. البته درکِ دقیق نسبت به این موضوع مستلزم مداقّه و بررسی مبانی فقهی و حقوقی و اصول جرم‌اِنگاری تهدید می‌باشد. مهمترین مبانی حقوقی جرم‌اِنگاری تهدید را می‌توان اصل ضرر، پدرسالاری قانونی و اخلاق‌گرایی حقوقی برشمرد. در این پژوهش که به روش توصیفی-تحلیلی صورت پذیرفته است، مشخص می‌گردد که هر چند در خصوص مبانی و اصول جرم‌اِنگاری تهدید در فقه امامیه تصریحی وجود ندارد، لیکن با مطابقت مبانی جرم مذکور با قواعدی همچون حرام بودنِ ترساندن دیگری از روی ستم، مقدمه حرام و تجرّی می‌توان ارتکاب چنین رفتاری را ممنوع دانست.

The influence of social media and public opinion pressure on criminal policy is one of the critical and complex issues in the fields of legal and criminological studies. In the digital age, social media serves as a powerful tool in shaping public opinion and influencing state policies and decisions regarding the handling of violent crimes. This phenomenon not only raises public awareness about the occurrence of violent offenses but also exerts significant social and political pressure on judicial and governmental authorities to respond more swiftly in such cases. The present study examines how social media and public opinion impact criminal policy and judicial decision-making in the context of violent crimes and analyzes the effects of these interactions on legal reforms and penal strategies. Ultimately, the findings reveal that, at times, pressure resulting from the rapid reactions of public opinion may lead to hasty and unprofessional criminal decisions, which in turn can generate new challenges within the criminal justice process. Therefore, this study highlights the necessity of maintaining a balance between prompt responses to social pressures and adherence to legal principles in addressing violent crimes.

One of the components of human rights for any bureaucratic and political system is the guarantee of human dignity in the face of governmental institutions. In the meantime, protecting citizenship rights by modifying the power and responsibility and accountability of all government and government officials and including them is required by law; hence, the anticipation of a variety of oversight mechanisms, such as judicial oversight by ordinary courts or administrative courts. Provided by the law of the subject. In the German Roman legal system or countries favored by this model, the Supreme Administrative Court is responsible for "judicial oversight" of state appeals and decisions. This has also been the case in the Iranian legal system, but some institutions, such as the Guardian Council, have been excluded from the jurisdiction of the Court of Administrative Justice. In light of the status quo, the law is clear and transparent and does not withstand any interpretation; it is in fact not approved by the Guardian Council's decisions and decisions under Article 12 of the Administrative Justice Act. But any subject matter has a free legal interpretation, and the doctrine can be a turning point in that it means that the reasons for the uncontrollability and the requirements and requirements of the Council of Guardians need to be clarified. In this paper, the authors will explain this topic in a descriptive-analytic way. As a result it can be said that the rule of law, the principle of separation of powers, the principle of legitimate expectation are justified by the need for the Council of Guardians to justify the principles. Preventing abuse of power, preventing judicial error, preventing unreasonable decisions, and adherence to the principle of proportionality are prohibitions on conduct based on subject matter that may require discussion of oversight.