Civil Liability of a Forced Guardian for the Marriage of a Minor with a Comparative Study in Iranian and French Law

Document Type : Original Article

Authors

1 Department of Law, South Tehran branch, Islamic azad University Tehran, Iran.

2 Department of Private and International Law, Faculty of Literature and Humanities, University of Religions and Denominations, Qom, Iran.

3 Department of Law, Faculty of Humanities, Islamic Azad University, Shahr-e-Qods Branch, Tehran, Iran.

Abstract

Objective: Early marriage, especially the marriage of a minor, is one of the most important challenges to children's rights, which has widespread consequences on the physical, mental, and social health of children. The present study aims to examine the foundations, conditions, and limits of civil liability of a forced guardian for the marriage of a minor and its comparative analysis in Iranian and French law.
Method: The present study, using a descriptive-analytical method and utilizing library resources, Imami jurisprudence texts, Iranian laws and regulations, French law, and doctrinal perspectives, has examined the jurisprudential and legal foundations of civil liability of a forced guardian and compared the two legal systems.
Results: The findings of the research show that in Iranian law, the forced guardian's right to marry a child is not absolute, and its legitimacy depends on respecting the child's interests and needs. In case of damage, civil liability can be established based on the rules of "La Zarar" and "Tasbib", Articles 1 and 7 of the Civil Liability Law and Article 7 of the Child and Adolescent Protection Law. On the other hand, French law, centered on the principle of "best interests of the child", prohibits the marriage of people under the age of eighteen, except in exceptional cases, and analyzes the responsibility of parents based on a protective approach and close to objective responsibility; in such a way that the burden of proving innocence is on the parents.
Conclusions: The research results show that the most important difference between the two legal systems is the basis of responsibility and the burden of proof. While in Iranian law it is the responsibility of the victim to prove the fault of the guardian, in French law it is the responsibility of the parents. Therefore, amending the internal regulations, strengthening the criteria for ascertaining expediency, increasing judicial and specialized supervision over child marriage, and predicting effective mechanisms for pursuing civil liability of a forced guardian can significantly improve the legal protection of children.

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References

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Cour de cassation, chambre commerciale, 23 janvier 2001, n 98-10.974.

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