Analyzing of Legal Principles of the Method of
Custodianship about legacy with give attention to the civil
Law and the Law of “Owgaf”
Mohammad
Adibi-Mehr
Associate Professor, Tehran University (Qom Campus)
author
Hamed
Rahmani
Assistant Professor, Tehran University (Qom Campus
author
text
article
2015
per
According to the Article of civil law and “Fogaha’s” (Jurisprudence)viewpoints, if an endower has appointed as a responsible and he hasaccepted it too, he can manage it as “Motavally-e Mansoos” (specifiedcustodian) in the limitation that endower has determined, provided thathis acts are not against the statute. Generally, if an endowment doesn’thave any specific manager according to Article 81 of civil law, and anarticle of law of “Owgaf”, then the leader of Islamic country (“Valiy-eFagih”) should take all responsibility. But there are some disagreementsin jurisprudence about managing endowment. This paper is to explainsome various ideas of jurisprudents regarding assigning theresponsibility of general endowment to those who do not have anyadvantages under the “Valiy-e Fagih’s” management. The paper is alsoto suggest that some rules should be developed in order to have legalguaranties about acts of management.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
1
24
https://law.tabrizu.ac.ir/article_3454_c3a8000f795c7c71a204826f44ab5ae7.pdf
Confession in benefit of certain acknowledgee who is
known in brevity
,Mahdi
Hassanzadeh
Assistant Professor, Qom University
author
Maliheh
Hosseini
L.L.M student in private Law, Qom university.
author
text
article
2015
per
The jurists of Imamiyeh religion do not have a single idea aboutdegree of knowledge that the acknowledger should have aboutacknowledgee. In article 1271 of civil code, it is stated that validity ofconfession at least is subject to minimum knowledge aboutacknowledgee. The style of writing of this article has causeddisagreement between lawyers. This point may be the cause of differentjudgments in similar case. In addition, the manner of giving effect to thisconfession and also the way of determination of the real acknowledgee isnot stated in the code. After dealing with the subject in Imamiyehreligion and analysis of it in law, the present paper proves thatacknowledgee should be determinable in trial, and this matter is notlimited to doubt of acknowledger between two certain people, and wecan give effect to unknown confession which is determinable byavailable evidence in proceedings.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
55
66
https://law.tabrizu.ac.ir/article_3550_61a2e13da0cb47e361f36f16cd046da5.pdf
Interest Mortgage
Mohammad Hassan
Sadeghi Moghadam
Associate Professor, Tehran University
author
Amin
Ghasempour
M.A. in Private law
author
text
article
2015
per
According to the famous belief of Shi'a canons, for mortgage contractto be valid, capability of grasping in mortgaged property andsubsequently to be objective are considered as requirements and hencehypothecation of interest is void. This is due to the fact that profits arenot considered to be objective and as a result they are not graspable.Iranian legislature also complies with the mentioned belief and in Article774 of civil code, hypothecation of interest is regarded to be invalid. Thepresent article will deal with some evidence, regulations and doctrines,and after providing a critic of conditioned principle of grasping inmortgage contract, it will discuss possibility of benefit grasping. Finally,in order to determine the legal nature of interest mortgage in the presentlegal system, the paper will recommend the law maker reviewhypothecation of interest and use this legal institution economically.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
123
159
https://law.tabrizu.ac.ir/article_3553_6053559e116265650bc5aa592de7dfb3.pdf
Semantics of Intangible Property Rights in Legal Discourse
of Islam and Iran
Ali
Mazhar Gharamaleki
Associate Professor, Tehran University.
author
Fatemeh
Godrati
Ph.D. Student, Tehran University
author
Saeed
Nazari Tavakkoli
Assistant Professor, Tehran University
author
text
article
2015
per
The word “Intangible Property Rights” has not been clearly identifiedand categorized among Muslim jurists and lawyers and its exemplificationsrange is different in various definitions. This difference in concept anddomain of Intangible Property Rights exemplifications is not caused by thetranslated and imported expression from western legal literature since suchconfusion can be seen according to selected names and expression for thisconcept. Nowadays, given the importance of terminology in jurisprudentialand legal issues, in particular paying attention to intangible property rights,as the right whose sentences are the subject of contemporary jurisprudentialand legal researches is felt as the first stage to present a clear and uniteddefinition for property right. Therefore, present study tried to offer a newdefinition for intangible property right by studying and criticism of severalexisting definitions and thereby the study recognizes intangible propertyright as a separated concept from intellectual rights, moral rights and therights relating to personality which has relationship with these conceptions.In this regard, intangible property right is a right derived from 5 essentialexpediencies of the human and has been defined to support spiritualexpediencies of the personality. Consequently, the exemplifications range isderived from those 5 essential expediencies. Then, in order to study meaningof individual spiritual personality and value position of the property rightamong other rights, we identified exemplification of the property rightsdriven both by the human’s natural and ethereal needs by comparing andstudying the viewpoints about property right fundamentals in Islamic andwestern laws.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
161
190
https://law.tabrizu.ac.ir/article_3554_7b5416e32629734d682f79eff93dfb13.pdf
Re-Enacting a Law and its Consequences
Egbalali
Mirzaee
Assistant Professor, Shahrekord University
author
text
article
2015
per
Where the parliament re-enacts a law which is valid, there will be twodifferent laws with the same content. Yet it does not enact the same law.This manner of legislation has many problems: if one of those laws isrepealed, what happens to the other one? Can all those laws be repealed?Positive response is approvable by logic of norms and rules of lawbecause the concept of law does not correspond with subjects such asstatute, section and sub-section and so on, but it corresponds with thefunction of law. Therefore, postulation of the validity of abrogated ruleor perception by citing another section result in inanity of legislator’s actin repealing law. In addition, if the legislator amends a law deficient anddeclares that all conflicted laws are repealed, there might be a challenge;judicial orders cannot distinguish any contradictions. Also re-enactingdesuetuded law is not a good order of legislation. But high courts shouldcondemn applying laws in any circumstances.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
191
224
https://law.tabrizu.ac.ir/article_3555_30447a09f6225913c6761b9d0adbde44.pdf
A comparative study of Basics of revocation of marriage,
caused by the non-gender defects, in five Religions and
Iranian and Kuwait law
Parvin
Akbarineh
Assistant Professor, Islamic Azad University of Ahar
author
text
article
2015
per
According to Article 1123 of the Civil Code of Iran, spouses do nothave equity right in termination of marriage contract caused by the nongenderdefects. This regulation has been compiled conforming to opinionof the majority of Shi'a jurists. Accordance to this viewpoint, if thewoman has defects such as vitiligo, leprosy and blindness, her husbandcan terminate marriage contract, but if he has same diseases, his wife hasno right of revocation of marriage. There are no compelling reasons forthis discrimination. Due to scientific advances, if the diseases istreatable, the right of termination remains. In addition, in the current era,there are diseases that are harmful, but they are not the cause oftermination. According to the opinion of the minority of Shi'a jurists andSunni religious scholars, there are not differences between spouses inright of marriage termination caused by the same defect. At KuwaitiPersonal Status Act, the couples have the equity right in revocation ofmarriage, caused by the non-gender defects, The purpose of this studywas to investigate the reasons for discrimination in jurisprudence in civilcode. In this paper, legal and jurisprudence bases of these rules arestudied comparatively, by using analytical method. The results show thatamendments of Article 1123 of the Civil Code create legal equality forcouples, fairness and legal equity of spouses. According to Shi'a scholarsand Article 139 of Kuwaiti Personal Status Act, the above mentionedamendments are not inconsistent with Islamic law.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
25
54
https://law.tabrizu.ac.ir/article_3556_fe96b9e736ad65121e37b061cb7e774b.pdf
Authorities, Duties, and Liabilities of Judicial Agent in Civil
Procedure and Jurisprudence
Ebrahim
Shoarian
Professor, Tabriz University
author
Farshad
Rahimi
Research Assistant in International Business Law, University of Denver, United states
author
text
article
2015
per
Judicial agency is one of the most significant and practical subjects ofcivil procedure. This on one hand stems from the multiplicity ofgovernmental organizations and institutions and on the other hand theirneeds in bringing an action and defending their rights where it isrequired. In fact, the governmental organizations and institutions preferto vest defending and bringing of actions to their staff in terms of judicialagents. By doing so, the latters are empowered to take all necessarylegal steps in judicial procedures as well as administrative courts likeoffice of employment dispute resolution, tax dispute resolution boardand etc. Despite the fact that courts and administrative sources alwaysencounter with different kinds of judicial agency there is nocomprehensive rules to deal with the issues arises from such animportant issues. It has also not been examined by our legal academicsin detail. As a result the present article is an attempt to scrutinize thestatus of judicial agency and its authorities, duties and liabilities. Indoing so, besides making use of general principles of law we will rely onjurisprudence as well.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
5
v.
9
no.
2015
69
122
https://law.tabrizu.ac.ir/article_3676_5f9ba36378dcc67d4bb21c6fbf513a1e.pdf