University of TabrizJurisprudence and Islamic Law282108914720140220The Impact of Contributory Negligence on Civil Liability
in Islamic Jurisprudence: A Comparative StudyThe Impact of Contributory Negligence on Civil Liability
in Islamic Jurisprudence: A Comparative Study1291822FAAlirezaPouresmaeiliAssistant professor of law, Hakim Sabzevari universityJournal Article20130908Contributory negligence principle was considered a full defence in Roman Law and by virtue of this principle wrongdoers could be excluded from liability and compensation. Afterwards, this inflexible principle was applied in Civil Law and Common Law (English and American Law), but in the United States of America, courts modified it over years and some states replaced it by comparative negligence principle. Contributory negligence in its traditional sense in Roman and Common Law is similar to "Eqdam Rule" in Islamic Jurisprudence. Hence, the question is whether "Eqdam" is a full defence the same as contributory negligence or not or whether it leads to distribution of liability.Contributory negligence principle was considered a full defence in Roman Law and by virtue of this principle wrongdoers could be excluded from liability and compensation. Afterwards, this inflexible principle was applied in Civil Law and Common Law (English and American Law), but in the United States of America, courts modified it over years and some states replaced it by comparative negligence principle. Contributory negligence in its traditional sense in Roman and Common Law is similar to "Eqdam Rule" in Islamic Jurisprudence. Hence, the question is whether "Eqdam" is a full defence the same as contributory negligence or not or whether it leads to distribution of liability.https://law.tabrizu.ac.ir/article_1822_fc590ce4d388aa301ebc83cb9f518c06.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720140220Obligatory Good Faith in Immamieh JurisprudenceObligatory Good Faith in Immamieh Jurisprudence31681823FAMortezaHajipourAssistant professor, Shahid Madani university.Journal Article20111123Today, good faith and its domain constitute one of the most important issues of debate in legal circles. Obligatory scope of this two-dimensional concept involves correct behavior and respecting others' interests. Good faith and its relation to ethical concepts bring up a massive disagreement among legal systems about its acceptance or rejection, although the general tendency among the legal systems is accepting it. In spite of obvious negligence of the issue in Immamieh Jurisprudence, current use of different terms such as Najsh, Tallaghi, Rokban, Gaaedeh Lazarar, etc. confirms the idea that good faith and its support have been seriously taken into account in Immamieh jurisprudence.Today, good faith and its domain constitute one of the most important issues of debate in legal circles. Obligatory scope of this two-dimensional concept involves correct behavior and respecting others' interests. Good faith and its relation to ethical concepts bring up a massive disagreement among legal systems about its acceptance or rejection, although the general tendency among the legal systems is accepting it. In spite of obvious negligence of the issue in Immamieh Jurisprudence, current use of different terms such as Najsh, Tallaghi, Rokban, Gaaedeh Lazarar, etc. confirms the idea that good faith and its support have been seriously taken into account in Immamieh jurisprudence.https://law.tabrizu.ac.ir/article_1823_72c8921b7668e1d9d068dceaba50bd63.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720140220Conflict of Testimonies in the Shiite JurisprudenceConflict of Testimonies in the Shiite Jurisprudence69961824FAHosseinaliSaadiAssociate Professor, Emam Sadegh UniversitySeyyed SalmanMortazaviM.A. in Jurisprudence and Islamic Law, Emam Sadegh University.Journal Article20111227Inconsistency between testimonies is known as conflict of testimonies. Different kinds of conflicts fall under four categories: 1- the conflicts between two persons who both have the ability to use and manipulate a supposed property. 2- The conflict between two persons one of whom has the ability to use and manipulate the property under quarrel. In such a case either testifiers of two sides of the lawsuit express the cause of ownership or their testifiers do expressing the cause of ownership or only the testifier of one side of lawsuit expresses the cause of ownership. Also it should be taken into account that the cause of ownership is sometimes repeatable and sometimes non-repeatable. 3- The property is under another person’s possession. 4- Neither of the two side of lawsuit has the ability to use and manipulate the property. This problem is widely a matter of disagreement in Shiite jurisprudence and consequently, in some forms of the problem, some claims of opposing consensus may have also been suggested. The leading cause of such a huge differences is nothing except dispersed and different narrations and Hadiths. The present paper is to enumerate and analyze Shiite jurisprudents' views and take into consideration the arguments advanced by them. Finally, a solution for reconciliation of apparently inconsistent Hadiths and narrations will be suggested. Based on such a solution, in the first form, the property should be divided equally between two persons who claim its ownership. In the second form, the evidence provided by another person except those who claim the property is preferred. In last two forms, lottery is the solution.Inconsistency between testimonies is known as conflict of testimonies. Different kinds of conflicts fall under four categories: 1- the conflicts between two persons who both have the ability to use and manipulate a supposed property. 2- The conflict between two persons one of whom has the ability to use and manipulate the property under quarrel. In such a case either testifiers of two sides of the lawsuit express the cause of ownership or their testifiers do expressing the cause of ownership or only the testifier of one side of lawsuit expresses the cause of ownership. Also it should be taken into account that the cause of ownership is sometimes repeatable and sometimes non-repeatable. 3- The property is under another person’s possession. 4- Neither of the two side of lawsuit has the ability to use and manipulate the property. This problem is widely a matter of disagreement in Shiite jurisprudence and consequently, in some forms of the problem, some claims of opposing consensus may have also been suggested. The leading cause of such a huge differences is nothing except dispersed and different narrations and Hadiths. The present paper is to enumerate and analyze Shiite jurisprudents' views and take into consideration the arguments advanced by them. Finally, a solution for reconciliation of apparently inconsistent Hadiths and narrations will be suggested. Based on such a solution, in the first form, the property should be divided equally between two persons who claim its ownership. In the second form, the evidence provided by another person except those who claim the property is preferred. In last two forms, lottery is the solution.https://law.tabrizu.ac.ir/article_1824_9c7402f719a16940f84dc70193fa340a.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720140220Standpoint of Article 103 of the United Nations
Charter in General International LawStandpoint of Article 103 of the United Nations
Charter in General International Law971221825FASatarAziziAssociate Professor, Bu`Ali Sina University.Journal Article20130423The meaning and scope of the article 103 which describes the precedence of the charter to any other international agreement, is ambiguous. This ambiguity has not been removed even in the Vienna Convention on the Law of Treaties 1969 . I seek to explain the standpoint of this article in general international law. It seems that the decisions of the UN Security Council should prevail any other international agreement and this effect has extended to customary obligations. The importance of the United Nations’ charter as a constitution of the international community has led to acceptance of the precedence of the Charter over other international obligations even for non-state parties or regional or international organizations. The legal effect of article 103 is the suspensions of contradictory obligations as far as this contrast is remaining.The meaning and scope of the article 103 which describes the precedence of the charter to any other international agreement, is ambiguous. This ambiguity has not been removed even in the Vienna Convention on the Law of Treaties 1969 . I seek to explain the standpoint of this article in general international law. It seems that the decisions of the UN Security Council should prevail any other international agreement and this effect has extended to customary obligations. The importance of the United Nations’ charter as a constitution of the international community has led to acceptance of the precedence of the Charter over other international obligations even for non-state parties or regional or international organizations. The legal effect of article 103 is the suspensions of contradictory obligations as far as this contrast is remaining.https://law.tabrizu.ac.ir/article_1825_03733d0ecd550526280cc22474f0fe37.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720130227The Position of Prosecutor in Modern
Criminal Policy and Fair Trial RequirementsThe Position of Prosecutor in Modern
Criminal Policy and Fair Trial Requirements1231481826FAMohammad JavadFathiAssistant Professor, Tehran University (Qom Campus)DadyarHadiPh.D in Criminal Law and Criminology.Journal Article20121127Fair trial is a process based on accused person's entitlement to all rights of defence and equal possibilities and conditions with his party to procure defence, the breach of whose provisions would cause deprivation of trial from the quality of justice and observing its criteria would fulfill the promise of a fair trial. The public prosecutor plays a key role in laying the foundations of criminal cases and non-observance of fair trial requirements in different stages of criminal process, especially the preliminary investigation stage, can lead the proceedings to adopting unfair decisions. Hence, the primitive position of public prosecutor's office has changed since two hundred years ago, and great changes in modern criminal policy have taken place. However, legislators have neglected this development and, through granting authority to public prosecutor in various stages of criminal process, breached the requirements of fair trial including the principle of neutrality, equality of arms, judicial independence, and separation of various sections of proceeding. In the proposed code of criminal procedure, there is no remarkable progress in this field. Observation of fair trial requirements and defence rights of the accused requires many reforms to be accomplished in criminal procedure of our country. In this paper, these reforms will be discussed.Fair trial is a process based on accused person's entitlement to all rights of defence and equal possibilities and conditions with his party to procure defence, the breach of whose provisions would cause deprivation of trial from the quality of justice and observing its criteria would fulfill the promise of a fair trial. The public prosecutor plays a key role in laying the foundations of criminal cases and non-observance of fair trial requirements in different stages of criminal process, especially the preliminary investigation stage, can lead the proceedings to adopting unfair decisions. Hence, the primitive position of public prosecutor's office has changed since two hundred years ago, and great changes in modern criminal policy have taken place. However, legislators have neglected this development and, through granting authority to public prosecutor in various stages of criminal process, breached the requirements of fair trial including the principle of neutrality, equality of arms, judicial independence, and separation of various sections of proceeding. In the proposed code of criminal procedure, there is no remarkable progress in this field. Observation of fair trial requirements and defence rights of the accused requires many reforms to be accomplished in criminal procedure of our country. In this paper, these reforms will be discussed.https://law.tabrizu.ac.ir/article_1826_25e52c0fd28cbd834bcf613d3f7623ef.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720130227Legacy After Death of Deceased
A Legal And Jurisprudence-based StudyLegacy After Death of Deceased
A Legal And Jurisprudence-based Study1491761827FASeyyed MohammadmahdiQabuli DorafshanAssistant professor, Ferdowsi University of MashhadSeyyed MohammadhadiQabuli DorafshanPh.D. student in Jurisprudence (Feqh) and Principles of Isamic Law, International Branch of Ferdowsi UniversityJournal Article20130120An important question after the testator's death is whether the possession of the heirs of legacy takes place after the testator's death immediately or it is dependent on paid- off debts and the Wills and Testaments? Some of the jurists believe that before the payment of debts and Wills and Testaments the legacy remains in possession of the deceased. According to another theory, if the debt is pervasive in the legacy, it is not transferred to the heirs and is considered deceased property. Others believe that the unstable possession of the legacy upon death will be transferred to the heirs of the deceased. The practical result of the ideas discussed above is obvious in the possession of the legacy benefits immediately after death until the payment of debts and also in the embryo inheritance by sperm insemination after death of testator.<br />This article presents a critical review of evidence drawn upon by different theories and argues that the unstable possession theory of the heirs on the legacy upon the testator's death is relatively stronger than other theories.An important question after the testator's death is whether the possession of the heirs of legacy takes place after the testator's death immediately or it is dependent on paid- off debts and the Wills and Testaments? Some of the jurists believe that before the payment of debts and Wills and Testaments the legacy remains in possession of the deceased. According to another theory, if the debt is pervasive in the legacy, it is not transferred to the heirs and is considered deceased property. Others believe that the unstable possession of the legacy upon death will be transferred to the heirs of the deceased. The practical result of the ideas discussed above is obvious in the possession of the legacy benefits immediately after death until the payment of debts and also in the embryo inheritance by sperm insemination after death of testator.<br />This article presents a critical review of evidence drawn upon by different theories and argues that the unstable possession theory of the heirs on the legacy upon the testator's death is relatively stronger than other theories.https://law.tabrizu.ac.ir/article_1827_4746439c380b9dbb1d84df83c1ccd706.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720130227Interest Warranty in Imam Khomeini's ViewInterest Warranty in Imam Khomeini's View1772032065FAAbbasKalantari KhalilabadAssistant professor, yazd university.SalehSaadatPhD student of Islamic law and JurisprudenceJournal Article20130315Research on jurisprudence arguments about warranty shows that from Islamic jurists view what is certain is the warranty of the original and substitute. Interests warranty is an issue that has caused many divergent views among Islamic jurists. Regarding diversity of interests and the quality of destructions each one has caused, some jurists believe in a detailed account, some other find it absolutely resolute and some other don’t accept it at all, so the interest warranty and the responsibility that is regarded for its destroyer is the most important issue which deserves in detail investigation. In this article, after confirming the hypothesis that the guarantor is responsible for interests warranty in all cases (resolution, the original and substitute), we are going to consider Islamic jurist’s views, specially imam Khomeini’ s views, in this case and suggest an independent rule named interests warranty by regarding the reasons of legitimacy of the rule and conforming to definite and accepted principles. This article seeks to offer this rule in courts as the independent reason until a its special status can be established among the jurisprudence rules.Research on jurisprudence arguments about warranty shows that from Islamic jurists view what is certain is the warranty of the original and substitute. Interests warranty is an issue that has caused many divergent views among Islamic jurists. Regarding diversity of interests and the quality of destructions each one has caused, some jurists believe in a detailed account, some other find it absolutely resolute and some other don’t accept it at all, so the interest warranty and the responsibility that is regarded for its destroyer is the most important issue which deserves in detail investigation. In this article, after confirming the hypothesis that the guarantor is responsible for interests warranty in all cases (resolution, the original and substitute), we are going to consider Islamic jurist’s views, specially imam Khomeini’ s views, in this case and suggest an independent rule named interests warranty by regarding the reasons of legitimacy of the rule and conforming to definite and accepted principles. This article seeks to offer this rule in courts as the independent reason until a its special status can be established among the jurisprudence rules.https://law.tabrizu.ac.ir/article_2065_f6a34bca10da47248d12c95853e05b15.pdfUniversity of TabrizJurisprudence and Islamic Law282108914720130227An Investigation of Withholding Judgment
on Human CloningAn Investigation of Withholding Judgment
on Human Cloning2052262066FAMohammadsadegTabatabaeiAssistant professor, Isfahan universityMaryamMirahmadiPh.D Student, Islamic Azad University, Isfahan BranchJournal Article20121207Human cloning is one of the issues which has been challenged in different areas such as theology, law, ethics and jurisprudence, and has also attracted the attention of contemporary scholars due to its relation with basic social and individual human affairs .Sunni scholars unanimously condemn human cloning and believe that it is an illegitimate act. Shi'a scholars, however, have different opinions about the act of cloning; their perspectives have been formulated in terms of four fatwas including: absolute permission, limited permission, primary ban and secondary ban. In this paper, human cloning is first briefly discussed from a scientific point of view and then withholding it from the point of view of Shiite clerics is evaluated.Human cloning is one of the issues which has been challenged in different areas such as theology, law, ethics and jurisprudence, and has also attracted the attention of contemporary scholars due to its relation with basic social and individual human affairs .Sunni scholars unanimously condemn human cloning and believe that it is an illegitimate act. Shi'a scholars, however, have different opinions about the act of cloning; their perspectives have been formulated in terms of four fatwas including: absolute permission, limited permission, primary ban and secondary ban. In this paper, human cloning is first briefly discussed from a scientific point of view and then withholding it from the point of view of Shiite clerics is evaluated.https://law.tabrizu.ac.ir/article_2066_99b649716810c773f8e8670d1330a0d5.pdf