PRIVATE LAW STUDIES
Year:2006 | Volume:- | Issue:70|Papers Count:14

The jurisprudential (fiqhi) instithtion of "the intelligents' position Commonsense "(bina'e oqala'), as an expression of the source "reasonll(aql) in Imamiyya jurisprudence (fiqh), can in an age of globalization reconcile "stability" with "transformation" and keep the long-lasting Islamic law living and dynamic. The Crucial question is how Fiqh has confronted with the new positions of "the intelligents", and which viewpoints have been taken by Islamic jurists (fuqaha) about their authority (hujjiyya) and validity. Three main viewpoints will be investigated here, and it will be concluded that "the intelligents' position" if some criteria and frameworks be observed, has a prominent capacity to ensure vividness of the Islamic Jurisprudence and to response to the contemporary demands.      

Law in the history of Iran has established a great relation with religion. This relationship between law and religion is not only found in Iran after the acceptance of Islam (7th century AC.) but also in the Sassanide period before the appearance of Islam, we can see the communication of law and zoroastrian religion. Many of zoroastrian legal practices are still alive in the Islamic jurisprudence. For example in Sassanide period, the marriage between a zoroastrian woman and a non-zoroastrian man was forbidden like the Islamic jurisprudence and actual Iranian civil. Law in which a non-moslem man can not marry with a Moslem woman. Likewise, the maturity age in some versions of zoroastrian texts is 9 in the case of girls and 15 in the case of boys like the popular Islamic legal theory.      

Mankind has two dimensions. On the one hand, he could be regarded as an autonomous being and on the other hand, he could be seen as a social specy that lives and communicates with other human species. These dimensions are not separatable and the society must be accepting his autonomy and its requirements. This autonomy entitles the mankind to have some special rights to his spiritual and corporal integrity, which is called "the right to privacy" that deters the others from interfering. He/she expects the law, as a system of organizing the structure of the society to provide some protections for his/her privacy. In some legal systems these protections are weak and in some others they are enough. Iranian legal system including Constitution and Statutes has provided some weak protections to this privacy. The Constitution, has not referred explicitly to this right, protections are not enough and it needs to pay more attention to this right. Whereas, Iran has ratified some international conventions that ask the governments to protect and respect the right to privacy, this right is not well known in our legal system. In present Article, in the first part, the notion of the right to privacy, regarding to the international conventions and the legal system of some countries, is reviewed. The notion of the owners of this right is also considered. In the second part, the samples of this right are being considered with a critical analysis in Iranian legal system.  

Prohibiting and fighting against torture is recognized as one of the most important achievements of international protection of all members of the human family. Today, freedom from torture is a fundamental right of human beings that must be protected under all circumstances. In fact, the prohibition of torture is absolute and non-derogable. Furthermore, this prohibition is considered as a norm of jus cogens. This paper tries to describe briefly the status of the prohibition of torture in contemporary international law.      

With regards to the fact that many stipulations in the criminal policy have been introduced to restore the damages inflicted on the victims of the crimes, today's criminal policy is heavily influenced by victimology. Hence, as the victimless crimes are not subject to the criminal policy, many of its stipulations can be enforced just in case there is a victim. The reason for the exclusion of "victimless crimes" from the criminal policy lies in certain characteristics of such crimes, which make them distinct from other crimes. Some of these characteristics are introduced and discussed in this article as follows:I. The criminal statistics relevant to such crimes suffer from very poor reliability, as their "dark number" is at its most extreme. II. Due to the absence of a plaintiff, such crimes barely lead to prosecution. III. Prevention of such crimes, particularly "situational prevention", would be quite unsuccessful; as those involved in such crimes display no tendency to prevention. IV. Although such crimes cause no direct damage to third parties, they can produce social insecurity and provide a hotbed for further crimes. V. The "restorative justice" which is based on compensation and restoration on behalf of the victims is not executable in such crimes. VI. The Prosecution procedure known as the "criminal mediation" which is dependant on the victim's participation is not executable either.    

In 1998, the control system of the European Convention on Human Rights underwent a fundamental Change. In that year, the European Commission and Court of Human Rights were abolished and replaced by a single body, namely, the European Court of Human Rights. Shortly afterwards, the need for a new reform was felt. As a result, in 2004, the Council of Europe elaborated Protocol NO. 14 with a view to enhancing the efficacy of the control system of the European Convention. The present article aims to discuss the major changes brought about by the said Protocol.      

The chief purpose of this article is to understanding of this Islamic rule that says: "if a person has authority to do something on behalf of somebody he must be approved". For example if minor after reaching the lega/competence claims his father has sold his property while he had not need to this sale or he has acted irresponsibility but the father rejects, in this case what dose Judge? dose he approve the father with his oath or not.      

Transmission of electronic documents like: Bills of exchange, promissory notes, currency transfers and contracts have been commonly used through corresponding establishments (e.g. SWIFT) in Europe, the United States and even in Asia. This evolution faces the challenge of digital technology towards communication of intention and will as well as contract formation in private law because of the potential of error in computer systems. So, no coordination of offer and acceptance will be possible. Presently, the scope of electronic commerce regulations in international commerce affairs has been developing and moving towards uniformity. So, considering and analyzing digital. technology beside the private law is necessary. And, we can use the fundamental principles and certainty of private law to interpret and comment on contracts in the case of differences and conflicts derived from the rules of electronic and private law.      

The concept of repairable damage is completely defined in the Civil Liability Act (1960) as well as in the Civil Law works. Despite this clarity, the same concept is subject to some restrictions in the judicial decisions of the Iranian Supreme Court: in comparison with its pure theoretical concept, the repairable damage in its judicial concept, as offered by the Supreme Court, has a narrower domain. While the loss of certain profits and the cost imposed on the victim as a result of mitigating damages are considered by the Doctrine as claimable, the Supreme Court has maintained that such losses are consequential. I have tried, in this article, to criticize this attitude of the Supreme Court on the basis of the legal principles and the Islamic Jurisprudence.