JOURNAL OF JURISPRUDENCE AND ISLAMIC LAW
Year:2019 | Volume:10 | Issue:18 |Papers Count:13

The economic analysis of law, which is the analysis of legal rules based on economic principles and methods, is a new method for making legal rules more efficient. This method of analysis primarily emerged in common law countries which follow a liberal economic system. Therefore, it has been argued that it is impossible to talk about the economic analysis of law in Iran. Because Iranian law is based on Islamic jurisprudential system. In this article, we attempt to develop a framework for applying economic analysis of law in Iran by studying the rational independence and expediency. The results of this research, which has been conducted through a descriptive-analytic method, show that the application of economic methods in Iranian law is not contrary to the ethical and religious principles governing the law of Iran. On the contrary, the economic analysis of law is justified in the framework of religious sources. It can be proved that the results of economic analysis do not contradict the religious principles of domestic law.

Principle of Compensation, as one of the most essential principles for expropriation by state and municipalities, plays a major role in protection of private property right. On the one hand, it should bring the lowest cost to the public budget, and on the other hand, it should bring the least harm to the people. Failure of laws, and executive and judicial system, has caused many problems; thus, identification of compensation principles for expropriation is essential. By involving the right holders in determining the amount of compensation, the principle of partnership emphasizes the priority of the agreed method. The principle of acceleration emphasizes the payment of compensation before expropriation and also payment within a reasonable time-limit, without delay. The principle of equivalence tries to improve the calculation of damages. The principle of special trial puts the determination of damages in the jurisdiction of the special courts, provides good criteria for compensation, and improves it. This has been underestimated and it should be considered in legislation, interpretation and implementation.

This paper discusses the challenges threatening health and public health by describing and explaining human security within the framework of the right to public health. The right to public health that refers to the physical and mental illness in human societies and public health and embodies the obligations of states in the field of health and sanitation for human societies is particularly important. While such a right is considered as a practical approach to maintaining human security and cannot be denied by positive achievements, its absence can be faced with many challenges. The challenges depend on some factors, most notably the weakness in the warrant of the obligation to international cooperation between states and the primacy of their national benefit in people’ s access to public health. Our investigation suggests that these rights are considered to be human rights. Hence, states should, through international cooperation and accepting responsibility concerning the observance of this human right, increase their executive capacity for human security.

Beit Al Mal, to which the public treasury refers, belongs to the public and is governed by the government. The government, as its handler, can only withdraw it in the cases provided for by law; otherwise, the responsible authority or authorities will be prosecuted for embezzlement. The cases of withdrawal from Beit Al Mal are specified in the annual budget law or other laws like Islamic Penal Code. The Islamic Penal Code has sated the cases where the Diyah can be paid from Beit Al Mal. However, there are ambiguities in some cases. Determining the payment of Diyah from Beit Al Mal can be considered as an example of civil responsibility of the state. In some cases, the state without committing a fault, has been regarded responsible to pay Diyah. In this regard, it can be said that the requirement to pay Diyah in all respects does not comply with the general rules and the general principles of civil liability of the state. But it seems that regardless of the type of basis that can be used for government responsibility, the government's obligation to pay Diyeh from Beit Al Mal must be considered as a very positive aspect of the Islamic Penal Code. This article deals with ambiguities in explaining the payment of Diyat from Beit Al Mal.

With ownership of shares in stock companies, shareholders enjoy various rights; one of these rights is the preemptive right to buy new shares due to capital increasing through the issuance of new share. The nature of this right is not consistent with any of the views about the legal nature of shareholders rights. In fact, according to Article 167 and Article 166 of trade act, preemptive right is interruptible, inherently temporary, suspended to capital raising through the issuance of new share, and the legal nature of this right cannot be based on the adoptive concepts of choice in action and choice in possession, since choice in possession is an absolute right and the choice in action is not interruptible on behalf of debtor. The special right theory is also proposed because of the ineffectiveness of the division of financial rights to choice in action and choice in possession. Therefore, considering that the recognition of the attributes and rules of any legal concept is intrinsically relevant to its nature, with a new approach and through a descriptive-analytical study of legal jurisprudential concepts of preemptive right, it has been concluded that the right has the characteristics of a financial right including being waivable, transferable and valuable. This has been stipulated in order to protect the shareholders’ rights and trade according to the prioritization certificate.

The jury is a group of different classes of the community who work as representatives of public opinion in dealing with claims. Although this institution has been accepted in most legal systems, in rare cases, its admission is limited to criminal cases and it doesn’ t apply in the civil proceedings. However, in some legal systems, including the United States and Australia, the jury is also foreseen in civil cases. In this paper, we will study the position and the positive function of the jury in civil proceeding in the legal systems that have accepted the jury in civil cases and possibility of the acceptance of the jury in the legal systems of Iran. One of the important effect of the jury is the deterrence and encouragement aspect of that in tort cases in the legal system of United State.

In the current era, human-rights regional organizations, while enjoying appropriate human rights mechanisms, have often placed their priority in monitoring the human rights situation in member states and taking appropriate measures to deal with human rights violations in these countries. In recent years, the Organization of Islamic Cooperation, as a regional institution, has seen developments in the field of human rights that can be considered in the form of provision of human rights documents and the designing minimum mechanisms for the promotion of human rights in Islamic states. In addition to the quality of considering the human rights by the organization, this article will examine whether the approach of Organization of Islamic Cooperation has been extrinsic or intrinsic in concern with the documents of human rights and procedure of the organization. Finally, it is concluded the documents and procedure of the organization reveal that it has taken an extrinsic approach with an emphasis on the human rights situation of Muslims in non-member countries; meanwhile besides departing from the traditional approach of the organization, the recent approach to monitoring the human rights situation in some member states is indicative of a tendency towards an intrinsic approach to human rights. However, the organization's discriminatory response to human rights violations in member states is a major concern.

The present paper analyses the existing legal sources and proves that the civil courts’ judgments and warrants are of absolute rather than relative authority. Usually there is no need for enforcing the court’ s judgments and warrants against the third persons but according to this analysis in case of necessity those judgments and warrants would be principally enforceable against the third persons, too. Few reasons set forth for justifying the inclination to relativity principle, in the courts judgments and warrants are imperfect and cannot prove that standard, whereas deeming the judgments and warrants principally of absolute authority not only is a necessary principle in application of the civil procedure and judgment enforcement but also there are rigid reasons showing its acceptance by the Legislature. The legal establishment of third persons objection is another side of the judgments and warrants absolute authority principle; however, this establishment is not the only reason for the presence of that principle. Many other reasons including those outlined in Articles 44 and 146 of the Civil Judgments Enforcement Act prove this principle.

Appointment does not refer to specific employment laws; rather, it applies in more general rules, ranging from the power of a state to the appointment of a judge to a part of the district. In the area of public law, especially constitutional and administrative law, this concept has been widely used without a clear and substantive definition. We can hardly claim the concept of appointment has a history dating back to the formation of governments, though its original form has been lost. As governments change today, the question of what the legal nature of appointing executives, whether political or professional, is and what their effects are, remains unanswered. Administrative law books represent three views of the specific legal status, unilateral and contractual basis of appointment, namely employment. This descriptive-analytical study shows that the first two perspectives as the basis of appointment are in serious dispute. Also delegating administrative authority and system of affairs in the administrative hierarchy of the country in the form of legal representation in delegate power of attorney and even the hiring of individuals, despite some strategic analysis, is difficult. The results show that the appointment is consistent with the concept of rule 'of pacta sunt servanda' as a binding contract in the field of administrative law; therefore, effects of binding contract according to principles such as supremacy of will of the state and providing public expediency is borne on it. One of the effects of this analysis according to the principle of presumption of irrevocability of contracts is non-removal from erector; this is, of course, as long as the appointees are acting within the framework of defined management orders.

In Iranian law there are many legal institution such as debt transfer, release and debt donation to release debtor to pay. Despite some similarities, there are fundamental differences. The writers have paid little attention to the concept of debt donation. Some jurists believe that this gift is not correct because the debt could not be delivered. They believe that donation of debt takes place in the form of release and the result is the same in both. On this same basis, they also consider debt donation to third party as invalid. However, another group argues that the delivery is not only physical. Overpowering the gift is also important and occurs in donation of debt. In addition, if the subject of donation is at disposal of receiver, there is no need for new delivery. In debt donation, debt is at the disposal of debtor. Hence, there is no need for delivery. In this opinion, the initial effect of release differs from debt donation; debt donation leads to ownership of debt and the release leads to debt collapse and this difference leads to different effects. When the debt is donated to a third party, because, after debt donation, the third party becomes the owner of debt and can refer to debtor, delivery has taken place. In French law, a debt transfer can also be done for free; in this case, it will be possible to apply rules of donation to it.

This paper deals with the question whether the traditional definition of abandonment of ownership is a justifiable one or not. We also intend to consider the nature of some special legal activities in a descriptive and analytical manner. These activities are like abandonment of things, possibility for applying the abandonment concept over ownership separation, intellectual property rights and compatibility of abandonment concept in cases where the subject matter is a real estate and their consequences. Abandonment of property could be explicit or implicit. In some cases, legislator assumes that the owner has abandoned his property. For instance, legislature's sanction for non-registering a property following a common registering invitation is that the property amounts to a property with an unknown owner. As an owner of a thing can eliminate his legal financial right, owner of a financial right has such a right as to an incorporeal subject.

According to Article 3 of the law of civil procedure, judges are responsible to issue claims according to Islamic reliable sources, Fatwas, and legal principles when there is lack of law or ambiguity of law. Executive domains of Islamic reliable sources and Fatwas are written; therefore, they are distinguished while executive domains of legal principles are not written and they are not distinguished. But the relationship between legal principles and Islamic reliable sources are not distinguished. It is not known whether legal principles are prior to Islamic reliable sources of or not. The priority of legal principles to authoritative Islamic sources and Fatwa cannot be inferred from Article 3. Therefore judges should be free in issuing claims according to legal principles of rules or their interpretation of it. Hence, the legal principles are standards for interpretation of rules when there is ambiguity in law or as an alternative to law and as the basis for issuing claims. If the relationship between the executive territory of legal principles with Islamic reliable sources and Fatwas are clear, their distinction and performance will be better in courts.