ISLAMIC LAW RESEARCH JOURNAL
Year:2020 | Volume:21 | Issue:1 (51)|Papers Count:12

Witness is one of proofs that when its requirements are gathered proves the subject of action and judge is obliged to render the verdict according to it and its validity is not contingent on certainty of judge. But its depending on not certitude of judge against it, is discussable and the research on this field shows that in religious jurisprudence, the certainty of judge against testimony causes the invalidity of witness and the judge should deny rendering judgment according to it. Our Civil Code has accepted this matter and has explained it in article 1319. Meanwhile, about certainty of judge against testimony, situation in religious jurisprudence and in law is not similar and despite the fact of emphasis on necessity of reversal of judgment in such situation in religious jurisprudence, in law, reversal of judgment in such situation depends on requirements, respites and regulations of complaint against judgments.

One of the issues of the law of obligations in France is "modality" that it has been translated in the dictionary in condition and it's better to interpret the complications of the obligation that regardless of the source of obligation usually applies to all contractual and non-contractual obligations. One of these modalities is the indivisibility of the subject of obligations. Occasionally there are many parties for the obligation and the obligor and the obligee are numerous that obligation is divised. This is a principle in the law of obligations. But sometimes the subject of the obligation is indivisible. The obligation is indivisible when the obligor and the obligee are numerous and it has been created with one source and the subject of this obligation is indivisible that such obligation is subject to a certain legal regime that has been accepted by French and some other Muslim countries however, despite the theoretical and practical needs in Iran's civil law, it is not mentioned which is studied in this paper comparatively with French law.

Divorcement right on Islamic jurisprudence and legal systems of Egypt and Iran is essentially by husband. This is clear that men can abuse of Divorcement right so as we showed in this descriptive and normative article that legislators of nominated legal systems firstly try to balance this situation by contractual regimes like sub-delegation and Tafwiz. Sub-delegation is admitted on all three legal systems, but Tafwiz concept is unknown on Iranian law and just sunni jurisprudence, Egypt law, and minority of shia commentators have admitted that. The most important difference between sub-delegation and Tafiz is that wife under the Tafwiz regime can has absolute Divorcement right, although under sub-delegation regime she is just agent of her husband and she has a limited Divorcement right. Lastly, the court will divorce the wife in some exceptional situation like family leave by husband, desertion of nourishing duty by man, and Distress and constriction of wife.

The terms of contract plays an important role in defining, disclosing or limiting rights and obligations of the parties to the contract and the object of condition is effective in increasing and decreasing the value and price of transaction. In the event that condition not filfulled, the economic balance of the contract will be distrupted. In the case where the terms of contract are not filfulled and is not possible compelling to execute the condition, the prevailing point of view in imamiye jurisprudence which is also evident in civil low, considers that termination of contract is only way of compensation. Imamiye jurists have relied of this view for some reasons such as: the lack of balance between discriptions and terms with the contract price, the exceptional nature of the compensation (arsh), to be something qualification and spirituality of the object of term, and the monopoly causes of quarantees in islamic juricprudence. Despite the famous idea of the non-distribution contract price on the provisio by some jurists "based on reason such as capable to being owned of term in the custom, to be component of condition in the common intent of parties and evaluating the value of condition as eliminating hostility" comments on possibility of claiming the price of condition are mentioned in this case. In this survey by examining the basics and evidences of both views it seams in cases where the object of condition has an independent financial value and the person in whose favor the condition is hurts with rescinding the contract demanding price of condition is possible

Interpretation is the method of law. It has sub methods. Any of these sub methods have basis and use technique that coordinate with its basis. One of the sub methods at law is the systematic method of interpretation. The major base of this method is to interpret a part of text in correspondence with the other parts so that the text’ s coherence is preserved. One of these techniques that is used in this method is Inference to the best explanation. It includes three phases: to observe the facts and cases, to propose the theories and guesses to explain those cases and facts, to choose the best explanation through the rival theories. The best theory is that can explain more cases and be less complicated and have more consistency with the legal system. Inference to the best explanation is used in law very much though its name is less known. This inquiry tries to explain this way of argument logically and analyze its position at law and clarify its application by several instances.

Today, security is at the forefront of every legal system's concerns. One of the most important aspects of security that will make citizens feel comfortable is the provision of judicial security. Judicial security, is, the safeguards of the rights, property, rights, dignity and rights of all citizens. What are the proper mechanisms for achieving this and ensuring the judicial security of the citizens, especially the accused? What steps did the legal systems in this research take and what legal measures did they anticipate? Providing judicial security in the light of the principles of fair and equitable trial and the presence of independent and impartial judges in judicial authorities and observing their defense rights such as the principle of acquittal, the right to have a lawyer and their understanding. Observance of the principle of acquittal and adherence to it and the presence of a lawyer in the criminal process, in addition to being known as an assistant to the judge, is also instrumental in the administration of justice, a focus of the Iranian and French legal system and a major focus of international documents, including the Universal Declaration of Human Rights ( Located 1948). According to Iranian Criminal Procedure Code, no one should be summoned or summoned as a defendant without sufficient reason to attribute the charge. This regulation refers to the principle of absurdity and provides for judicial security in which citizens can be protected from any prosecution and, on the other hand, defend themselves if they are charged with a lawyer. Given the importance of the lawyer in the criminal process, the presence of a lawyer in all stages of the Iranian and French legal system is anticipated. Given the importance of the lawyer in the criminal process, the presence of a lawyer in all stages of the Iranian and French legal system is anticipated. In this paper, using the descriptiveanalytical research method, the role of "defense rights", in particular the right of the accused to have a lawyer in providing "judicial security", is studied.

Children Criminal Rights seeks tocreate the necessary limitation for the fight against juvenile delinquency in order to achieve the corrent methods to modify and treat the perpetrators under the age of 18. Accordingly, the reaction of the community to the crimes of childrenand adolescents should be proportional tothese goals, which are clearly notablein the formulation ofpunishments in Islamic Penal Code. According to this law, Hudud isexecutable for children andadolescents, but it does not meanneglect of the personality and ageof the offenders. The findings of this article with the purpose ofexamining the manner of issuance and enforcement of Hudud, indicatethat a review of the age ofcriminalresponsibility of children and adolescents based on existing jurisprudential sources is possible and recommended, but in the current legal situation, on the one hand, features of Hudud such as criminal policy of ignoring crime, the difficulty of proving, the need to pay attention to the rule of dar, the process of rule of the Jeb and the powers of governor in issuance and enforcement of Hudud and the light role of the plaintiff in the pursuit of these offenses; indicated that examples of the implementation of Hudud were unique and, on the other hand, the verdict on those matters in according to the strict letter of the law, depends on the proof of growth and understanding of the nature and dignity of the act by the offense committed. Therefore, there is no conflict between the punishment of persons under 18 years and the purposes of the new criminal law.

Joint property, is a property that two or more person jointly own each component. The partner material possessions, even to the extent of his portion, are subject to permission of others and without it create civil liability. But, all partner immaterial possessions are valid in relation to his portion and does not require the permission of others. There is, however, some debate over the contract of gift; because it is necessary for its formation, besides the agreement (as immaterial possession), the delivery (as material possession). There are two general views on this topic in jurisprudence and Iranian law. The first view distinguishes between “ divisible and indivisible” and also “ immovable and immovable” property and on the basis of this distinction, rules on the validity of gift on the joint property. Against this view, there is another belief that it holds that the gift on the joint property to be valid, without making any distinction between the joint properties. There are, of course, differences on the quality of joint property delivery. Some insist on Necessary permission of partners, some believe that the delivery is fulfilled by eviction the partner, and finally, some with outline the concept of the immaterial delivery, consider the possibility of donee dominance over the donated property sufficient. In Iranian law there is no specific provision in civil law, however, it seems, citing the sufficiency of immaterial domination for the realization of delivery and not needing the material delivery, validity of gift on the joint property to be acceptable.

The ineffectiveness of the mortgage regime in our country has led legal writers to introduce alternatives instead of mortgage so that the failure of the mortgage regime partially to be less. One of these methods that still is not prevalent in our country is using of the mortgage protection policy. Ii not listed in the current legislation and not express its provisions; therefore understanding this institution and its provisions can helps to this institution Is more common. Mortgage protection policy located between the property insurance and life insurance and There are features of both institutions in this insurance; but this institution has certain characteristics that distinct it from life insurance and close to property insurance. In this insurance the risk of non-payment of loans transferred to the insurer in exchange for the lender is determined as the beneficiary of insurance. In this institution, unlike other life, investment is reduced and the investment is the amount of remaining debt, payment of premium is compulsory and also the beneficiary is irrevocable. Given the effectiveness of this contract in terms of covering the risk of non-repayment of the loan as well as the suitability of this contract for the applicants, it is necessary to amend the rules on banking and loan contracts in order to further extend this contract.

Tax procedures that have extensive concepts and scope, fundamentals and sources of law, include, from tax legislation to determining, demanding collection and settlement of disputes, filing legal and criminal complaints, decision making condition, issuing and performing all administrative, law enforcement and jurisdictions authorities judgments including insourcing and outsourcing to realize distributive and social justice, procedural Justice, legal justice, criminal justice, tax administrative justice and even restorative justice alongside with tax justice. Every legal systems requires to comply with principles of tax trial such as principle of taxpayer information privacy, publicity of tax trial principle, principle of peremptory norms in tax trial, principle of taking appeal to tax trial judgments and the adversary principle in tax trial to realize fair tax trial. The present situation of tax trial in Iran has numerous difficulties either in the process or the trial on merits, including hearing in unofficial trial because of absence of the commissioner judge, issuing stereotype, irrational and delegitimized judgments, enforcement delay in writ of expert opinion and prolongation of trial which interrupted fair trial and favorable and acceptable situation. Therefore it is essential to transform the structure and functionality of these authorities and also codification of administrative procedure law.

In the virtual world, virtual assets are defined as specific software codes that act like physical objects, personal assets of the real world, or part of reality, and have similar qualities. Virtual assets must meet several conditions in order to benefit from legal protection. These assets must not only have the physical characteristics of real-world assets, but must also have other intangible features that are indistinguishable from real assets. The ambiguity about the concept of virtual assets is very similar to the ambiguity about the concept of real estate. Since the word asset is used in different ways in law and economics, such ambiguity is not unexpected. The common people see property as the property of objects and things. Lawyers define property as rights related to objects and issues. In addition to the different interpretations of the concept of asset, the problem is that the law of the real world emphasizes tangible assets (with a few exceptions), which is very evident in Roman-German legal systems. Due to the focus on the tangible nature of assets, lawyers seem to have completely neglected the discussion of virtual assets. However, the conditionality of assets is not the only reason for this neglect, there are exceptions, and the possibility of expanding the discussion of virtual assets is a case that has received much attention in recent years. In this article, we refer to the explanation of this category in an analytical descriptive manner.

According to first part of Article number 110 of the IRI’ s Constitution, The general policies of the system-which are considered among the duties and powers of the Supreme Leader-are strategies that are formulated and determined based on the goals and ideals mentioned in the Constitution of the Islamic Republic of Iran. The country's macro-frameworks and orientations are in line with achieving goals and aspirations. This issue acts as a political instrument in the hands of the leadership of the Islamic society and in order to lead the society in the direction of values. It also determines the framework of the action of three powers (legislative, Executive & Judiciary), including the adoption of laws and regulations. Among the important issues regarding the legal system governing the general policies, is the ratio of the existing laws and regulations and contrary to the new enacted policies, which play a great role in influencing and improving the functioning of this new legal establishment in the Iranian political and legal system. Accordingly, this paper seeks to answer the question: “ Is it possible for laws and regulations to be abrogated because of their contradiction to the general policies of the system? ” Using the "analytical" method and with the help of library collection of resources and information In this study, the author believes that “ due to the normative nature of the general policies of the system, the legal effects which depend on legal norms, will be applicable for the general policies of the political system, including the abrogation of the legal norms of higher (in the hierarchy of norms); However, legal mechanisms must be considered to solve the practical problems of this work or minimize it. This proposal is done in this regard.