AZAD LEGAL RESEARCHES
Year:2009 | Volume:- | Issue:4|Papers Count:7

The functional role of religious principles respondent to Legal & Jural issues (specially the new complicated issues) is no secret to anyone. as these principles shall be considered as a well-founded support for lawyers. judges and jurists in presentation of judicial decrees. judgments and opinions, because solving many Jural/legal issues without relying on afore-mentioned rules shall be difficult and partially inaccessible. Thus in the Islamic religion and a wide range of today world's common regulations (including our country) the existence and effects of these Jural Principles, such as principle of non-damage "using your own property in such a manner is not to cause loss or hardship to another" and correctness are evident, whether in exact form or content. These principles including "prevent huded in case of doubt" and "Doctrine of Innocence" are discussed under chapter of doubts, thus in case that a SHARIA Judge hesitates to prove the crime while investigating the defendant's case or realizes that the accused person/s was/were doubtful of the existence of legal judgment or religious edict and dubious recognition of the subject of judgment while committing the crime, due to religious principles and equity rules, the judge can not attribute any crime to the accused person or enforce a punishment on him, and since Islamic Religion is the law of affection and indulgence. and in view of Islamic justice regulations and Judicial system, consequently the common regulations shall lead the judge to interpret law in the favor of the accused person and his innocence. The Prophet states that "if a judge makes a mistake in forgiving a defendant, this judgment is better than to mistake in and exerting punishment. Also there are strict orders about the interpretation of law in favor of accused person, and abiding by justice and equity and exercising prudence where people's life and reputation is concerned.

Despite having nearly a hundred years of legislation in line with the local councils of decentralization Affairs to create and strengthen the country and local units decentralized still in severe weakness and these issues are fundamental problems. The root cause of problems and barriers in addition to the social. political, historical and economic position can be ambiguous and qualified to order from the view points its constitution and laws also considered normal.

In 1373. the General Assembly of CAJ in the vote of process unity of Number 146 considered the firms of Foundation of Janbazan and Mostazafan as governmental firms and did not recognize its jurisdiction based on the Constitution the Article 173 and the Act of CAJ (approved 1360) the Article II (the Act of CAJ that approved in 1385 the Article 13) for investigating their complains. This process has considered by the Public Council and the branches of CAJ. This vote is possible to survey in two aspects: competency of C AJ in investigating the complaints of governmental firms and reasoning of CAJ that the firms of Foundation of Janbazan and Mostazafan are governmental. This article examines briefly the first subject and the second subject in detail. After examining the legal essence of firms of Foundation of Janbazan and Mostazafan as a public non-governmental institution and with considering different regulations, it is identified that firms of Foundation of Janbazan and Mostazafan are neither governmental firm nor public non-governmental institution. Consequently, CAJ has competency to investigate the complaints of these firms against governmental companies like other individuals of private law. As a result. the vote of CAJ broke the rights of these firms in referring to and complaining in CAJ, that it is against the applicable law, and legal principles and measurements.

South Asian Association for Regional Cooperation (SAARC) is the largest regional organization in the world by population covering approximately 1.500 billion people. SAARC is an economic organization. Its objective is to develop the cooperation in economic and social and scientific areas within the member states. Iran was accepted as an observer state in 2007.

From legal point of view the undue influence in English law is comparable to consent defects and into three categories: Actual undue influence presumed undue influence type I (special relation like the one between parent and child) presumed undue influence type2 (relation based on confidential like that existing between husband and wife). Manifestly disadvantageous is an element in the formation of the last two type.in English law the undue influence makes a contract voidable. Regarding the fact that the regulation on duress in the Iranian law are traditional and do not meet the needs of today s life and that the regulation on necessity too does not make the contract invalid we suggest that reform be made in the duress and necessity regulation taking into consideration the experiences of other countries like England. But as these reforms are not made yet an effort has been made in this article to expand the domain if duress and restrict that of necessity by what is called here (the duress necessity transactions).though the undue influence and the duress necessity transaction are substantially different there are similarities between the two.

Alimony of Permanent Wife is regarded as a material and financial privilege that is established in favor of the wife for meeting her living requirements once the permanent marriage contract is concluded and it is a commitment up to the husband that is on binding with the deference of the wife. The criterion of determining rate of alimony is according to the living requirements of the wife concurrent convention of the society and no special rate is assigned in the related law. However, according to the general order in the law ,it is regarded as an obligation for the husband and is binding when the husband is entitled with the full deference of the wife and if the wife refuses to fulfill her duties as a wife without any legal excuses and barriers, this commitment will be automatically removed from the husband. In the case the husband avoids fulfilling this legal commitment, the wife shall be supported through exerting criminal laws and if the husband fails to do so and it is not possible to force him to do so, the wife shall have the right to go to the court for obliging the husband to divorce and she may set the related action. The court shall issue the divorce judgment in favor of the wife under the title of "Distress & Constriction" and such a divorce is "Irrevocable Divorce" according to most lawyers.

Impartiality is not only common proceedings rights for litigants but also it is common charge in relation to the legislator in the approval of procedure law and to prepare of impartial structure and the judge and the involved people in the case. The accused is fixed party in the proceedings and its counter party is or personal plaintiff (if to be determined by the crime) or society ( if to be injured the society order and to be society tendency as the test in criminalization) or sovereign ( if it determined by the crime and may to discriminate its interest and interest society) or all of them. They are equipmented by the several arms in order to sovereignty on the accused. In the process of legalization and determining of the structure usually infringement of impartiality is on be half of the sovereignty or the society. The infringement of impartiality is result in the consideration or the interest in relation to case subject or litigant.