LEGAL STUDIES (JOURNAL OF SOCIAL SCIENCES AND HUMANITIES OF SHIRAZ UNIVERSITY)
Year:2011 | Volume:3 | Issue:1 (4)|Papers Count:7

Concept of State is one of the multi-dimensional concepts of the Science of Law. One of its dimensions is to consider a State as a manifestation of sovereign political body or as the executive power. In the Iranian judicial system, the Court of Administrative Justice (CAJ) is the judicial body which deals with complaints lodged by the people against governmental officers and units. Since claims are made against the State, it is necessary to define the concept of State from the viewpoint of the CAJ. This definition has impact on the determination of the State’s jurisdiction and its legal status and even on individuals lodging complaints against the State. This paper basically examines the following question: Is “State” in the CAJ’s judicial precedent considered as the whole sovereign body or as the executive power? In addition, this paper investigates what is the meaning of the State in such precedent. It also responds to the following questions: Does any organization, unit or company which can be described as governmental can be considered as part of the State or should such bodies or their capitals belong to the State to be considered as governmental? How does the CAJ deal with complaints in accordance with its definition of the concept of State? How does the CAJ refrain from dealing with some claims by certain bodies, on the ground that it considers them as governmental? How does such interpretation affect the jurisdiction of the CAJ and general courts and the rights of people and governmental organizations and units? In this paper, the CAJ’s judgments are divided into two categories, depending on unidimensional and dual dimensional concepts of State, and then these judgments are analysed.

Increasing Relations between countries cause to Increasing international trade between them. Since the transaction of business generally require special legal rules, naturally, as some of the existing rules and the substantive changes that are good and in some cases, according to nature of transactions, the rules in the major legal systems Entering into international legal system and sometimes aforementioned rules to accommodate the needs of trade changes applying relevant documents have been agreed countries. Including the rules, base "option because there anticipated breach of contract" in Article 72 that the International Convention on selling the goods has been mentioned. This article aim is to predict the relationship of this rule with the rules governing the legal system in Iran and also asked whether there could be an obstacle Article 72 Convention for the accession of Iran to be. Purpose of the rules governing the legal system in Iran are trying to explain this, although the rule " option because there anticipated breach of contract” in Iran and resource rights jurisprudence and legislation has no legislative experience? But at the same time accepting it’s None of the rules governing the legal regime of Iran, but can be used alongside the other rules.

In the Iranian law, certainly, the trustee has not any responsibility in respect of any defect and depreciation which supervenes on the property which is the subject of the contract. However, if he committes a fault, it is not effective on the validity of the contract. So too, his responsibility in regard to the property is not absolute strict or limited strict, but it is based on the conditions and rules of contractual responsibility. In addition, If he committes Fault through taking benefit of the property, his responsibility is based on the principles of taking advantage and not the principles of the usurpation and his fault has no effect on the contractual obligations of the owner nor the rights of trustee.

One of the approaches of legislative Assembly after Islamic revolution is modification of some articles of Civil Code for developing of legal protection of women's rights. Article 1110 of Civil Code with article 1107 &1133 of Civil Code in 9th of Aban 1381 was modified as "The Law of Modifications of some Articles of Civil Code". Former article 1110 had said that "wife in death prescribed period hasn't alimony ". In last modification, the article says that "in death prescribed period, wife's living expenses supplies on demand by relative properties that should pay alimony ". This essay investigates alimony in death prescribed period in jurisprudence and explains commentators’ interpretation about verse 240 Baqara which advises to pay alimony in death's prescribed period and finally, according to proceeding negotiations of parliament and Guardian council, suggests a substitution text for article 1110.

Considering that the holy Quran in verse 4 Sura Nisa, dower is defined as Nehle. In the other hand, in section B clause 6 single article of divorce, a new right called Nehle was provided for divorced women before whom there is no record in the Law and fiqh. Nehle means Donation and gift with full consent. Now due to Donation merit and characteristics, the question is whether dower and nehle could be considered the same as Donation. There some differences in merit of dower between Islamic Law and Jurisprudence and between five different views, just one view says that dower is the gift from husband and its main document is verse 4 sura Nisa. In accordance with this view it seems that the dower or at least certain kind of dower could contain conditions and characteristics of donation but in regard to Nehle provided in the single article, considering that the Law-maker addressed the court, and the most important donation characteristic that is the assent of the husband, was not mentioned, then It seems that it is not the clear example for donation. But since the legislator named these financial rights of woman as nehle it must be accepted that there is a kind of forced Donation in the Iranian law.

The civil code as the major law has much importance in the Romano-Germanic legal systems including the Iranian and French legal systems. Understanding theorical foundations of this code is, no doubt, effective in clarification of the contents and the manner of interpretation of its legal rules and its evolutions and thus clarifies its place in the legal system. The rationality is well inspired by the reason in the contents and benefits from the code to protect the contents. Therefore, the rationality of the civil code takes two dimentions of substantive and procedural aspects. However, this theory is not indisputable and has adversaries in French legal system; especially due to the role of the catholic tradition and the public custom in the development of the contents of most of its rules, though, the catholic tradition unlike the Shiite fiqh, is not divine based and it is built by the Church. In the Iranian Law, certain authors base the theorical foundations of the Iranian civil code on the French civil code putting emphasis on formal rationality of the civil code regarding it as the beginning of legal modernity in Iran. However, considering the religious basis of the Iranian legal system and the role of the divine tradition in the development of the legal rules, it would not be easy to accept this theory.

The legal systems are not the same as regard to the duty of pre-contractual disclosure. The general principle in civil law is that the negotiating party must proffer the information in his possession which is material as to the other party’s decision. But in common law does not accept any general duty to disclosure in pre-contractual negotiations. According to this system, during negotiations a party may play his cards close to his chest and hold back information even if he is aware that knowledge of the facts would deter the other side from entering into the contract. The pre-contractual duty to disclosure is favorable in Islamic law but not generally known as a duty In Iranian legal system except in some particular cases.