ISLAMIC LAW RESEARCH JOURNAL
Year:2019 | Volume:19 | Issue:2 (48) |Papers Count:12

This study examines the misuse of right in the commercial companies of Iran law; that is, what are the strategies to deal with the misuse of right in Iranian law, and what is the position of the theory "the prohibition of misuse of right in Iran law", and whether the rule of "no-loss" (negation of the legitimacy of any loss), is capable of explaining how to deal with the misuse of right in the commercial companies of Iran. The results of the research indicated that, the theory of "misuse of right" is not such significant in Iran law as it is in the law of countries like France, however the rule of "no-loss", which is embodied in Iran law, can well be the same as the prohibition principle of the misuse of right in the commercial companies. It is considered two strategies, judicial strategies and non-judicial strategies, for preventing the misuse of right through the majority. The lawsuit on civil liability and criminal liability, the request for the dissolution of the company from the court, the demand for the removal of heads or CEO from the court, the request for the selection of the inspector from the court, the request for reduction of the company capital and the revocation of decisions, from the court are the most important judicial strategies. Participation of minority shareholders in the choice voting, the request for the formation of general meetings of the board, restrictions on the public assembly, restrictions on the heads and CEO of the company, the prohibition of transactions such as company transactions and restrictions on the inspector or inspectors of the company are the most important non-judicial strategies for preventing the misuse of right through the majority in commercial companies of Iran. Descriptive analytical method has been used in this research.

when there is a doubt between license and necessity in a contract, necessity is regarded as the basis; that is, no party is able to nullify contract without satisfaction of the other party. Through this principle, conditional sentence of of necessity is active for all contracts, unless some specific points in which for reasonable cause, conditional sentence of license is proved. Jurisprudents ans Islamic lawyers rely upon some reasons such as Quranic verses, traditions, method of thinkers and practical assiciation with someone to prove this principle. Accordingly, in act 219 of Civil Law for all contracts, and in act 457 for bidding contracts, necessity is sentenced; however, due to doubt in subject and hypocricy, its dimensioms are not clear; however, it will be clear through juridical reasons. According to this verse that says, “ accomplish your contracts” and the method of thinkers, sentence to necessity in hypocricy is proved. But sentence to necessity in doubt in subject is capable through practical principle of associating someone. As a result, based on the justification of each reason, the dimension of necessity in both doubts becomes evident.

Generally, regulating institutions' civil responsibility theory is a completely new idea and until the first half of 19th century, different countries' regulations had inhibited government officials from compensating those damages cause by government to individuals. They considered this lack of accountability as the rational result of government's governing principle. In fact, their belief was that absolute governing principle contradicts with compensating damages by him; however, with evolution of legal thoughts, the lawyers considered lack of civil accountability to be inconsistent with justice and fairness. Nowadays, nearly all countries have accepted public and regular bodies' civil responsibility. In our country, we may see that hastily-written and unprofessional laws will lead to some social and economic anomalies. Even, sometimes it may lead in attenuation of social crises such as pessimism and dissatisfaction toward the maxim of system and government's rationality, weakening and reduction of the spirit for gaining reasonable profits and a feeling of hopelessness among some group of people. This study is an attempt to investigate government's civil responsibility with regard to legislation from a jurisprudence perspective and based on the accepted standards by Ahl-Al-Bayt's jurisprudence, considering issues such as rule, reason, and its documents and the possible conflicts with other rules and the possibility of matching rules with other topics similar to Fatwa. Accordingly, we should respond that whether the legislative body can be considered as unaccountable because of the guardianship that they possess. Or whether can we consider him as unaccountable considering the rules of goodness. Can we consider the legislative authority to be accountable for the damages based on the rules existing with regard to accountability rules? Is it possible to adapt this rule upon jurisconsult's fatwas and the regulations enacted in parliament within Islamic governance system as well as The Guardian Council and leader's government decrees.

One of the subdivisions of the contracts among the works of the authors is the division of contracts into the contract property transmitter and the contract imposing obligations. This division is not in French civil law and in Iran and it has always been believed that contracts in the French are contracts imposing obligations and there is no division of contracts into the contract property transmitter and the contract imposing obligations. As it may be based on the viewpoint of some individuals that ownership of the obligqtion and the property transmitter nature of contract of sale generql may be based on the belief that the division in Iran is not necessary. Nevertheless, there are indications of the existence of the contract property transmitter in the doctrine and even in French law. Also, in Iran and France, the objects are divided into a definite and general, and this division is not impartial with the contract property transmitter and the contract imposing obligations. Although it can not be said that the division of the objects into a definite and general is the same as the division of contracts into a contract property transmitter and the contract imposing obligations but this could indicate the difference between the effects of the contract property transmitter and the contract non property transmitter. Although this is not a comprehensive division, this division does not prevent other divisions. It can be argued that the issue of the place of the dispute raised the question as to whether in Iran's law the division of the subject of contracts into the definite and general is based on what ruling and what works there? Is it possible in Iran's law to divide this division as an indication of the division of contracts into contract property transmitter and the contract imposing obligations, and what effect does it have on the division of contracts into a into contract property transmitter and the contract imposing obligations? It seems that in Iranian and French law, the division of the subject of contracts is not without effect, and it seems that both Iranian and French law can not be denied the division of contracts into into contract property transmitter and the contract imposing obligations. In the French civil law and in Iran, the effects of this division, regardless of acceptance or non-acceptance, have not been collected and perhaps this article will be the beginning of a future doctrine study that will be examined in a comparative way.

Based on majority view in the management of public corporations, minority rights are less relevant and, in some cases, managers abuse their position. In this regard, solutions need to be provided to support minority shareholders. The American model of corporate governance system to protect the rights of minority shareholders includes "fair disclosure of financial information in both seasonal and annual reports, and the need for a disclosure committee to review and monitor reporting to supervisory bodies and the publication of dividends", "the need to get informed of the issues before the meeting and the possibility to submit a proposal to the general assembly by each of the shareholders in accordance with a number of precise procedures", "the necessity of forming a committee of candidates in each company and the possibility of filing a lawsuit" Designed by each of the shareholders against the offenders in the name of the company in the form of a derivative dispute Which is categorized into four categories of "information rights", "management rights", "control rights" and "procedural rights". In Iran's law, although there is no special law on the "Corporate Governance", but in various laws related to public corporations, such as the "Bill of Amendments to the Part of the Trade Law Act of 1347" And regulations and instructions related to the Corporate Governance, such as "Annual Reporting of Managers to the General Assembly", "Acquainting Stockholders with the Issues of the Meeting before the Holding", and "The possibility of filing a minimum installment of one fifth of shareholders for managers under a number of conditions". The present study is carried out with a comparative method and the collected data have been analyzed according to the legal provisions of the two legal systems studied. Identifying numerous deficiencies in mandatory legal provisions regarding minority rights in Iranian law, especially in the areas of "financial disclosure and transparency", "voting system" and "derivative action", including the findings and results of the present study. In each section, solutions and suggestions are provided.

Increasing the volatility and environmental threats of the human being has made it necessary to persevere in their lives. Today, there are many ways to deal with environmental crises and to improve the situation. In the meantime, the approach of developing environmental culture by utilizing the capacity of environmental NGOs is a low-cost, inclusive and highly societal approach that can be considered as an appropriate basis for protecting the country's environment through state-sponsored support. In this paper, using the descriptive-analytical method, this question is answered: "What are the supporting and supporting tasks for the government to promote and promote the participation of the organizations of the environmental NGO? " By examining the question, the result is that in the system Green law, governments, given the capacity of NGOs, give these organizations the opportunity to participate in regulation, participation in the lawsuit and monitoring and enforcement of laws and regulations. In the legal system of Iran for environmental NGOs, the role of the judiciary (the right to charge a crime) and participation in the preparation and implementation of environmental protection programs are foreseen. Nevertheless, the shortcomings and exceptions, as well as the possibility to remove and modify the list of active environments in the field of environment by government officials, can undermine government commitments and, more importantly, achieve the goal of a healthy and green environment. In this article, the authors analyze the foundations and requirements for analyzing the challenges and proposing a proposal.

Prevention of losses is one of the important legal principles that lawyers have spoken about in recent decades. The aforementioned principle in the field of environmental losses means that the lack of scientific certainty should not be used as a reason to postpone the actions required to prevent environmental degradation. The main question posed in this article is that the legal system uses the tool of civil liability or behavioral regulation in applying the principle of preventive measures? In other words, does a legal system apply to the precaution principle use the behavioral regulation, or does it act in a compensatory way through a fundamental evolution in the subject matter of civil liability and the replacement of a preventive approach? To answer this question, we first have to examine the criteria of the legal system in choosing either of the two civil liability tool and the behavior regulation, and then opine on the appropriate legal system in applying the principle of preventive measures.

Divorce for consideration or divorce for ransom is the same as divorce granted at the woman, s request against compensation and consensual divorce including the divorces that are issued against the payment of property from the woman, s side with this difference that in the divorce granted at the woman, s request against compensation the existence of dislike from the woman side and in the consensual divorce the necessity of mutual dislike of both couples are stipulated. But, in divorce for consideration, the woman under the special conditions may without the existence of dislike against the payment of ransom or property from her husband request for divorce and the release from the tie of marital. On determination of nature of this divorce there are numerous differences between the Islamic jurists and the lawyers as the same of divorce granted at the woman, s request against compensation and consensual divorce. From one side, the Civil Code and Islamic law enumerates the divorce in the class of unilateral obligations, but, from the other side, in this kind of divorce the will of woman in transfer of property will raise the taint of agreement. In this research, after the definition of position of Civil Code in connection with this divorce, we will review the Islamic jurisprudential and legal nature of this divorce and to answer this question that the nature of this divorce such as the divorce granted at the woman, s request against compensation and consensual divorce is irrevocable or is reckoned the same of other revocable kinds of divorce.

In order to achieve the goals of the judiciary from the point of view of Islam, which is the establishment of justice and justice, it is necessary to follow the principles of justice and, in different stages, to respect the rights of the defendants, especially the accused and the accused. The fair trial requires observing the defendant's defense rights in the proceedings. Defensive rights are the legal collection that the accused has in the process of trial to establish a fair trial, and is required by the criminal justice system. These rights are largely synonymous with the concept of a fair trial, and in fact a fair trial, the accusation of defending the rights of defense. These rights have been regarded as sacred, and in the quadruple sources of inference of judgments (book, tradition, consensus, reason) expressly or implicitly expresses some of these rights, such as the principle of innocence, independence and impartiality, respect for the dignity and dignity of individuals, Publicity, revision has been addressed. The purpose of this article is to study the position of the principles of fair trial in Islamic justice system and to study these principles in the Islamic law and the opinions and opinions of the jurists.

The fulfillment of criminal responsibility depends on the proof of the accused's capacity, including wisdom, maturity, discretion and knowledge, and the absence of the above mentioned factors leads to the impossibility of attributing the offense to the accused and as a result of not fulfilling his criminal liability. By claiming the existence of the above obstacles, there has been doubted about the realization of responsibility. The implementation of the acquittal principle and necessity in equality between accused and the public prosecutor's office in the fair trial requires that the prosecutor proves the existence of perception, discretion and knowledge. According to the Islamic Penal Code and the Criminal Procedure Code, the burden of proof of the lack of perceptions including minor and psychological distress caused by insanity and drunkenness (except in the intentional murder), with the consent of the expert has been held by the prosecutor, but despite of the lack of clarifying the mentioned rules, it seems that the burden of proof in respect of lacking discretion and knowledge, i. e. reluctance, compulsion, necessity and mistaken, is left to the accused.

Couse of action is one of the most important subjects of civil procedure although have not been given it sufficient attention despite its importance. Cause of action is a cause that breach the legal policy between persons and beacause of it they entitled to bring action. Couse of action or in the form of a violation of the right, or in the form of ignoring and not exercising the rights, regardless of the source of the law of law or the contract. But is concept of cause of action unique in all context of civil procedure? Writeres have three theory about notion of it. Some say cause of action is merely matters of fact. Some say that it is matter of law. In our opinion we most study concept of cause of action at two separate domain. In domain of duty of parties and judge to bring and proving matter of facts and in domain of res judicata. My aim is to present and describe this opinion.

Political systems, based on their existential philosophy and through governmental structures, seek to achieve the objectives that form their basis and substance. Since each government has its own goals and the systems, and structures also fulfill the objectives, political systems should look for arrangements to achieve these ultimate goals. This article seeks to investigate the relationship between structure and substance in Islamic governance. The author examines the interactive effects of these two which involve studying the effect of governmental structures on the system basis and the objectives as well as the impact of substance and objectives on political and governmental structures. Firstly, the types of structures in Islamic systems are analyzed using the descriptive-analytic research method and then, the probable relationship of each one, as well as the impacts and susceptibility of them, are examined. In the governments that originated from the divine will, especially Islam, it is conceivable that there are two types of structure: Institutive and Approved. The Approved Structure itself can be divided into two types: Imported structure, assuming no structural effect and Amended structure assuming the minimal and procedural effects of the structure. Conversely, the Institutive Structure emphasizes on maximum and substantive impact of the structure.