ISLAMIC LAW RESEARCH JOURNAL
Year:2018 | Volume:19 | Issue:1 (47) |Papers Count:12

Most of the time, a person asks another to give him one or more check paper to perform some act and the latter responses him affirmatively. For example, he might have purchased some goods in credit or made used of service of an employee or obtained an insurance policy in installments and need some check papers to pay the price or insurance premium. Checks issued in these circumstances are usually postdated and the receiver of the check paper intends to have opportunity for providing its money.This act is termed in common usage lending check paper but the nomination cannot be trusted. Jurisprudential and legal nature of such check is debatable and it could be adapted to various legal institutions such as lending, mortgage, guarantee, assignment of debt and obligation to pay by third party.Relations between the parties to such a check are governed by different rules according to its nature and forms. The article endeavors to study the question from jurisprudential and legal viewpoints.

The relation between criminal law and morality originated from variety of Islamic juristic rules especially the well-known principle rule in Islamic criminal law saying: “discretionary punishment is prescribed for any forbidden act or violation”.Although there is a consensus over the originality of this rule, there are different ideas about the determination the scope of the ruleDespite the all different ideas, it seems that the” discretionary punishment is prescribed for any forbidden act or violation” is a general rule in theoretical view. This thesis distinguishes between the theoretical perspective and practical one. In the case of theory, it holds a maximum support of morality by criminal law; in contrast practical approach of Islamic criminal law holds a type of support according to requirements and conditions drawn by the ruler or the leader.

Although the specific meaning today with the threat and overcome reluctance to happen, In legal relations, but there is less pressure to conclude a contract that affects a person's free will, to other modes of glaring. Accordingly, although sometimes reluctantly in the form of emergency because of the urgency of MyPyvndd personal aspects, but this pressure and external threats emerge in the context of a screw. This occurred in two cases MyPyvndd which is divided into different types; 1. emergency contract due to reluctance on the transaction 2. emergency contract due to reluctance on the hesitant action. On the effects of the transaction in distress in the first case, the opinions of jurists and lawyers is different jurists and lawyers know the correct emergency deal it consequently warrant the accuracy sanctions, nullity and lack of influence over the limitations stated that the It seems that due to the realization of the spiritual element of reluctance, lack of influence in this case the transaction is consistent with legal logic. To effect a transaction in the second case, almost all of it blunt and know the difference. Accordingly, emergency transactions that actually occurs in the context of an external pressure, blunt and requires further confirmation in distress is the correct emergency deal breath as though in throughput.

The existence of a supervisory entity with an impartial mechanism in the election plays a decisive role in realization of a desirable governance. Today, the complexity of the election makes the "supervision" hard and responsibility of "fundamental proceeding" heavier. Supervision over election is a two-bladed sword, which can guarantee and protect the rights on one hand, and threatens and restricts it on the other hand. Therefore, this research studies the foundation and examples of this kind of supervision in Iran and France using descriptive-analytical method, and seeks to answer the question of what mechanism the fundamental proceeding benefits from to safeguard the people's choice in France and Iran in order to protect the people’s rights in the best way? In response, it became clear that the Guardian Council has a broader role than the French Constitutional Council in some powers. However, both of them have the effectiveness, efficiency, and coherence due to the dispersion, ambiguity, and inconsistency of behaviour and lack of transparency exists in most of jurisdiction and conduct of their agents. In addition, this has led to a high legitimacy today, despite the fact that the activities of these entities are somewhat distant from theoretical foundations and main protection thoughts.

Two important components in recognition of status of political system and state in Islamic societies include: The concept of modernity and its legal-political structure, that means on the one hand of the modern state and on the other side of legal-political structures caused by Islamic thought. The detection and identification of patterns and how interaction of these two components in the construction of political system and state in the contemporary Islamic countries are the axial issue of the paper. Such that by assuming principle of integrity of social and political of Islam and effectiveness of the requirements of the modern state, and with by historical and theoretical analysis, patterns within them framework, Islamic societies was reacted to these two factors, in the form of the approachs of Fundamentalist (West-oriented-Salafi) and Modified-oriented are identifiable. Full understanding of these patterns, capacity of preparations for achieve to the Islamic desired state proportionate to living conditions in the modern transition of periods. This paper is the attempt in order to detection, proof and analysis of this hypothesis.

The protection of good-faith acquirer is crucial point in every legal system so that the extension of protection could have an important consequence of transaction stability and its speed. Scrutinizing Iran’s codes demonstrates that there is no coherent approach toward the protection of acquirer. In other hand, comparative study of the issue shows that we could not search for general rule to protecting good-faith acquirer, but the protection would different in each branch of law, depending on their rules and goals. Therefore, protection of good-faith person in land’s law registration considering the principle of this domain is different from civil law. Moreover, the sovereign principles of commercial and intellectual property law require a different protection of good-faith acquirer. This truth requires us to be prudent in referring to civil law as mother law on this issue and in order to find the proper rule for protecting good-faith acquirer, the purpose and goals of each branch of private law must be considered.

Judicial Modification through fundamental change of circumstances is one of the issues that has attracted the attention of lawyers from many countries. The need for the legislator to accept this establishment, especially in countries which have fragile and unstable economy, is extremely tangible. Our country can not be excluded from this rule in the light of cruel sanctions and unbridled inflation, as some of the changes and, consequently, the difficulty of implementation, have been such as to affect short-term contracts and cause immense and unconventional losses for committed person. In such a situation, in case of the absence of modification by the legislator and the parties, the judicial system should be held accountable. But the obscure point is the question that is being asked whether the judge can interfere with the purpose of enforcing justice in the contracts concluded between the parties. In addition, if the answer is positive, on which legal and Jurisprudential basis this intervention can be defended? The findings and results of this research indicate that in the internal legal system the legislator has removed the judicial modification from the judge, but the existing legal vacuum can not be regarded as a permit for non-judicial review of the judiciary because the legislator has allowed the judge to act based of Judicial Ijtihad. Therefore it seems that in the internal legal system, the judge can return the commutative justice to the contract, on the basis of rules such as No-damage, Denial of hardship, and also theories of Implied Condition and Accidental Loss. Additionally in the Egyptian legal system, the investigations have confirmed that the Egyptian legislator has accepted the judiciary modification based on the theory of al-Hawadath-al-Tara'ah and 'Amalqal', in the form of articles 147 and 129 of the civil code of that country, while the strong enforcement guarantee has been given to it.

prohibition of quest and in addition, there are various narration about the prohibition of quest in the privacy of others quoted from saints which indicates importance of the issue for them.Prohibition of quest in absolute form is not accepted by saints and scope and limit of this sanction incudes only secrets, defects and personal and family slips which are not related to the public interests; but issues which depend on the public goodwill and preserving Muslim systems, are out of prohibition of quest.Despite abundant discussion and narrations about the prohibition and exceptions of quest an important issue of prohibition of quest as a juridical rule is neglected in the juridical literature and sources. While discussion about the extension of conditions and criteria of juridical rule about the prohibition of quest is possible and importance, scope and effects of prohibition of quest provides ground for prohibition of quest.Recognizing prohibition of quest as a juridical rule can have important effects in the social and legal dimensions.Therefore, in this paper, we want to clarify two important issues: one is studying prohibition of quest as a juridical rule and the other is studying effects and endeavor of legislator to these Islamic rules in criminal procedure system Therefore, in the present paper, with the analytical and descriptive method, the ability to convert the transposition of the transposition as to jurisprudence rules. On the other hand, its effects and consequences in Iran's criminal justice system are considered.

Although the Iranian Civil Code has allocated a considerable part to the “property” and its related issues, the nature, concept, and criterion for knowing it has not been expressed yet. A parallel condition exists in French Civil Code which has been the inspiration of the Iranian Civil Code writers. Western Law has undergone significant changes, specifically in the recent centuries which is worthy of being studied. There is much controversy in Islamic Law (Fiqh) in this area. This article initially tries to study the concept and elements of the “property” and explain the criterion for knowing it in both Islamic and Western Law. And we will prove that the property is a concept of created by law and a “haghighat e orfie, not the law, and the diagnosis criterion is also personal.

The legal issue of last will and testament in favor of the fetus (unborn child), is one of the legal subjects which is fully discussed in Islamic Jurisprudence books. But in the Iranian Civil Code there are just two articles in this relation i.e. article 1851 and 1852. There is some controversies in relation to the conditions necessary for validity of this kind of last will and testament. Islamic jurisprudence scholars have generally stated three conditions for such last will and testament for the fetus to be valid. First of all, to benefit from civil rights in general and last will and testament in particular, the fetus must be in existence at the time at which the last will and testament is being made. Secondly the fetus must be born alive even though he or she dies immediately after birth. Finally, they maintain that the offer of the last will and testament needs to be accepted, otherwise it is not effective. This article is aiming to examine the necessity of these conditions.The method used in this Article is descriptive-analytical. Data have been collected by taking notes from relevant sources and have been analyzed with regard to the views of Islamic Jurisprudence scholars and civil provisions. The findings of the contribution are: 1. There is no doubt about the validity of the will and testament in favor of the fetus. 2. The fetus must be in existence at the time at which the last will and testament is being made. 3. It is necessary for the validity of such last will that the fetus come into birth alive. 4. There is no need for last will and testament for the fetus to be accepted.

One of the non-judicial administrative mandate that is used in some legal systems is self-help selling institution , the entity is anticipated for the purpose of repayment of losses on behalf of one party to the contract which is affected by the other party's action, in other words, when in a contracting relationship , one party commits an offense in relation to obligations contracted by the other party and the person has suffered a loss owns the offender’s property, this institution will allow the person, in certain cases, lawfully to sell the property of the offending party in order to offset its losses. This institution has been recognized both in the legal system of Iran and in the principles of the law of European treaties, but it is not applied as the general principle and only in cases where it was anticipated by the law governing the contract. In the Islamic Jurisprudence, the closest institution to the self-help selling is the rule of atonement, it seems that this rule can be used as the basis for self-help selling entity in Imamie Jurisprudence.

The effect of will on legal acts has been accepted as a general principle; individuals create obligations for themselves and others by their will, and thereby receive a binding force in relation to their will within the framework of contracts and unilateral acts. The will that consists of intention and consent plays an essential role in the creation of obligations; in other words, each element of the will, i.e. intention and consent, affects the fate of legal action in terms of a decree of invalidity of a legal action. The nature of this effect and the guarantee of the lack of any of the essential conditions for the realization of will in the field of contracts have been considered by the jurists and lawyers and its order in the field of contracting is stipulated in civil law. However, there are many ambiguities in the unilateral acts regarding the role of will and determining its basic conditions. These ambiguities are the result of silence in many provisions of civil law relating to unilateral acts and few studies by jurists and jurists in explaining these rules. Civil law, while highlighting important unilateral acts such as abstraction, termination, admission, taking into account, and divorce, mentions some of its specific rules.. But important issues such as the role and effect of intention and consent in the development of the unilateral acts, as well as the theory of invalidity and interferential unilateral act which is related to the general rules of unilateral acts such as contracts, are not clear from the viewpoint of this law and there is a place of discussion and disagreement in jurisprudence. In this research, the authors are trying to use a descriptive-analytical method by examining the intention of perform in the unilateral acts and thus, take a step to explain the views of the supporters and opponents of the separation of intention and consent, as well as the study of the channel of the theory of invalidity in the unilateral acts.