پژوهشنامه حقوق اسلامی
پیاپی 43 (بهار و تابستان 1395)

Islamic Revolution of Iran as a prelude to the arrival of religion in the management realm of contemporary societies needs an immediate theorization in how to employ various religion and human resources in social sciences. Collecting and demystifying various sources of knowledge, Mulla Sadra's Transcendent Wisdom paved the way for the use of reason and convention, but scrutinizes and various claims of Sadrian philosophers led to differences in the employment of reason and convention. The results of this study showed that Allameh Tabatabaei's point of view in accepting legal propositions as conventional and Allameh Mesbah Yazdi's opinion about them as real ones have significant influences on using various legal resources. In this regard, Tabatabae's approvals accredited the conventions, but Mesbah Yazdi's idea led to fade them and increased intellectual and constant understandings in law. Considering the above, with approving feasibility and precision of using both reason and convention, Islamic law school took some distances from naturalist schools and realism and approached to a jurisprudential one.

Although definitions is one of the main topics discussed in logic and talked a lot about it, but there is no comprehensive discussion in Etebari Sciences like law. It is because the definition of the concept and topics in the world of law, jurisprudence and the ethics is based on prior understanding of Etebar. In the world of law we deal with value concepts that on their definition we use descriptive statements (although in fact there is no describing here) and on the other hand deal with concepts or command that is used in statements such as must, haven’t to and can. Our presuppose is that we can achieve the definition of legal concepts. In this article we will look at some general theories the base of that we can be achieved the definition model of the legal concept. We want to present the definition model in law so that legal concepts can be expressed in this form.

Error is mistake in recognition and belief despite the fact while there is strong belief or suspicion and is synonym with implicate ignorance. In administrative authority error, person, in action, imagine himself qualified and with the belief that he was acting within the authority granted to him, will act. Error has been achieved in the subject or in the implementation the case with rule in whole or in existence of rule, understanding the meaning and interpretation of the sentence that are named error of fact, adaptation and law. In error of law, based on the general rule, Ignorance to law does not warrant liability but because this rule is against the fairness, some lawyers, are distinguished between ignorance with negligence and fault. But the lack of knowledge of the laws and regulations regarding administrative authority of its domain, are assumed his fault and he will be responsible for his error and lack of responsibility required proving the negligence by the administrative authority. But in fact and, adaptation error, there is certitude or valid suspicion that they are valid in principle science so the person dose not have any responsibility. Review on administrative authority error can be achieved of the hierarchical supervision and monitoring by the Court of Administrative Justice and are enforced warranty.

Thought of lack of influence the sale of mortgaged property, is famous thought. But a narrow study in jurisprudence shows that Jurisprudents been considered variety solutions for lack of influence the sale of mortgaged property. The first Solution is invalidity of sale. The second solution is lack of influence the sale (adherents of lack of influence about the survival of the right of mortgagee have disagreement. The first group remains right of mortgagee on mortgaged property. Other group believes that permit Cause fall of right of mortgagee and finally, third group Consolidate right of mortgagee on price, namely Substitute of mortgaged property). The third Solution is unenforceability of contract against mortgagee that is of branches of the theory of lack of influence. Finally Some Considered Correct; sale of mortgaged property. A group of adherents the validity of sale, remain right of mortgagee on mortgaged property and small group, know established his right on price (Substitute). This article paid to study on this diverse ideas in juridical various schools.

The period that the parties intentionally communicate with each other to make a contract as a final draft or ignore it, is called pre-contractual period. In this period, parties negotiate together on the terms of future contract and use their most endeavors till to reach the final point i.e. making the contract. It may be situations which one of the parties has been incurred some costs at this period, while another party closes the negotiations unilaterally. The principle of freedom of contract has the consequence of acceptance of precontractual risks by the parties. However, sometimes damaged person may find compensation right and the other party is obliged to compensate on the basis of special reasons. Liability to compensate for such losses will be called pre-contractual liability. Nowadays, pre-contractual liability has been considered by legal system of some countries like France.

The foundation of the contract have a considerable effect on the interpretation of the conditions of the validity of contract, their position in the contract and their impression in the iranian law .This research surveys the impacts of the contract foundations on essential conditions for the validity of contracts. Is the essential conditions for the validity of contracts a prepared pattern which is determined by legislator or divine sources and they must exist in all contracts, because in the view of legislator or divine sources, they are necessary. Or in the absence of these conditions, will of parties is broken and consideration is incomplete. Or essential conditions for validity of the contract are necessary for order in society and strong trades. We are going to answer to these research questions. The essential conditions for the validity of contracts may be based on individualism, or social necessity, or legalism, and or only divine will.

Information technology has not only revolutionized the human life, but has also established a new space called cyberspace . Due to the very nature and constitutional elements of this space ,it has both served the human and worked as an instrument for committing ceitain illegal affairs.Cyberspace, similar to real space, has provided a new venue for offenders to commit crimes. This way, computer offenders will resort to offend cyber users. The broad, trans-boundary nature of the crime can serve as a reason for lack of any effective decision in confronting the problem by different countries so far. Therefore, this article, considering the need for nationally and internationally supporting the victims of cybernetic crimes, has tried to investigate criminal laws considered for such people. Unfortunately, the current laws and the cybernetic regulations are of unique nature requiring the formulation of both general and certain field specific laws. It is necessary to indicate that the local courts can also rely on the principle of international credibility, to combat cybernetic crimes and support the victims. The current laws and procedures within the national and international domains are neither sufficient nor effective. So, the establishment of international consensus on different issues such as development of international treaties, supervision of cybernetic spaces, formation of international cybernetic police, establishment of cybernetic courts, modification of the current computer crime laws and reevaluation of domestic crime investigation procedures can help to overcome the shortcomings on cybernetic laws.

Goods delivery and its effect are important subjects in law that have been investigated in the sales contract. Delivery in the form of actual or by rule results in the occupation and ownership of the goods by the customer and make him/her capable of claiming an ownership right for the goods . In the present article, the common nature of delivery both in Iran and Syria as well as jurisprudence and the Vienna Convention has been emphasized . From the samples of delivery, it can be referred to the transfer of property about the total goods- transfer of commutative liability- waiver of the lien on goods . The mentioned concepts, beside the minor differences in their rule system, are expressed in a similar way. Identifying the common rules of delivery of goods and its effect pave the way for creating a convergence between the two countries rule system by joining to the international Conventions or developing sample rules.