پژوهشنامه حقوق اسلامی
پیاپی 59 (بهار 1402)

‘Law’ is the foundation and cornerstone in creating a legal regime. From the Constitutionalism Era until now, Muslim thinkers and scholars have always endeavored to investigate the concept of law and its related issues, and examine the ratio between legislation and canonization (Shariat). Among these scholars, martyr Beheshti has a worthy position due to his high scientific and jurisprudential capability and representation of an active role in codifying the constitution of the Islamic Republic of Iran. The current research, using a descriptive-analytical method, seeks to answer this question of what the position of ‘law’ and its related issues in the thought of martyr Beheshti is? The results of this research show that, according to the thoughts of martyr Beheshti, the existence of ‘law’ in a society is necessary for its management, and the mere factor of education cannot bring real felicity to the society and for this reason, he considers the law as a binding rule from a powerful source that imposes duties on the society, and if people disobey the law, they will be subject to punishments. From his point of view, the law governs all relationships between individuals, and everyone is equal before the law. Furthermore, in his view, law is divided into three types: authoritarian, national and universal. He believes that the ratio between law and freedom in Islamic society is such that the law determines the limits of freedom. The process of legislation in the Islamic regime is the confluence of ideologue and democracy, and in the process of writing laws, attention should be paid to the three important principles: rule of Islam, observance of public interests of society, and rule of justice.

Nowadays, transparency as one of the indicators of qualified governance is an essential need of governments in almost all aspects of governance. Definitely, transparency in the process of holding elections is one of the ways of holding a healthy election. Accordingly, evaluation of transparency in elections may include observers and executors of elections on one hand, and election candidates on the other hand. In the general policies of elections, as an upper-hand document, the requirements of a transparent electoral system have been illustrated in order to improve the country's electoral system and reach the favorable condition. Based on this, this article, by a descriptive-analytical method, aims to answer this question of, according to the general policies of elections, what are the weaknesses and gaps concerning transparency in the current legal regime governing the parliamentary elections and the solutions to reform it? By examining the general policies of elections, it was found that the lawmaker should reduce the ambiguity of requirements of candidates based on the foundations of Islamic Republic regime. Furthermore, the assets, properties and election costs of candidates should be made transparent to all voters. The executor of elections should employ clear and trustworthy framework in the process of voting and vote counting. Furthermore, legal authorities must respond to the inquiries made as to the approval or rejection of candidates’s qualification in due course and avoid any delays.

Conflict in the general definition of ‘contract’ in Article 138 of the Iranian Civil Code and also conflict between this definition and the other definitions of contract in instances such as sale contract in Article 338 of the Iranian Civil Code, are amongst controversial issues. Article 138 of the Civil Code has not acted uniformly in defining the contract. On the one hand, this article defines ‘contract’ of an obligatory nature, and on the other hand, in Article 338, it is defined referring to the nature of examples of ‘contract’ with vesting ownership. This duality in the definitions of contract has given rise to this debate of how ‘vesting ownership’ can be perceived as ‘obligatory’ nature. To solve this conflict between the two concepts of ownership and obligation, some solutions have been expressed by Iranian legal scholars, but they have not been successful in resolving the conflict. Therefore, the question of the present research focuses on the feasibility of resolving this conflict. The hypothesis of this article can be formulated as follows: "The existing conflict is one of the examples of fundamental conflicts in the Iranian Civil Code which cannot be resolved.” This hypothesis will be presented in the course of this research by examining the dual roots of the Iranian Civil Code in the Roman-Germanic tradition and the jurisprudential (Fiqh) tradition. The present article refers to the viewpoints of jurists (Fuqaha) and lawyers by an inferential-interpretive method in the subject of the article, and then proves the validity of the above-mentioned hypothesis by means of interpreting and criticizing their theories.

Imamiya jurisprudence has formed the main foundations of the Iranian Code of Civil. Based on this dependence, the basic and general views of the Code of Civil and, accordingly, some of the opinions of legal scholars are derived from jurisprudential opinions. One of these opinions is the definition that has been provided for unauthorized contracts. Imamiya jurists consider any contract in which an unauthorized person has dealt the property of the owner as an ‘unauthorized contract’ and becomes valid and enforceable by the owner. The same approach has been considered as a certain and undeniable affair in the Civil Code, and accordingly, Iranian legal scholars have also acknowledged this definition of unauthorized contracts. The investigation made in relevant narrations and custom, shows that an unauthorized contract can be declared valid and enforceable only in a situation where the unauthorized person does not have any possibility to communicate with the owner to obtain his permission. In this case, if he makes the contract in good faith and with an intention to gain benefit for the owner, provided that he has a deep friendship or tie with the owner, or is an agent on his behalf and without trespassing the scope of his authority, this unauthorized contract can be declared valid and enforceable by the Owner.

In this article, the criteria for identifying ‘waste in law’ or ‘as waste’ in Islamic law, by studying the rule of ‘transfer to a third party of good faith’ in judicial practice and the proposal to amend the Articles 323 and 325 of the Iranian Civil Code, with the aim of resolving disputes between courts and creating a uniform practice in courts have been analyzed. The fundamental question is what the rule and criterion for the realization of ‘waste in law’ is, which has been used and cited in Iranian laws and judicial practice in recent years, and whether it is possible to analyze and present the various criteria that have been proposed in Imamiya jurisprudence to a single criterion format or more general criteria? With an analytical-descriptive research method and extensive study in Imamiya jurisprudential texts and judicial practices, it was concluded that the majority of the various criteria accepted by the Imamiya jurists can be interpreted in a general rule, i.e., ‘absence of dominance’. However, this lack of dominance is sometimes used in a very broad sense, sometimes in a very narrow sense, and sometimes in a conventional sense. In recent years, the judicial practice has adopted the transfer of property to a third party of good faith as a criterion for ‘waste in law’, especially if changes have been made in the subject-matter of contract. This is an idea that has also been applied in the proposal to amend some articles of the Civil Code. From an analytical point of view and in terms of compliance with Imamiya jurisprudential foundations, it is suggested that if the ‘Volenti non fit injuria’ </em>rule is applied and the transferee is in ignorance of right of others, waste in law, which is a legal presumption, is realized.

In most legal systems of the world, the creation of a ‘will’ requires the observance of certain formalities. Since these formalities show the genuine intention of the testator, hence they prevent fraud, facilitate and regulate legal proceedings related to wills, and they have always been paid attention by law-makers. Based on this, Iranian law only recognizes official, self-written (handwritten), and secret wills as legally effective wills. Similarly, in American law, the legal validity of a will requires to be formal, self-written (handwritten), or notarized. The question is raised as to whether the withdrawal of the will requires the observance of formalities or not. In other words, if the purpose of stipulating formalities in the phase of creation of a will is to protect the intention of the testator, prevent the deception of forgers, facilitate and regulate the legal proceedings concerning the will, then, do not these aims require that the withdrawal should also be based on formalities? In this article, an attempt is made to answer this question with a descriptive-analytical method. The conclusion is that in Iranian law, wording of Article 838 of the Civil Code, the silence of the Probate Code, and Imamiya jurisprudential views indicate that the withdrawal does not require formalities. However, the above-mentioned view, by an accurate analysis of Article 838 and considering functions of formalism, still have an aura of ambiguity. In contrast, the position of American law is evident; the legal validity of withdrawal depends on the satisfaction of certain formalities. Nevertheless, since the formalities of withdrawal lead to the ignorance of the testator’s intention in some cases, solutions have been provided to avoid them. These solutions have not been accepted yet, due to their weaknesses.