پژوهشنامه حقوق اسلامی
پیاپی 60 (تابستان 1402)

According to the famous (in the meaning of prevailing) view of jurists, ‘Ijtihad’ is a prerequisite for making judicial decisions. Some others permit the adjudication by non-Mujtahid judges. Although both sides of arguments are based on reasoning with references to the Qur'an and the Sunnah, there is an objection to the way of reasoning of both sides, since they have been made in the absence of the analysis of practical process of adjudication and in the ignorance of the element of ‘codified law’. The establishment of the regime of Islamic Republic of Iran and legislative process based on Sharia standards indicates a transformation in the subject of adjudication, requiring reconsideration and reexamination of Ijtihad requirement in the light of such a transformation. The current article reviews the common jurisprudential arguments on Ijtihad requirement for adjudication and analyses its process and stages. Then, with an emphasis on the extent of the influence that religious rulings have on law and human measures, with taking into account the nature of Ijtihad and comparing it with the nature of dispute resolution, accompanied by the consideration of certain requirements of judicial system, such as the uniformity of judicial practices, it will ultimately reinforces the perspective that is in favor of non-necessity of Ijtihad in making judicial decisions.

In parliamentary regimes, principally parliament has the authority to remove political officials from office due to violation of laws or failure in execution of governmental duties. Mechanisms of political  supervision of ministers include notification, questioning, and impeachment. This article employs a descriptive-analytical method, by using library sources, to examine the subject of formality for the political supervision of ministers under the legal system of Islamic Republic of Iran and the Mashrooteh (Constitutional) era. Comparative analysis and historical evolution of this topic pose the question of which system, either the Mashrooteh (Constitutional) or Islamic Republic, has had a more dignified approach to the formality of political supervision of ministers by taking into account the legal, cultural, and historical background of Iran?     The outcome of this research demonstrates that in the mechanisms of notification and questioning, the current political system, contrary to the Mashrooteh (Constitutional) one, has systematically and rationally provided rules governing the application of these parliamentary competencies. On the other hand, in impeachment mechanism, limiting the Members of Parliament to propose it in specific cases, and the effective and accurate examination by Commission had turned the impeachment process into a reasonable and efficient formality during the Mashrooteh (Constitutional) Era, while, in the Islamic Republic system, the quorum for proposing impeachment, the ease of the application of impeachment process, and the broad scope of impeachable subjects have posed notable challenges.

Iranian Civil Code does not explicitly address the occurrence of misrepresentation by silence. According to Article 438 of this Act, those ‘Operations’ that lead to deception are generally considered as misrepresentation. Some legal scholars believe that deceptive operations are occurred by a commission of an act, or an omission. Others include intentional silence as a part of these Operations. A similar divergence exists among Imamiya jurists. Some argue that ‘concealing a defect‘ is established through actions that demonstrate the non-deficiency in the the subject matter of the contract. Others contend that, if there is an awareness as to the defect, then silence and abstention from disclosing the defect will amount to the concealment of the defect, and consequently ‘misrepresentation’. Most jurists base the religious ruling of silence and non-disclosure of defects on the principles of deception and misrepresentation. However, some others find it challenging to apply the customary concept of deception to silence, as deceit and fraud typically occurs by deceptive actions. Moreover, the existence of an intent to deceive and the bad faith of the silent party are not customarily proved. Particularly, what has been prohibited in narratives related to deception involves doing deceptive activities such as mixing the subject matter of the transaction with other things. This article critically examines and evaluates the above perspectives, concluding that the proponents of establishing misrepresentation by silence lack convincing reasons. Additionally, a careful examination of the theoretical foundations of their position reveals that relying on misrepresentation in the cases of silence lacks substantial support, but a jurisprudential reputation. Especially, the religious prohibition of silence and non-disclosure of defects have not been established before many Imamiya jurists. Ultimately, it became evident that the existence of the ‘option of defect’ as a ‘postural </span>ruling’ for silence and abstention from disclosing defects is acceptable in Imamiya jurisprudence.

The notion of the "Revival of Public Rights" has always been a controversial topic in legal doctrines and judicial practice. Public rights and their instances on one side, and the concept of revival on the other, constitute the core of this divergence. This ambiguity has intensified with the emergence of new social developments, necessitating the anticipation of innovative methods to ensure public interest more prominently. The necessity to sue environmental violations, capital market misconduct, problems related to the quality of automobiles, and over the recent years calamities arising from the COVID-19 pandemic are among the factors that have posed discussions related to the revival of public rights and judicial methods to guarantee public benefit. While discussions on judicial guarantees of public interest in our legal system are of less enrichment, in legal systems of other countries, it has been extensively elaborated. Public interest law and the associated topics, such as public interest lawsuits, position, and rights admissible in these lawsuits, are closely linked to the concept of revival of public rights. This article, by employing a descriptive-analytical method and utilizing library data, along with interviews with most of provincial prosecutors and their practices, aims to remove ambiguities associated with the concept of public rights and its revival through comparative data analysis, with a focus on common law systems. Based on the findings of this research, public rights should be interpreted as rights without any limited beneficiaries, and retrieval, in terms of nature, signifies the concept of supervision and is equivalent to the non-criminal authorities of prosecutors.

Distinct encounters with the concept of "Corporate Governance Regime" have given rise to diverse perspectives. Prior studies in Iran guided us towards the prevalent approaches, namely "Anglo-American" and "Continental European," followed by "East Asian." However, in the last two decades in Scandinavian countries, the "Nordic Approach" (semi-dualistic) has emerged from within the "Continental European" framework. Its primary tenets include reliance on the "Stakeholder Theory," "Controlling Shareholder," and "Employee Participation in the Board of Directors," with distinctive features such as "Concentrated Ownership," "Semi-Dual Board," "Bank-Centric Financial Provision," and "High Financial Transparency" serving as its key indicators. Consequently, this research seeks to explore the distinctions and commonalities of the "Corporate Governance Regime" in the Nordic approach and Iranian law through a comparative study and an analytical-descriptive methodology.</span>     Despite noteworthy theoretical and practical efforts in Iranian law to elucidate and actualize the "Corporate Governance Regime" by issuing directives and mandatory regulations for joint-stock companies active in the stock exchange market by the Securities and Exchange Organization's board of directors, the absence of coherent, unitary regulations in this regard has posed challenges for joint-stock companies and their supervision. The elucidation of the "Nordic Approach" in this research, with the aforementioned features, suggests, for the first time in Iranian law, the proposal of regulations aligned with "The Future Law of Commercial Companies" that allocate independent sections to the corporate governance regime. This includes recommendations such as "structural alterations to the board of directors and the establishment of a supervisory body, incorporating shareholders and employees to enhance employee rights," "increasing incentives for the active presence of joint-stock companies in the stock market," aiming to secure more financial resources through the market itself rather than relying solely on entities such as banks, and "incorporating transparency requirements into the regulations of the stock exchange's independent section from the law."

In permanent marriage, wherein the dowry of wife is defined as a specific and non-transferrable immovable property, and after the death of husband, it is discovered that the dowry belongs to another person, making a substitute for the dowry is put on the deceased's heirs. However, uncertainties regarding the valuation of the property and the extent of recoverable damages, such as issues pertaining to the time of property valuation and the possibility of claiming damages resulting from devaluation emerge. The current research, following the silence of Iranian lawmaker, by virtue of jurisprudential texts and using an analytical-descriptive method scrutinizes the aforementioned matters. A comparative study of the aspects and consequences of the subject based on the foundations and rulings of similar matters such as responsibility against non-belonging of subject matter or price of contract and unauthorized contracts, and taking into account other jurisprudential and legal instruments, it is concluded that the day on which the husband becomes debtor for the dowry substitute coincidences with the day on which the real owner of the property does not affirm the allocation of the property to the wife. Concerning the possibility of seeking compensation by wife, in cases where the due date is different from the date on which the husband became debtor accompanied by devaluation, only damages incurred by the wife will be recoverable in accordance with Articles 515 and 522 of the Code of Civil Procedure and are limited to those losses sustained during the husband's lifetime.

In the sale of generic goods, there are no ascertained goods agreed between the contracting parties. Legal systems use various ways to ascertain goods in the sale of generic goods. In some cases, there may be a dispute between the parties arising from the conformity of delivered goods with the characteristics mentioned in the contact. Therefore, the aim of the current research is to examine the ways of ascertaining object of sale contract in the sale of generic goods under the selected legal systems and the comparative study of dispute resolution ways in those systems with the descriptive-analytic method. The outcome of this research shows that in Iranian law and Egyptian law the generic goods are ascertained by description or sample, and in English law, in addition to the said ways, the test of suitability of object of sale for a specific purpose is also applied. In case of any dispute between the patties in ascertaining the generic goods, under Iranian and Egyptian laws, it is solved by examining the quantity, material, description and conformity of goods delivered with the sample, and in English law, as well as this method, it may be solved by considering the appropriateness of the object of sale contract for a specific contractual purpose of the parties. In Iranian law, under general rules of law, the seller, in case of any dispute, must prove that there is a conformity between the goods delivered with those characteristics stipulated in the contract. If the buyer, after delivery, claims any lack of conformity, he must establish it. In English and Egyptian laws, the buyer has the right of examination of the object of sale contract at the time of delivery of goods. If the goods lack contractual characteristics, he must ask the court to examine the goods. Finally, the burden of proof in English law in case of any non-conformity is on the buyer, and the establishment of the features of object sold in Egyptian law is on the buyer.

In Islamic government, legislation is one of the most important examples of application of guardianship [Velayat] to people, their honors and properties. Therefore, recognizing the standard Fatwa in this area is extremely important, since it will be the legitimacy test of the legislative’s actions. Considering that in the Age of Absence [of the Twelfth Imam] the right to apply guardianship has been assigned to a completely qualified jurist and assuming that a government has been formed, the making decision in social and governmental affairs (rulings of the Sultaniyeh [governance]) is the responsibility of the ruling jurist, the present article assumes that the standard Fatwa in legislation, which is the area of interference in social and governmental affairs, is the ruling jurist's Fatwa. With this assumption, this research, by re-investigating this basis in the opinions of constitutional judge, with a descriptive-analytical method and by examining the interpretive, consultative and comparative opinions of the Guardian Council, has come to this conclusion that several opinions from the constitutional judge support and strengthen the said assumption. On the other hand, this view that the Fatwa of Guardian Council’s jurist is the test for measuring the legitimacy of the Parliament’s enactments, can be interpreted as the confirmation of Constitutional Act by the ruling jurist and the assignment of supervision by him. Accepting this view will not only deprive the Guardian Council of the important task of supervising legislation, but also it will be a doubled emphasis on the necessity of satisfying some characteristics such as "justice", "awareness of the requirements of the time", "being a Muslim" and finally "expertise in various legal fields" which are mentioned in Principle 91 of the Constitutional Act in selecting jurists and lawyers of the Guardian Council.