فهرست مطالب محمد مولودی

The fact that the judge must reach certitude and then proceed to issue a judgment is a truth acknowledged in the law of proof of claim. Acquiring certitude is subject to a set of norms and rules called "ethics of certitude". Not all certitudes, with different bases, could be considered valid. Regardless of the philosophical and epistemological issues regarding the nature of certitude, how to achieve it is also very important. Relativists believe that the criterion of acceptability and validity of certitudes is their reliance on reason. A valid certitude is a certitude that is justified by sufficient evidence and reasons. A certitude that is not supported by reason lacks epistemological value and validity and cannot be used as a basis for action. The necessity of the judge's compliance with the rules related to the ethics of certitude is higher because judicial certitudes involve important social and practical consequences. The certitude of the judge seriously affects the rights and social affairs of the people; therefore, achieving the certitude is extremely important to the judge. In a descriptive-analytical way, the present article examined and compared the rights of proof of litigation with the criteria of certitude ethics. Whether the judge has the authority to evaluate the evidence freely or whether he has to agree to the provisions of the evidence and issue a verdict based on them are among the most critical challenges of proving a claim.The current study examined proving a lawsuit in the courts from the perspective of ethics of certitude. According to al-Qaida, a judge must follow all the moral rules and knowledge frameworks to gain certitude, and only then can he make his certitude the basis for issuing a verdict. The basic question is whether it is possible to pay attention to these criteria in the court according to the rules governing the rights of proof of litigation and the criteria raised regarding the validity of certitudes. Is it possible that the rules related to proof of litigation conflict with the principles of certitude ethics? One of the most important challenges ahead is the concept of imposing proof on the judge. Some reasons, such as confessions, regardless of whether they convince the judge or not, "must" be the basis for a verdict. Such a concept strengthens the hypothesis that it is basically not important for the legislator to believe in the judge, and contrary to the initial idea, the judge, without certitude and knowledge about the subject of the lawsuit, must also make his decision. On the other hand, the free assessment and the granting of absolute discretionary powers concerning the evidence in the case give rise to the fear of judicial tyranny and disregard for reasons. It seems that a correct understanding of how the judge acquires certitude is related to the fundamental positions in the ethics of certitude. Without paying attention to these original foundations, getting a clear and comprehensive picture of the relationship between reason and the judge's certitude is impossible. Although the prevailing approach in the domestic and international legal systems is that the judge is free to evaluate and accept reason, epistemological investigations and attention to the foundations of moral certitude clarify that certitude gets its value and validity from reason and not vice versa. On this basis, it is not acceptable for the judge to hear (consider) the reason and pass it by without gaining certitude. Either one should argue against the reason, or as long as the light of the reason is clear, one should stick to its implication and believe its contents. In this sense, the imposition of evidence and their priority on the judge's certitude is more defensible than arbitrary freedom in accepting and rejecting evidence.

Ethics in interaction with law as a normative system overseeing behavior and social relations, controls humans in their individual and social life within the framework of reason and logic. Compensation for damages is one of the most important issues in the field of civil liability, and the method and quality of compensation has important personal and social effects and the discussion of moral foundations in the method of compensation strengthens the general acceptance and the perspective of realizing social justice. the approach of playing the role of the cause of damage in compensating all types of damage (material, spiritual, physical) with the acceptance and satisfaction of the victim is a secondary agreement in choosing the method and quality of objective compensation that replaces the primary damage. and by examining and conforming it to moral principles such as justice, fairness, goodwill and negation of difficulty and embarrassment, it is preferable and superior to any method and quality of compensation, including monetary method which is studied in the present research with a descriptive-analytical method of moral foundations, with a comparative view of French and English law. the compliance of this approach with the aforementioned ethical principles is as follows with the description of the information and nobles of the perpetrator of the loss and the victim on the amount of damage and the proportional compensation method, on the one hand, all the damages caused to the victim will be compensated. on the other hand, according to the condition of the person causing the loss and the facilities of the person causing the loss, the mentioned difficulty and embarrassment will be avoided.

 Laws of procedure are full of templates and forms through which the will necessarily emerges.  "Formalities" are considered as one of the most important forms. Sometimes, the proceedings must be carried out with special arrangements and rituals that the legislator has determined, and these special arrangements have turned "formalities" into one of the important principles and characteristics of proceedings. The stubbornness of the ritual rules and their subjectivity have made it difficult to understand the nature of the formalities. With such a bad reputation, these formalities lose their attraction to be used and studied. For this reason nowadays, judicial systems  tend to reduce formalities and specify a minimum of them for proceedings. However, the present article tries to examine the formalities and understand their meaning through functional analysis. The most prominent and important theory in contemporary sociology is "functionalism" or the attitude of authenticity of function.  This analysis focuses on efficiency and function. One of the important principles raised in the interpretation of formal rules is the interpretation of these rules based on efficiency as well as goal-oriented interpretation. Paying attention to function and purpose has been accepted as a basis in the legislation and implementation of formal rules. At least in the civil code, there are cases where the legislator specified the function and purpose of the regulations. Article 155 of the Civil Code for example, has mentioned the function and purpose of providing evidence as follows: "Providing evidence is to preserve it...". The functions and purposes of other judicial institutions are not authorized and should be analyzed with inferential tools. In ascertaining and inferring the functions and goals, it should be noted that a rule may have several functions and goals. Although the function of communication is to inform the audience, some contents in the judicial document have a separate goal, which cannot be achieved by simply informing the audience. For this reason, by achieving a function of a rule, the work cannot be considered finished, and perhaps this is why a group believes that the search for the function and purpose of the rules should be done individually in each case and situation. what is the function of formalities? What purpose and function the legislator expect from this institution by determining them? The study hypothesizes that formalities cannot affect the main functions of an institution. A rule, the absence of which disrupts or makes incomplete the function of the relevant institution, is not a formality.

Although civil code and most of the Islamic jurists have accepted the guarantee for a deceased person, there are some controversies in this regard. Some belive that the lagd personolity end by the death but some others believe in the continuation of obligation after death. There are some traditions about this issue. Regarding the controversies about this theory, it is necessary to study that the guarantee made for the deceased person is based on what foundation and analysis. There are also different views about the nature of guarantee for deceased person in the jurisprudence and law and most Islamic jurists and some lawyers believe that it is real guarantee. But some studied it under the titles such as assignment, guarantee conditioned to original payment. Apllxing for wasting property inexehing considrationand novation. On the other hand, and according to some Islamic jurists, the presence of principal debtor is not the necessary condition for the realization of the guarantee; however, some jurists opinon consider it as the basis of the contract and consider the guarantee contract null and void due to the lack of this element in guarantee for deceases person.

In principle, the harms of proximity to social life are inseparable and customary unity is tolerable. Property law has tried to regulate neighborhood relations in various ways (easement, neighbors' legal obligations); But if the neighbor's harassment causes harm, the issue of compensation arises. In many cases, no negative intent or misuse in the exercise of the right can be proven. However, on what basis should the damage to the neighbor be compensated? In Islamic law, various principles have been expressed to compensate for losses. Examining the issue in an analytical-descriptive manner, this result has been obtained. In all cases, with customary truth, the attribution of damages to the perpetrator of the loss, based on the No-Loss Rule, must compensate the damage.

Class action is an action sued on behalf of an unspecified group of the injured persons. These actions, which have been formed in common law, and in particular in American law, make it possible for a number of people who have similar claims with the palintiff to be heard in a single lawsuit. Due to the significant advantages of these actions, the necessity of their acceptance in the Romano-Germanic legal systems as well as Iran law is raised. However, some principles and concepts of Romano-Germanic law and Iran law and some structural differences of the American law, have created obstacles to the acceptance of American class actions in other legal systems.

The purpose of this study was to investigate the occurrence or non-occurrence of divorce in cyberspace by email, texting or other mass media, the research was descriptive- analytical and was conducted using content analysis. The data gathered based on library and documentary method. The virtual divorce means that the couple divorces his wife by using an email (email) or a text message and the like. The jurists are dissenting about the occurrence or non-occurrence of such divorce. A group believes that although divorce is subject to circumstances, divorce in this way is due to the opposition to the religious law, the lack of conformity with the Islamic lifestyle, the existence of deceit and deceit, the lack of mutual will, the promotion of chaos in society, and the destruction of the foundation The family is not allowed. In contrast to the advocates referring to the general and divine laws and divorces, the analogy to Hazel divorce and written divorce, the confession of the couple in the presence of the judge and his determination to divorce, and the submission of the e-mail containing the registered electronic signature and compliance with the terms of the divorce, Its occurrence is permissible. Based on the research carried out, the theory of proponents, according to the prescribed conditions, seems to be justified due to the strength of evidence, the conformity to the general demands and the requirements of the present age.

Civil liability from nuisance in property laws is one of the major areas in civil liability. People may cause nuisance or inflict harms to the latter through exercising their rights of occupation in properties. This subject matter is the area at which property rights and civil liability converge. On the one hand, the proprietor reserves an unlimited right of occupation in his/her property (Article 30 of the Civil Law). On the other hand, the right to property is restricted to this natural and legal right that the latter's property receives no damage (Article 132 of the Civil Law, and Principle 40 of the Islamic Code). The Civil Law does not have an explicit decree as to the civil liability of the proprietor and has not enumerated its provisions or elements either. Therefore, by comparative study of the subject, and via the analytical-descriptive method, it was concluded that the extra occupation of the reasonable would have the result of civil liability, if it would create nuisance in the property law and damage to the neighbor, whether it is intended or unintended for the proprietor. The absoluteness of the right, reasonableness of the act and satisfaction of needs shall not remove liability. However, the rule of "Prohibition of Detriment" governs the relations arising from vicinity and neighborhood, and the occupation by the occupier is customarily endurable by the vicinity law.

Impleader claim is one of ancillary suits which permit to the parties to implead third person to the action and became that person one of parties.The Iran civil procedure code, unlike some other countries for example Lebanon no attention to purposes of Impleader claim and in Article 135 the subject is expressed in general terms.With attention to generally speaking of this Article and referring to some other rules such as Considering third person as a party of the claim, preventrenewed and repeated claims and as a result, to eliminate the issuance of conflicting orders, It can be said that in a wide range of casesThere is possibility of usingImpleader claim.Therefore, the original plaintiff may implead third one and seek his conviction to original or related trials demand, also the defendant with impleader claim, may cause third persons convictionIn favor ofhimself(defendant) or plaintiff. In addition, impleader claim can be a preliminary and auxiliarymeans to win the principal lawsuit witch sometimes mentioned as auxiliary impleader claim.

Giving opportunity of modification is one of the sanctions against imperfect acts and measures which can be considered as the lowest cost and most defensive sanctions. Modification of acts has been analyzed in the light of “Theory of Nullity” and has taken important chapter in different countries. Civil procedure of France distinguishes between formal and substantive defects and devises special conditions and order for each of them. In Egyptian law, modification of acts can be done by perfecting or achieving to goal and purpose. It seems civil procedure of Iran needs to codification of system for modification. Accepting modification capacity for non-basic and subsidiary defects is compatible with our bases of Iranian civil procedure law and it seems first step should be taken on this basis in our law.

Inconsistent judgments in Individual lawsuit have bad effects on the validity of the judicial systems where there are actions with the same or common questions of law or fact and finding the methods for aggregation of the claims is one of the concern of different legal systems. There are different methods of aggregations of the claims accordance with the basis and principle of each legal system. Acceptance of Model case is one of these methods that is predicted in the German legal system. In such cases, an action is brought by one or more person and the final verdict is applied as basis to all registered individual cases.In the legal system of Iran, although model case are not accepted as a general rule, however we can see similar example of these actions in some statutes such as Law of the Organization and procedure of Administrative Justice Court. In this article with analyzing model case in German law and justifying the necessity of acceptance of it in Iran law, we want to answer this question whether model case can accept in Iran law?

In the Iranian laws, loss distribution is mainly the case when two or more causes impose damage and the interference of each one in the realization of damage is the basis for damage distribution between them. In common law, damage distribution in civil liability is considered in a broader sense and it is differentiated from the number of causes. In fact, under loss distribution, those cases are considered where the damages that should reasonably be paid by the imposer are distributed among members of the community via some mechanisms. Mechanisms that distribute damages are strict liability and insurance. Justifying participation of a group of people, who have no role in this damage and giving indemnity, is possible via economic meanslike promoting economic efficiency and realizing distributive justice in society and this is the subject of present study to investigate and analyze these basics.

The defense against plaintiff can be done in two deferent ways: denial of claim and challenging it (substantive defense) and objection to violation of procedural laws (formal or procedural defence). Each of these methods has its own nature and consequences. The subject of this paper is determination the scope of procedural defense and finding a criterion recognizing it from substantive defense. Taking it to consideration that the base of procedural defense is violation of formal rules, the criterion of recognition must be followed in the merit of these rules. Thus, the deference between procedural and substantive defense refers to the issue that whenever judge based on defense can express his opinion about substance we are facing with a substantive defense. But if the defense does not enable the judge to recognize the beneficial party, it will be a procedural defense. Lack of attention to this criterion has obscured recognition of defense methods in the legal provision, judicial procedure and doctrine.

The main subject of this paper is the analysis of nature of exceptions of article 84 of Code of Civil Procedure, based on the classification of defenses to substantive defense or formal defense. Although exceptions of article 84 of Code of Civil Procedure are accepted as formal defenses in general, but more contemplation can show that all of these exceptions don’t have the same nature. Most of the exceptions are formal rules, but they sometimes need to substantive rules and objective matters and this will not influence their nature. Some of the exceptions are substantive rules, but they are propounded in the formal law to use in the formal law.In fact this usage are introduction for performance of the formal rules. Some of them are substantive rules and as a result, defense against them is substantive defense. But article 84 of Code of Civil Procedure has the same manner with these exceptions.

One of the types of obligations that due to the multiplicity of the issue are mentioning is alternative obligation. Alternative obligation is an obligation that its issue is two or more things in within each other and just doing one of the issues is considered and by doing one of them, fulfill that promise is taken place and committed is absolve. An important question arises regarding the alternative obligation in the Iranian legal system verify the authenticity and validity of this obligations. Whether this kind of obligation in the law of Iran is legitimate and valid? This question arises in accordance with Article 190 of the Civil Code of Iran the deal must be determined and may be regarded as contrary to the provisions of this law there is an alternative obligation and for being indecisive issue of obligation and Gharar is void. More careful study indicates that different wavering obligation alternative obligation Gharar it does not flow. Moreover, the legal background of the above discussion indicates that the selection in implementing the obligation accepted by some great Shiah scholars and many scholars believe it to be true. This study aimed to identify the concept and principles of authenticity alternative obligation in the law of Iran carefully studied the sources of Islamic law and provisions, attributes, features and how to implement this type of obligation is expressed with comparative study of and Egypt.

Custody is considered as subject of research because of its importance on child’s mental and physical characteristics and of course it`s effect on society progress. The legislator always gives attention to child position and his (her) potential role in building of society basis. Child physical maintenance is necessary for growth along with proper training for spirit sublimation. Despite the importance of custody, legislator has not determined it`s precise definition and powers and custody of guardian (child maintenance) and subsequently the major issues is ignored. This leads to its confusion with similar titles such as warden, executor, guardian (child maintenance) The majority of bewilderments and questions of executive intuitions of law from legal department of justice, confirmed it. This article has determined the position, rights and duties of child maintenance altogether gaps and conflicts in this domain and given some resolutions. The law of family protection 2012, considered child custody with more accuracy and this lend to achievements and innovations in custody cases. But these innovations have some defects that we have presented these and given some resolutions for elimination of those defects.

In civil proceeding, plaintiff is require meanwhile access to valid evidence and provide it in the judicial authority, prove his claim. According to the traditional view, plaintiff is required to provide evidence from on behalf of himself and he could not obtained evidence proving claim from another party or third party. But today the view outdated and according to mechanism of disclosure of document, when document as one of the most important evidence, be in control another party or third party, plaintiff can request disclose it in order to prove his claim. The present research aims at a theoretical and comparative study, position of the legal system of Germany, Japan, France, England and Iran explain to the mechanism.

Increasing production and storage of electronic documents and information is one of the major consequences of development of IT. Accepting the probative value of electronic documents and information، they have become one of the most important and common evidences proving in litigation. Today، in many cases، the parties of litigation are compelled to exploit this type of probative evidence for proving their claims. When electronic documents and information related to litigation are in control or possession of the defendant، the other party can request their disclosure for his/her own proving claim. According to the request، the defendant is required to disclose in a four-step process to provide the requested electronic documents and information. The current research seeks to comparatively analyze the conditions governing the electronic documents and information disclosure as well as their sanction in English، American and Iranian law.

From one perspective, evidences in proving the claim in law are divided in two groups: persuasive and imposed evidences. Persuasive evidence is the evidence that judge has complete authority in accepting its contents. It affects in proving of claim only if the judge has convinced to its contents and has believed to its purport. Imposed evidence is effective in proving of claims apart from the judge’s belief; that is, the judge is bound to verdict on the basis of it, even if he has not been satisfied the imposed evidence. The concept of being imposed of evidences is related to judge’s belief and persuasion and the belief is one of the elements of realization of knowledge, which its formative foundations and quality of its establishment is studied in the philosophical issues such as theory of knowledge or epistemology. This paper criticizes the nature and concept of imposed evidence by using epistemological basics concerning the basis of belief, and acknowledges that this concept cannot be accepted and affirmed according to principle of symmetry in epistemology.

Plaintiff In civil litigation from the beginning which deals with petition to the end of litigation which the judge sets out a verdict، to reach his wasted or denied right and to stabilize it، should comply with rules of proceeding and state matter of fact and matters of law and prove the claim. Therefor he must propose four issues and prove them to reach the relief sought: 1. Formal rules of procedure 2. Matter of fact 3. Evidence 4. Matter of law. The defendant defends، against the four issues mentioned، to prevent formation of proceeding and rebut the plaintiff’s claim to prevent a conviction on the subject of the claim. Generally response of defendant divides to procedural and substantive defenses. Therefore it’s necessary to analyze the scope of defenses and especially substantive defenses which are this paper’s subject. Considering the issues mentioned، different method and grounds of defense، it could be said that substantive defense which occurs after entering into merit of the litigation، consists of defense against matters of law and fact and evidences.

With respect to the probative method, implied confession is different from explicit confession. To prove explicit confession, direct method is applied, and the intendment of the confession is exactly the one conforming with the confessor’s statement, while an indirect method is applied to prove implied confession and the confession is the intendment which is required for the confessor’s words and manners. So the implied confession is among the indirect proofs, beside ostensive definition; considering this similarity, the question is that whether the implied confession has the nature and the effects of the judicial presumptions or this matter has no effect on its being considered as a confession in regard to nature and effects. The results of research indicate that although there is a similarity between the proving method of implied confession and judicial presumption, the implied confession is of equal probative and effect credibility and ability except in the exclusive cases, as the explicit confession, and indeed is beyond judicial presumption.

The task of judge is todiscover the truth. There arevarioustheoriesabout the truth.this paper studies three important theories (correspondence, coherence and pragmatic theory).Correspondence theory follows arealistperspective and its logicalfoundationsareacceptable. This definition isalsoaccepted in trials. Coherence theory, because of different considerations and some philosophicalviews, canbe a criterion of truthinsomelegalmatters. Also in pragmatic theory, truth is definedin the light ofnotionsof profit andexpediency.Judge should search for philosophical concept of truth and the terms of legal truth and formal (relative) truth should not change its concept.

The Survey on the nature of confession plus to having theoretical importance، contain the undeniable practical effects. Various theories have been proposed about the nature of the confession، which can be divided into two general categories: theories which believe that the authenticity of confession in result of discover of fact and theories that don’t consider discover of fact as to the confession. Truth condition as one of the pillars of traditional definition from knowledge، means that provisions of proposition are correspondence with external reality. By analyzing this condition and its comparison with judgments that based on civil confession، can obtained this conclusion that confession، inherently and in nature، observer to the fact and in this sense، is validate. If belief and justification، also are existing in the confession، it will be considered as one of the evidences to prove case، that gives necessary knowledge to judge about case.

There is a difference between third party's mortgage and ordinary mortgage because in the first case not debtor, but the third party, who is not debtor, has to pledge his property for debt of another person (debtor). About nature of third party's mortgage, there are some opinions and in my view, it's substance is combination of general mortgage and suretyships contract. In this paper, the effects of this contract will be considered from that view.