جستجوی مقالات مرتبط با کلیدواژه "قانون مدنی" در نشریات گروه "علوم انسانی"

The civil code in general, and family law in particular, are significantly influenced by the majority views among Imami Shiite jurists. However, the system of family rights in Iran has become disrupted and incoherent due to several factors. These include the silence, ambiguity, and limited number of family law articles, modifications to some articles that deviate from the majority view after the 1982 reforms, as well as the enactment of family support laws in 1974 and 2012. As a result, legal doctrine has faced challenges, and prosecutors have encountered conflicting opinions. Some argue that this lack of coherence is due to the reliance on majority views of jurists. However, this approach does not effectively address the legal gaps. The application of majority views in family law encounters three main issues: the absence of a clear majority view, conflicts between majority views and the principle of family strength, and inconsistencies with general family policies. Each of these issues is examined in detail through judicial cases in this article.

Revocation plays a crucial role in regulating legal relationships among individuals in society. Due to the diversity and complexity of its nature, the concept of revocation remains largely unexplored. In Islamic jurisprudence, revocation is considered an independent general theory, while in law, it is not seen as an independent theory but is discussed under concepts such as revocation of wills, gifts, testimonies, etc. Revocation is a unilateral legal act realized with the intent of creation. It is neither an absolute judgment nor a right but is relative and person-specific, non-transferable, and subject to partial waiver. Revocation, as a general theory, can dissolve legal acts alongside its similar instances and can assert its position through legislative enactment. This research aims to explore the theoretical foundations of the general theory of revocation in contracts, unilateral acts, events, and its legal nature from the perspective of Imamieh jurisprudence and Iranian Civil Law. The research methodology is library-based, and the type of research is analytical-descriptive. The principle of autonomy of will in contracts, such as in contracts and unilateral acts, is accepted unless it conflicts with public order and law. This principle is essential for the dignity and freedom granted to humans by God. Generally, every contract is formed through the concurrence of two wills, with the parties intending to sustain its validity and effects. However, sometimes, by examining legal provisions regarding contracts and transactions and observing the nature of some contracts, we find that certain contracts can be dissolved through revocation. This legal act creates complex discussions in contracts like endowment, mortgage, and gift.

Epilepsy was mainly considered a mental illness in traditional medicine and the understanding of jurisconsults, attributed to the influence of bodily humors or supernatural events and Jinns. Based on this analogy, the majority of jurisconsults considered epilepsy to be one of the defects that could nullify the marriage contract, comparing it with insanity and believing that epilepsy is a mental illness. However, at the moment neuroscience holds that epilepsy is a neurological and nervous disorder. The present research uses the descriptive-analytical method and recent scientific findings to invalidate the analogy between epilepsy and insanity and contends that epilepsy does not nullify the marriage, unless it becomes a factor in hardship and inconvenience, in which case it can nullify the marriage.

In some cases, damage is incurred by the lessee when the corruption of the lease contract is established due to the non-fulfillment of its conditions and elements. Despite being neglected from the point of view of the legislator, it has been of interest to jurists, and three theories are proposed by them: opinion surety, non-surety and opinion of details. The results of this article, which was carried out using a descriptive-analytical method, show that maintaining the tenant's guarantee is preferred in many ways; because with the corruption of the lease, the lessee's lien is subject to aggressive lien and it is not considered a trust lien, therefore, based on the general rule of "‘ala al-yad", i.e., compensation for the damage caused to the property is included in the lessee's surety. Also, the principle of no harm negates the occurrence of damage to the property and requires the tenant's surety. The rule of respecting the property of the believer is also one of the reasons according to which the lessee must return the property of the lease while taking responsibility for the damage caused. Therefore, the lessee's surety towards the lessee is considered feasible, which requires the legislator’s revision.

The expansion of the institution of the bank in the societies and the effects of the legal relations formed in connection with it are so vast that it casts a shadow on all the economic aspects of human life. The preparation of a legal form for investment deposit within the framework of certain contracts led him to establish Article 559 and in the struggle of this thought, the mudarabah contract has taken precedence over other forms, but the legislator, by establishing the law on banking operations without usury, is inclined to the proxy contract. The existing works, by emphasizing the differences between the power of attorney contract and the investment deposit account, have emphasized the uncertainty of the legal relationship that has occurred; The position that is in the order of erasing the problem statement; Because simply calling the legal relationship indefinite without prescribing a special framework and rules will not only solve the problem; On the one hand, it will cause many problems for the banking network, such as what is the form of the relationship between the depositor and the bank and what rules does it follow, and on the other hand, it will cause conflicting opinions in the judicial system; In this article, an attempt has been made to give a logical answer to the problems raised by this group on the legislator's position of the law on banking operations without usury, with the help of the descriptive-analytical method and by adhering to the opinions of the Imami jurists and the general rules of the civil law, and in this way, the legislative theory Based on the power of attorney, knowing the above relationship is proved.

Today, arbitration has become the main and most important mechanism for resolving disputes in business relations. In addition to the fact that proofs of litigation are presented in courts, this importance has been given importance in domestic and international arbitration as well, with the difference that proofs of litigation in civil law are subject to court procedures and regulations, but in arbitration Domestic and international proofs of litigation will be easier and more efficient for the parties. Because the burden of proving and presenting evidence in arbitration is the same for the litigants, while in court, the process is often not like this. The obtained results indicated that the legislator has clearly defined the duty of the litigants and the judge in the civil law both in the procedure and in the rules of proving the claim; However, in the arbitration rules, a brief reference has been made to the reasons and methods of its evaluation, as well as the consensual nature of arbitration and its reliance on the agreement of the parties; This issue has made the proof of the lawsuit ambiguous in terms of court supervision.

In Islamic jurisprudence, the subject of organ donation and transplantation has been carefully examined in light of the religious rules. The issue of organ donation is an important religious topic that was not addressed in the time of the Prophet Muhammad (PBUH) or even the early Islamic jurists in its current form. Considering the scientific advancements in medical science and the deep connection between Islamic jurisprudence and human health, the religious ruling on organ transplantation has become a major concern for Islamic societies. Contemporary jurists, based on Quranic verses, narrations, and an examination of jurisprudential rules and texts, have presented different interpretations regarding the permissibility of organ transplantation. In the Iranian Civil Code, the topic of organ donation and transplantation is independently regulated under the section titled "Organ Donation and Transplantation." According to the Iranian Civil Code, organ donation must be voluntary and with full consent. On the other hand, organ transplantation requires meeting certain conditions, such as the absence of a serious risk to the health of both the donor and the recipient.

In order to strengthen the legal relations of individuals and prevent any instability and instability in the obligations and implementation of contracts that lead to disorder in the economic and social relations of individuals in society, in all countries and worldwide, The provisions of the contracts have become binding. The principle of necessity also means that individuals must abide by their own commitments and agreements and consider them respectable and binding. All contracts entered into in accordance with the law follow certain principles and rules. The legislature has also introduced and reviewed these common principles and rules as the "General Rules of Contracts." The first principle that the legislator has dealt with in these articles is the principle of necessity, and this is the same principle that the jurists call "the principle of necessity". The literal meaning of the word principle and the customary and religious structure of this principle in sale is necessary; That is, the intention of the people to buy and sell is that the original owner's relationship with the property is severed, and he becomes alienated from it, and the cucumber is an external right that is placed for one or both parties and is revocable. The meaning and concept of the principle of necessity in legal terms is that, when a contract is concluded correctly, the principle is that it is necessary between the parties and they must be faithful to the obligations they have made. Therefore, any contract that is not specified as permissible is necessary and neither party can terminate it except in certain cases.

In the last part of Article 244 of the Civil Code, the legislator stipulates: "... the condition of corollary cannot be revocable" therefore, in order to explain the aforementioned ruling the majority of law scholars have stated that in cases where the condition of corollary is formed by the creation itself, in terms of the fulfillment of the condition, the possibility of its revocation is unthinkable, and in the event that the fulfillment of the mentioned condition is impossible for some reason, basically no condition has been formed to talk about its revocation, however, this research has not been accepted by jurists. Jurisprudential studies also indicate that according to great jurists, it is not possible to revoke the condition of corollary. Therefore, this research with a descriptive-analytical method, while examining the theories of law scholars and great jurists, including arguing the legal mechanisms of suspension and timing, viewing the registration of the said condition, considers the last part of Article 244 of the aforementioned law indicating the irrevocability of the condition of corollary in most cases and by presenting new analyses infers the possibility of revocability of the said condition in a series of cases.

With the events after the constitution and the formation of the modern government in Iran, the pillar of law, which became one of the foundations of the modern government. In this regard, Ali Akbar Davar, with the support of the Majlis and the efforts of a commission of first-rate scholars who were well-versed in jurisprudence and new laws, began to compile the civil law, the outcome of which was actually the adaptation of the civil law to Imamiyya jurisprudence, which some correctly called "Persian jurisprudence". In civil law, a constructive and dialectical balance was established between Imami jurisprudence and new laws, which created a masterpiece of legislation. The main question of this article is how jurisprudence and law interact in civil law before and after the revolution. The hypothesis of the article is that in the drafting of the civil law, this interaction has been highly respected due to the presence of scholars who were both jurists and knew new laws. The findings of the research have shown that although Iran's legal construction in the field of civil law has remained almost constant, in some ways due to the imbalance between the law and jurisprudential sources, and multiple interpretations of legal articles, problems are observed in some cases that require Check the rules. The approach of the descriptive-analytical article and the library data collection method.

There are different classifications of property. One of the important divisions is the division of property into movable and immovable property in civil law. The purpose of this article is to examine the division of movable and immovable property in the Civil Law and the effects of this division.

This article is descriptive and analytical. Materials and data are also qualitative and data collection was used in collecting materials and data.Ethical Considerations: In this article, the originality of the texts, honesty and trustworthiness are observed.Resuts: this division was created in Iranian law under the influence of French law. In determining the competent court, the acquisition of immovable property by foreign nationals, the method of confiscation of property, the cost of proceedings, the non-commerciality of immovable property transactions, and the method of wife's inheritance have different effects. In fact, in the mentioned cases, there is a difference between movable and immovable property.

In the division of movable and immovable property, intellectual property, such as what is discussed in intellectual property rights, has not been considered. In the division of movable and immovable property, intellectual property, such as what is discussed in intellectual property rights, has not been considered. Although this property is placed in the form of benefits in the traditional division of movable and immovable property, it seems that due to the growing role of this type of property, it is necessary to clearly consider it in the division of property in the civil law.

Often in economic relations, there is no economic balance between producers and consumers, and in many cases the rights of consumers are harmed. The laws regulating private relations between individuals, especially the civil law, due to its general nature compared to many other laws, only state the general rules and principles and leave attention to the details to specific laws or the rules that Its existence seems necessary in the relationship between producer and consumer, it is silent. Identify the supporting rules. In this regard, firstly, the cases of this law which are also taken into consideration in the civil law, and then the cases which are specific to the law under discussion and mentioned for the first time in this reference are stated. The result of the research shows that despite the existence of similar rules between the civil law and the consumer rights protection law, such as the need to compensate for damages and the method of action regarding defective goods, other rules such as the need for a warranty, the concept of collusion, determining punishment for Damage caused by defects, the need for a standard, the prohibition of forced sales, the need to have an authorized representative or repair shop, the need to affix product labels, the need to form associations to protect consumers' rights, the need for monitoring and inspection, and joint liability can be considered as specific rules of the law. Protection of consumers, and the innovations of this law compared to the civil law.

Citizenship is the legal-political relationship of a person with a government, and as a result, granting citizenship is considered a sovereign matter. Therefore, each of the legal-political systems of the world impose strict rules for granting citizenship and accept only those who have successfully passed numerous political, economic, social and cultural tests and have proven their affiliation with that political system. to be Although the legal system governing citizenship, especially in articles 976 of the Civil Code, regardless of the nature of citizenship, in order to honor women Iranians and the provision of social services to their children from marriages with non-Iranian men, widely prescribed the granting of Iranian citizenship to these children with the additions of the place of reflection and caused damage to the body of the system of granting citizenship in Iran and the dignity of women. The negative effects caused by the implementation of this law, despite the short period that has passed since its approval, can be seen by disrupting the order governing the granting of citizenship in Iran, and the need to amend this law and other laws related to citizenship is felt more than ever. In response to the question "what challenges does the legal system of granting citizenship to people, especially children of Iranian mothers, and how should it be solved with a humane approach?", the present article, with a descriptive-analytical method, made suggestions to reform the citizenship system .

The meaning of "sale" is not defined in Shariah but rather has been shaped by customary practices. In this process, usages of the wise (Sireh) have played a significant role, contributing to the credibility of this concept. Within Imami jurisprudence, there are differing views on the tangibility of goods as a condition of a valid sale contract, which can be summarised as follows:Both parties' considerations must be tangible.Only the seller's consideration must be tangible.Tangibility is not a necessary condition for a sale contract.In line with the second view, the Iranian Civil Code has enshrined the requirement for the goods’ Tangibility in Article 338. The main question is what criteria can be used to make the subject of Article 338 of the Civil Code more flexible and include it in the scope of data and information related to the property. However, this essay argues that this provision no longer enjoys legislative support, although it has not been formally repealed. Instead, we propose interpreting the concept of goods in its literal sense, i.e., the object or the property itself. Furthermore, Imami jurisprudence has the potential to adopt a more flexible approach in this regard, where common sense plays a prominent role in the opinions of jurists. Therefore, we suggest that the third view, which does not limit the types of data or information that can be considered in a sale contract, could be strengthened

In consensual divorce, the husband and wife can agree on matters such as Mahriyeh, alimony, dowry and custody of children and then separate. In addition to the custody of the children, they must also agree on the meeting of the children with their parents after the divorce. In the evaluation of feasibility of agreeing on the effects and rulings of marriage dissolution, the main question is whether what is agreed upon is a right or a ruling or both? In fact, there are cases where the ruling or their rightness is doubtful. If the example in question is a ruling, it is not possible to agree against it, but if it is a right, it is possible to agree against it, and if the right is shared by both parties, the prevailing aspect of the ruling or the right must be clarified

Immaterial  properties are assets that do not exist externally but are recognized by society and recognized by law. According to one view, all objective rights (such as easement), the right to do business, goodwill, and intellectual property rights (intellectual property, literary, artistic, industrial, and cultural heritage) are among the immaterial properties. In Iranian law, the ownership of this properties is recognized. Relying on general legal provisions, the transfer of immaterial  properties cannot be considered a sale and, as a rule, the transfer of immaterial properties is done in the form of Article 10 of the Civil Code and indefinite contracts; unless the Civil Law is amended, or the jurisprudence, as a unified procedure, approves the attachment of the transfer of this property to the sale, or the laws that have been approved later, recognize the transfer of the cases of this property as a sale. In the amendment bill of the Trade Law approved in 1968 and the Securities Market Law approved in 2005, the words "buy and sell" have been used repeatedly, and it seems that the legislator has been identified the share sale of companies, which is one of the examples of immaterial and non-intellectual properties. The sale of key-money is a "transfer" in the Landlord-Tenant Relations Law of 1977, but in the practice of trade and even lawyers, everyone talks about the sale of key-money. Typically, the key-money transfer documents of shops and stores refer to its sale instead of renting or transferring interest and key-money. But in the case of the right to acquire or profession or trade, despite the fact that the custom of buying and selling this property is clear, in terms of the contradiction of the society's perception with the explicit ruling of Article 338 of the Civil Code, it is still not possible to consider Iran's rights as surrendered as a definite custom of the society.

In this article, we seek to find out with field research based on interviews, what is the degree of agreement or disagreement between couples and the legislators. Surveys have shown that the couples' understanding of privacy does not primarily result from the knowledge of the civil law, nor does it result from the understanding of the legal text if they are aware of the law. Couples' understanding is more influenced by external knowledge of the concept of privacy. However, this research has shown that many do not even know what privacy is, so we want to check the extent of its similarity with the understanding of the legislator. The result of the research has shown that there is a vast difference between the legislator's understanding of privacy and the activists' understanding of it, and the legislator should come to a new understanding of privacy and amend the existing law and fill the legal gap. Couples should also temper their understanding of privacy with the understanding of the legislator, although individual opinions cannot be used as a criterion for judging the rights of the parties and cannot be submitted to legal authorities.

An important issue in the field of civil law as well as the jurisprudence of contracts is the discussion of the necessity or non-necessity of observing the basic conditions for the validity of transactions regarding the terms of the contract. In the Iranian civil law, the conditions for the validity of the condition are not explicitly enumerated. One group mainly cites that the condition is also a kind of agreement, all the basic conditions of the validity of the transaction must be observed, and in contrast, another group considers the conditions mentioned in Article 190 of the Civil Code to be related to independent and original agreements. They do not face it unconditionally in the field of conditions during the contract. In particular, invalid conditions are enshrined in civil law, and the legislature has not specified such things as invalid conditions as invalid conditions. This article considers the provision of an appropriate answer to the issue in question depends on paying attention to the principles of civil law in the field of basic and general conditions of contract validity. Examining these principles, we come to the conclusion that intention, consent, competence and the necessity of legitimacy are necessary for a condition such as contracts, but in principle, a brief knowledge of the subject is sufficient.

Sunni scholars maintain two different perspectives on goodwill: A group has validated it based on the tradition and religious expediency; others have regarded it as illegal according to its lack of religious documentation and its negative consequences. In the present study, the perspective of the proponents of goodwill validation will be approved, based on which receiving goodwill price is free of religious objection. In addition, goodwill is regarded in accordance and consistent with the Landlord and Tenant Relations Law passed in 1997. Instances of acceptance of goodwill price can be in exchange for fame and privilege of a location, or benefit of permanent residence in aforementioned location, or in return for the owner’s waiver in his right to benefit from the ownership, even if the owner of the benefit is not the owner of the object of sale. The result of the induction in the opinions of the Sunni jurists, the Iranian civil law, and legal texts is that there are six types of goodwill in estates and premises. In addition, in all of these types, Sunni jurisprudence and Iranian Civil Law are in accord and consistent with one another, except for the sixth type (traditional goodwill) in some legal texts. This inconsistency, however, seems to be a verbal rather than a substantive difference.