جستجوی مقالات مرتبط با کلیدواژه « حاکمیت اراده » در نشریات گروه « علوم سیاسی »

The method of resolving disputes through judgement and arbitration, which in jurisprudential terms is considered adjudication, is popular and widespread nowadays in solving legal claims, because it is a fast, specialized method and a type of private judgment based on the will of the parties. In Twelver jurisprudence, some have held the belief that any lawsuit or litigation – whether judgment or arbitration – is not permissible to be brought before non-Muslims. Another group has adopted the same opinion as the primary ruling, but in the case of emergency and monopoly of recovering a right, they have allowed such a settlement only by referring to a non-Muslim judge or arbitrator with a secondary ruling. The basic question is that ‘taking into consideration the difference between judgment and arbitration and the lack of rule of the will of the disputing parties in appointing a judge authorized by the Infallibles or given reverse situation when the rule of their will in appointing the judge or arbitrator prevails, is the attribution of being Muslim to an arbitrator or arbitrators or arbitration organizations an end in itself or a means (instrument)?
Having expressed different jurisprudential views regarding the possibility of resolving disputes by referring to non-Muslims, the evidence offered for each of the theories was examined, then by making a distinction between secondary and primary rulings, the existing thesis of the permissibility of referring to non-Muslims was reinforced even on the basis of the primary ruling, except where it is believed this is to legitimize him or lead to the weakening of the Islamic government or the strengthening of the non-Islamic government.

The principle of sovereignty of the will as one of the principles governing the conclusion of international contracts means that contracts are subject to the law that is agreed upon by the parties to the contract; This principle is found in Article (27) of Iran's International Commercial Arbitration Law, and it is the Persian translation of Article (28) of the UNCITRAL Model Law, which has led to the issue in the following article: that is, the existence of two different conflict resolution rules in Article (968). Civil Law and Article (27) of Arbitration Law; According to Article (968), Iranians who are parties to an international contract do not have the authority to determine the law governing the contract, and according to another (Article 27), they have this authority to a large extent. The aim of the article is to analyze which of these two rules is the governing rule: the old theory of the rule of the law of the place of conclusion of the contract or the theory of the rule of the rule of will (the law chosen by the parties). Also, the first part of Article (968), which includes the rule of the law of the place where the contract is concluded, is mandatory or optional. Finally, the findings show that the solution to the conflict is the choice of the latter theory (the choice of the law governing the place of conclusion of the contract) and because the provisions of the Civil Law regarding the obligations arising from the sale contract are basically optional, the rule of conflict that makes the place of contractual obligations subject to the law The conclusion of a contract should logically be considered an optional rule.

The contract is one of the most important legal institutions that has existed for a long time in the history of mankind, and it can be said that the norms related to it are among the oldest legal norms. Thus, the history of the evolution of legal systems is directly related to the evolution of related legal norms in different legal societies and cultures and different forms of government. The most important legal and judicial developments of the present era can be attributed to the formation of social rights in the last decades of the 19th century. The main question of this research is whether it is possible to believe that the legal entity of the contract is affected by non-legal factors? In response, it seems that the contract as a social institution can also be affected by non-legal factors. It seems that the contract has elements that have undergone changes in each system, which we will discuss in this article in a descriptive-analytical manner. As a result, it can be said that the institutional contract is not purely legal and can not be viewed with a positivist approach and has witnessed changes under the influence of social factors.

The growing needs of societies necessitate the need for government intervention in business and economic affairs, and it is possible to improve the quality and performance of the legal system governing government contracts in the light of some theoretical principles and practical experiences. With the increase of population and the increasing expansion of government duties in the public interest, governments are forced to conclude various contracts of public and private type. Government contracts, in spite of preserving their classical and customary foundations, are an agreement between the parties to the contract and subject to the principles of all contracts. It is a private contract. In English law, when a contract is executed and a dispute arises between the parties to a contract, the matter is brought before a public court. The government, like the parties to the contract, is inevitably subject to the legal economic analysis governing the contract in the private sector. In Iran, concluding such contracts, due to the economic and social structure and absolute supremacy of the government, have special features and privileges that private law entities do not enjoy. In the United Kingdom, this type of contract, in which the government is a party, has a special feature and this is not necessarily for the provision of public services, because in this country the concept of public services is not known, but the public interest. Therefore, in this article, the effects of government contracts on the law of Iran and the United Kingdom are comparatively examined.

The principle of initiative of civil litigants is one of the strategic principles of civil proceedings. Based on this principle, what plays the first role in the formation, continuation and termination of the civil proceedings is the will of the litigants. There is a difference of opinion among jurists regarding the basics of this principle. According to the theory of accusatory proceedings, the dispute belongs to the parties, and the judge, without participating in the discovery of the truth of the matter, as it is, is satisfied with a ceremonial reality, and his conscience is based solely on what the parties prove to him by expressing their reasons. They do, it is persuasive. Based on the theory of ritual justice, the court should judge what it considers to be correct according to the reasons expressed by the defendants, and the court's decision should be substantiated and documented according to the law and the evidence in the case and evaluated from the perspective of a fair trial. According to the principle of the sovereignty of the will, the will of the litigants is manifested in controlling various aspects of the civil proceedings: including the initiation and continuation of the proceedings and the cooperation between the litigants and the court. The place of this principle in Iranian law is also of interest and it is noticeable that there are many legal evidences of the judicial actions of the judge with regard to the requests of the defendants, which can be justified from the point of view of the accusation of the Iranian judicial system, which is one of the bases justifying the principle. is.

The subject of this article is the clarification of the law governing the contract of transfer of certain property in English and Iranian law. While in English Law, movable and immovable property is subject to address of landed property in terms of acquisition of ownership and in terms of contracts, they are subject to the law governing the determination, in Iran immovable property is subject to address of landed property in terms of acquisition of property and movable property is subject to venue of the contract. However, dislocation cannot destroy their acquired rights, and in terms of contracts, the law of venue of contract is the same as the law governing the contracts. Therefore, foreign nationals can freely apply the rule of law. Due to the development of world trade, none of the regulations of the venue of contract of the venue of implementation of the contract and residence act of the parties can replace the principle of determination. Followers of the principle of the rule of determination believe that the determination has a wide sovereignty in the formation the contract; and it is valid in all legal relations, even if it is not in the form of a contract.

The condition, like the contract, is a manifestation of the rule of will and desire of the parties, which has a direct, mediated and significant role in concluding the contract, and according to many jurists and jurists, the condition is the stimulus of farewell and creative motivation of any contract. It will not end with contracts, although in the opinion of Iranian and British jurists and even Imami jurists, the condition is a subordinate principle. When the condition is raised, it is a contract, and without a contract, the condition will be meaningless. There are restrictions in the legal system, but these restrictions have no effect on the validity of the conditions, and this will is taken into account by considering other principles such as the principle of good faith, the principle of fairness, the principle of negation of hardship and the rule of no harm with the involvement of each country's legislature. They were supported, but they imposed restrictions on its implementation in terms of public order, so in this article we will see that due to the interference of governments, individuals are not so free in determining the conditions, and even the jurists stated as a rule. No, unless they are allocated, therefore They based restrictions on the principle that in many cases those restrictions not only do not conflict with the sovereignty of states, but governments have acted to create that restriction on the basis of collective interests. Consideration of these restrictions is determined in each country.

The rights of couples in Iranian law, jurisprudence and its adaptation to England with the aim of expression of the sharing point is descriptive and the main question is, what is the difference and similarities of financial rights in Iran, jurisprudence and English and the history of the principle of rule in them? Thus, examining the legal and legal basis of the rights of couples will strengthen the strengths and weaknesses of the parties. Comparative law also causes the emergence of common points and differences between the two legal systems to be adapted. The verses of the Quran, traditions and principles of jurisprudence which have somehow supported the will of the people and show that Islam is not indifferent to the will of the people. Nevertheless, the principle of rule of will is derived from the European law and the rich jurisprudence of Islam has given special attention to the principles mentioned in the couple's financial rights.