جستجوی مقالات مرتبط با کلیدواژه "ارکان" در نشریات گروه "فقه و حقوق"

What is studied under the title “Non-contractual indebtedness” in the  Imamiah jurisprudence is interpreted as “Civil Liability” in modern law. Despite some similarities, there is a substantive difference between them that non-contractual indebtedness in Imamiah jurisprudence is one of the causes of ownership and civil liability is one of the causes of obligation in Romano Germanic legal system. The importance of the issue becomes more apparent when we see a dual approach in this regard in Iranian law. On one hand, the Iranian Civil Act and the Islamic Penal Act address these issues under the influence of Imamiah jurisprudence, referring to them as non-contractual indebtedness and remaining faithful to the jurisprudential nature of non-contractual indebtedness. For example, in the first volume of the Civil Act, under the title “On property”, the second book is called “On the causes of acquisition”, the second part is titled "On contracts, transactions and obligations”, the second chapter is called  “On the obligations that are obtained without a contract. In this section, after discussing the general principles, a chapter titled “In Non-contractual indebtedness” is dedicated to matters that give rise to “Non-contractual indebtedness”. On the other hand, there is the Civil Liability Act in Iranian law, which is based on Roman-Germanic law. In this legal structure, by analyzing the relationship resulting from civil liability, the focus is on the relationship between two individuals rather than between a person and their property. The person causing harm is obliged to pay compensation without causing debt.The present writing describes and analyzes the fundamental distinctions between non-contractual indebtedness and civil liability. It seeks to answer the question of what differentiates these two concepts and how this duality affects them. The authors' hypothesis is that there is a fundamental difference between non-contractual indebtedness and civil liability, resulting in different foundations, pillars and rules. Research shows that this fundamental difference has multiple consequences in the foundations, pillars and rules of these two concepts. For instance, while the foundation of civil liability is fault-based, the foundation of non-contractual indebtedness is based on the respect for the property of the believer. In the context of the Iranian Civil Act, the mere occurrence of damage to the property belonging to others triggers the responsibility of the person who caused the harm, regardless of whether they were at fault. In contrast, under the Civil Liability Act, a person is held responsible for compensating damages only if they committed a fault. Ignoring this distinction has had negative consequences in the Iranian legal system, leading to ambiguity in identifying the foundation of these concepts and often mixing the foundations of civil liability” and non-contractual indebtedness. The impact of not paying attention to this distinction is also evident when differentiating between “Direct Destruction” and “Indirect Destruction”. In common legal perception, unlike “Direct Destruction”, “Indirect Destruction” requires fault as a condition for triggering non-contractual indebtedness. However, the study shows that fault as the foundation is not generally accepted in either “Direct Destruction” or “Indirect Destruction” as a basis for non-contractual indebtedness. In fact, one could argue that it is the consideration of fault that allowed the Civil Liability Act to expand the scope of compensable harm compared to non-contractual indebtedness, which does not require proof of fault. In other words, having a broader protective scope under the Civil Liability Act is due to the acceptance of fault as its foundation.The duality of non-contractual indebtedness and civil liability also exhibits significant distinctions regarding their pillars. For example, in terms of the scope of compensable harm, non-contractual indebtedness, based on the concept of ownership, is primarily limited to property damages. In traditional interpretation, property damages are further restricted to  the  actual property or profit. This minimalist perspective fails to adequately protect other types of harm, such as moral damages. It is noteworthy that none of the provisions in the Iranian Civil Act explicitly recognize compensable moral damages. This structure should not be considered inadvertent. In reality, this structure, accepted in this Act, does not allow recognizing this category of damages as compensable. In contrast, the Civil Liability Act, Without analyzing the resulting relationship to ownership and based on the concept of obligation, supports a significantly broader range of damages and thus provides more appropriate protection for the injured party. This difference is also evident in the context of the causation relationship. A lot of attention on establishing the relationship of real causation in the non-contractual indebtedness has led to the lack of identification of non-contractual indebtedness in relation to the act of a third party. This is despite the Civil Liability Act, which, by distancing itself from the necessity of establishing a real causation relationship, offers a more straightforward way to identify civil liability in cases such as liability arising act of a third party, making employers or the government accountable for the actions of their employees under certain conditions.This duality between non-contractual indebtedness and civil Liability also leads to different rules. For example, regarding the extent of a judge's authority in issuing a judgment for compensation, there are clear differences that stem from an understanding of this duality, along with the reasons behind it. When considering the analysis of the relationship resulting from non-contractual indebtedness as a matter of ownership, the judge, when issuing a judgment, only takes into account the extent of the damage caused to the injured party. The judge does not have the discretion to consider factors such as the quality of the harmful party's behavior or their solvency or insolvency, which could influence the amount of the injured party's property. In this structure, only institutions such as insolvency are available to the judge to grant the debtor time to pay the debt. On the other hand, civil liability, in alignment with its duty-oriented nature and its diverse objectives, seeks to employ various considerations like the quality of the harmful party's conduct or their financial status in determining the amount of compensable damages. It does so with the help of tools such as justice . It is clear that neglecting these distinctions can lead to difficulties in analyzing relationships between various legal provisions.This paper aims to reveal multiple distinctions between non-contractual indebtedness and civil liability by focusing on their fundamental differences. It is only through understanding this duality that it becomes possible to provide suitable answers to some ambiguous questions regarding the relationships between legal provisions of Civil Liability Act and Civil Act.

Among the legislative measures in the law amending the issuance of checks in 1997, is the creation of a new method, in addition to guaranteeing previous performances, to receive the amount of returned checks; However, the holder of the check applies for enforcement by presenting a certificate of non-payment to the competent court, and the court, without substantive consideration and merely fulfilling some apparent conditions, this document, like other final court rulings previously Has been judged and judged and at least two stages have been considered, issues an executive order. Although the necessity of creating this special solution, in addition to guaranteeing other performances, is questionable, but benefiting from this new privilege, has several drawbacks such as: inaccurate determination of executive authority, ambiguity in the concept of "holder", lack of compliance certificate The signature by the bank is the possibility of bringing the executor against without substantive proceedings, the impossibility of claiming compensation for delay in payment even if a legal condition is included in the check and a summary such as the "check amount deficit" clause, which is exceptional and may not be interpreted. Extensive has caused ambiguities in the adoption of this new strategy. In this article, in addition to the legal analysis of the mentioned article and the review of the elements of executive issuance, an attempt has been made to give a clear answer to the various ambiguities.

TThe professional service providers’ specialized knowledge and skill versus the service customers’ unfamiliarity with the process of service providing cause difficulties for the injured party in proving the main elements of the contractual and non-contractual liability. As a result, sometimes wasting the injured parties’ rights and improper imposition of damages is unavoidable. For this reason, different legal systems such as French Law and Common Law try to eliminate the complaints’ inequality by considering special basis for the professional’s civil liability.This article seeks to explain the professional’s contractual and non-contractual liability’s main elements and pillars from the prospective of its effect on the injured party’s rights. A comparative study of French Law and Common Law and assuming the civil liability's basis for the professional service providers in Iranian legal system shows that in many cases, the injured party is exempt from proving the harmful act and the casual relationship or it is easily possible for him to prove it.

The scholars of the fundamentals disagree on the effect of prohibition on trading, but are less convinced of the effect of prohibition on trading. Most of them believe that when it comes to the result or the cause it causes the transaction to be canceled and corrupted. From a legal point of view, the legislature sometimes invalidates the guarantee of enforcement and sometimes does not. In some cases, he also expresses his disagreement with the act by saying, "Forbidden, not allowed, should not, ..." In this case, the question arises whether the mere entry of the transaction will invalidate the transaction and not affect the agreement of the parties? Or, on the contrary, in keeping with the principle of authenticity for the sake of the explicit mandate of the legislator, should the transaction be considered correct? In this analytical and descriptive article, it has been examined that the legal difference between the prohibition effect when it belongs to the underlying conditions and the basis of the transaction is different from the cases where the prohibition applies to conditions other than the essentials and to the extent applicable. Depending on the category and criteria presented, it is sometimes a guarantee of non-cancellation and sometimes other guarantees such as cancellation and even ineffective. But, in principle, there is basically a duty to forbid impeachment.

Contract as one of the sources of commitment has the most application in the legal relations in society. therefore, analyzing the elements of the contract is so important. The contract is defined in the Civil Code and its basic conditions are stated in Article 190, but it is the responsibility of lawyers to analyze the constituent elements of the contract. Professor Jafari Langroudi has provided appropriate analysis in this regard in his works; Accordingly, the purpose of this article is to review the analysis of Professor Jafari Langroudi, which has been studied by examining his views and theories in a descriptive manner, and finally we conclude that he has provided new and original reading of the concept of contract and Its elements . Using this theory, he called the nature of the testamentary disposition as a unilateral legal act and also the nature of the unauthorized transaction as a contract.

Traditionally, the bill on contracts has been disputed among lawyers and jurists. Popular opinion, knows the reception as part of the elements of contract. Consequently until the reception is not fulfilled the contract is concluded and has no effect. But civil law is silent on the role of reception in mortgage contract. It must be noted despite articles 47, 364, 798 of civil law regarding the role of reception in (devotion , Sale of gold) and donation expressly considers reception as an element of contract, and without it the contract is not cancelled, such constraint cannot be seen about mortgage. This silence arises from the ambiguity which analytically exists over the role of reception. In this paper, while reviewing various opinions, a new point of view has been taken to the subject, and with analysis of the elements of the contract and the common intention of the parties we concluded that the reception in mortgage contract is in fact the suspension on the establishment of the effects of contract not one of the elements of the contract.

The customary and general categories of the offences are: Private interest criminal offenses and Public interest criminal offenses In its restrictive concept, Private interest criminal offenses are of the offences that their criminal process is in current only in the condition of the victim complaint and with his voluntary dismissal in every stage of the conviction; this process is terminated by the decree/order for suspension of prosecution. In the criminal policy of Iran, these offences follow one concept and the change of its legal instances and establishing some similar institutions does not make problem in the conceptual originality. In the criminal procedure and the penal code of Iran (1392), this boundary and separation has been paid attention by the legislature in some extent. With careful determination of the elements comprising Private interest criminal offenses and knowing how the relation between these elements, this paper tries to find out their legal effects in the criminal procedure, so that with considering the criminal and disciplinary liabilities which the judicial authorities have in their way to judge in relation to these elements, the possibility of making better decision is provided for them in this field.

Company one mans, is a term that has recently entered the legal literature, without it, the relevant laws, any name, since it is used only for some of the company's formation a few traditional items by a person with limited, the lift is the European Union, countries in the forefront of this kind of shit forklift company come to regard, first, to agree and opposing opinions a lot about this new form of corporate activity that existed Eventually led to the creation of a coherent structure and base of a single company, pane was a partner. In line with international trade rules, antabgh in the article of the Bill, the Iran trade 479 dated 1391, forming a limited liability company, to lift a single partner has been forecast. But how to lift the company's existence the primary and up to what? The three pillars of the company's single-mode, in the special case, being a partner find what fitted properly? A single corporate liquidation and purify the stream of a partner is how?