جستجوی مقالات مرتبط با کلیدواژه « غصب » در نشریات گروه « فقه و حقوق »

According to the Imami jurisprudence, in Article 311 of the Civil Law, the usurper is absolutely obliged to return the object of the usurpation to the owner, and this application has been allocated by the law approved in 1358 and the order to pay compensation has been made. The renowned majority of the jurists have not excluded the case where the rejection of the object entails the usurper's financial loss. Although the mentioned exception refers to a special assumption, but since it has no reason other than to accept the harmless implementation in the case of the ignorant, the lawgiver included the harmless rule in the special assumption of the law. It is considered applicable that its acceptance is limited to the case that does not require a huge loss to the ignorant possessor. Therefore, extending the ruling of this provision to similar cases is not a baseless development, but it is an example of the generalization of the ruling due to the generality of its cause and basis.

Despite the existence of many rules regarding liability for causing damage to another in Islamic law and the extensive fiqh doctrine in this regard, it has not developed into an independent branch of legal studies and laws within Islamic law. However, the law of Torts is recognized as an original branch of law in modern Iranian law. Influenced by modern French and Roman-German tort law doctrine, Iranian legal doctrine has established general rules and theories of tort law that can be applied to all aspects of causing harm to others. This approach differs from the approach taken by faqihs (Islamic jurists) towards torts, which form the basis of modern Iranian law. According to the Constitution of the Islamic Republic of Iran, all rules of Iranian law should be in accordance with Shiite fiqh. Shiite fiqh applies different principles to different torts, and there is no general rule or principle applicable to all torts. Due to the influence and supreme position of fiqh in modern Iranian law, these differing approaches have led to significant misunderstandings in modern Iranian Tort law. It seems that the most suitable and efficient approach for Iranian tort doctrine is to move away from the idea of unified tort law and consider this area of law as diverse, where different general rules are applied based on the nature of the specific tort.In fact, according to modern Iranian doctrine, all torts are based on three elements: Damage, Act of harm to another, and Causation. The doctrine discusses each element independently. Regarding Damage, the doctrine presents different types of damages: physical damage to property, financial and economic losses, personal injury, moral damage, etc. If the damage suffered by the claimant is recognized as reparable under tort law, the element of damage is satisfied. The doctrine then considers different ways in which civil liability can be established, such as negligence, personal acts, vicarious liability, traffic accidents, malpractice, and more. Finally, the doctrine addresses causation as a necessary condition for civil liability. When all three elements and their respective conditions discussed in separate parts are met, there will be a liability to compensate the victim by making payment for the damages. The doctrine then proceeds to explain how damages should be compensated. Generally, the compensation principle is presented as a golden rule applicable to all forms and types of damages: the tortfeasor is liable to fully compensate for the damage suffered by the victim without making any profit.Considering tort law as a unified concept, the argument about the foundation of tort law (Negligence or Strict liability) has been presented as a unique principle applicable to all kinds of torts, damages, and acts that engage civil liability. However, this approach does not align with actual Iranian law based on Shiite fiqh rules. The conditions and effects of tort law differ depending on the nature of the damage, and the compensation rules vary accordingly. For instance, in cases of damage to properties, civil liability is established when physical damage to property is caused by a tortfeasor, regardless of whether negligence was involved or not. In this area, there is no distinction between intentional and unintentional harmful acts, and strict liability is recognized as the foundation of tort law. On the other hand, the conditions for pure economic or financial loss are different. These damages are not considered as engaging civil liability unless they are caused by a criminal act (intentional malicious act). The compensation principle applies to all kinds of property damages.The conditions for engaging civil liability for personal injury differ from those for property damage. Civil liability to compensate the victim with monetary payment is primarily established for unintentional acts. In cases of intentional harm, there is no civil liability, and the tortfeasor is subject to retaliation as a crime. When civil liability is recognized, similar to property damages, torts are based on strict liability. The amount of damages for any bodily injury is determined by law, and the compensation principle does not apply in this field.Regarding moral damages, the conditions for civil liability are different from other types of damages. Traditional law did not anticipate civil liability for moral damages, considering harmful acts as crimes punishable by appropriate punishment. However, in recent criminal procedure laws, civil liability alongside criminal punishment has been recognized in relation to moral damages. Although civil liability for moral damages is provided for by law, it appears that the nature of liability remains punitive for the tortfeasor. The deterrence aspect of civil liability is essential in determining damages, with the amount of money determined primarily based on the intention and malice of the harmful act and its impact on the victim. Consequently, the compensation principle does not apply in cases of moral damages, and damages are determined more by considering the circumstances of the harmful act rather than solely focusing on the harm itself.The conditions, elements, and effects of other areas of tort law such as Nuisance and Trespass differ significantly from those mentioned above, as discussed in both Fiqh's (Islamic jurisprudence) and legal Iranian doctrine.Considering all these differing conditions, elements, and remedies in governing Iranian Tort law, it becomes evident that there is no singular logic of tort in Iran; instead, there are multiple torts. The modern doctrine that follows a unified logic and approach to torts makes a significant mistake in understanding the rule of law and often leads to uncomfortable suggestions for its development. A better way to understand the applicable rules and propose new ones is to study Iranian tort law according to a multiple theory that aligns more with traditional Iranian law and Shiite fiqh rather than following the logic of tort law in French civil law or Roman-German approaches.

Land under human ownership has a special place and importance in all legal systems and the legislator provides important protections for this property by observing certain conditions. The rights of Islam and the common law also attach special importance to land and have protected the owner and occupier in various civil and criminal regulations. The legal establishment of Trespass is one of the most important issues of tort law in the common law system in this regard, one type of which is Trespass to land. Although this legal establishment does not exist in Iranian law with such a title, by careful evaluation and recognition of its elements, it can be claimed that its contents can be found in the institution of forcible entry and usurpation in Iranian legal system. Since Trespass to land has a long history in common law judgments, by analyzing and comparing the elements of these three institutions, one can identify the commonalities and differences between the elements and responsibilities arising from each in the two legal systems and the achievements of this. Due to its long history, the regime used domestic property lawsuits to promote domestic law. This article analyzes and compares the elements and responsibilities of these three legal institutions after examining the elements of each of the trespass to land in the common law system and the forcible entry and usurpation of Iranian law

The issue of eliminating the effects of usurpation in properties, beyond the past, has turned into a battleground between the principle of property respect and the institution of equity. While the aforementioned principle seeks maximum protection of the rights of the rightful owner and the disciplining of the usurper, even with good intentions, through the establishment of strict judgments and traditional regulations regarding the institution of usurpation in Iranian civil law, the institution of equity aims to prevent misuse of rights by the owner and the imposition of significant harm on the usurper with goodwill, striving to moderate traditional and strict interpretations. Although initially the institution of equity was manifested in the form of legal texts on civil liability, the turning point in fair efforts comes with the approval of the "Legal Bill on the Removal of Encroachment and Compensation for Damages to Properties, passed in 1358" by the Council of Revolution. In this research, using descriptive and analytical methods and utilizing library resources and judicial procedures, we have sought to examine the quality of mitigating the effects of usurpation in non-past properties, considering the principles of property respect and the institution of equity in the legal system of Iran. It has been observed that, under certain conditions, there are legal capacities for issuing fair judgments that can secure the interests of both the owner and the usurper with goodwill in Iranian law.

Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation considering the pure obedience of the legislator in enacting Articles 301 to 327 of the civil law, accepting the well-known opinion of the jurists in a general or general manner, this extremist view has been seriously criticized by the commentators of the civil law. And basically, the application of the rules of usurpation to non-aggression, in which the basis of possession and domination is based on ignorance of truth and error and lack of malice, is in clear opposition to the principles and rules of justice and fairness and the requirement of the principle innocence. Therefore, in this article an attempt has been made with the help of scattered jurisprudential and legal opinions and related legal materials in order to modify the popular opinion and explain the responsibility of non-aggressors based on the use of other sources of coercive guarantee take a step.

The usurper in Shīʿite jurisprudence is obliged to return the specified usurped property, except in the case of destruction (both factual and constructive) of the usurped object. Article 323 of Civil Code based on this, considers purchaser of the usurped property as a usurper which the owner can refer to him for the return of the specified object. A proposed bill, however, based on the amendment of the above article has been submitted to the parliament in order to protect the validity of the official document and protect the rights of a bona fide purchaser, according to which the usurped property that has been transferred through drawing up and making an official document and the customer is ignorant of its usurpation is considered as a destructed object and the owner is only entitled to its price, which can only refer to the “usurper purchaser” to receive it. The aforementioned proposed bill is controversial in terms of jurisprudential foundations, which is examined in the present article by a descriptive-analytical method and using original jurisprudential sources, because the criterion for the realization of constructive destruction is the occurrence of an intellectual or religious impediments in the return of the existing object. “Capable of being owned exceeding,” “impossibility,” “bodily injury,” “Destruction of a property with a known owner,” and “Destruction of a usurper’s property especially in the assumption of destruction and demolition of his/her considerable property” are among intellectual or religious impediments to the restitution of a specified object and cause the realization of the title of constructive destruction, but the mere “transferring acts” due to the forcible illegitimate possession of the usurper does not lead to the realization of the religious impediment and consequently, the title of a constructive destruction about a usurped specified object. In addition, in the case of the constructive destruction of a usurped specified object, the customer, whether ignorant or knowledgeable along with the usurper purchaser is the liable and responsible for something identical (fungible) or the price of the usurped property and merely ignorance will not be removed his/her liability.

There are three distinct periods in the history of the relationship between civil and criminal liability: mixing, separation and convergence. After civil and criminal liability were integrated into each other for a long time, in the 17th century AD, grounds for their separation were provided. Nowadays, civil and criminal liability in modern legal systems are separated from each other and with the approaches proposed in each, they are getting closer and effectively communicating with each other. By applying the aforementioned developments in Iran's legal system, it is clear that the distinctions between civil and criminal liability are not properly observed and clear faces of mixing are evident. In particular, strict rules have been considered in the civil law and in the discussion of the owner's rights and the liability of an ignorant person for usurpation; including absolute responsibility, disregarding the value of the usurper's work and the usurper's guarantee regarding non-reimbursable interests. The imposition of such rulings and its extension to the ignorant usurper is not compatible with the principles of civil liability, and therefore it can be considered as a manifestation of mixing civil and criminal liability in Iranian law. Because this approach is more of a criminal responsibility than a civil responsibility, and it has caused the objectives of another field of responsibilities to be raised and pursued in the civil responsibility. The present research examines the mentioned subject in an analytical-descriptive way.

Non- profit damage is one of the complex and controversial issues in Iran's legal system that disputes arise from Note 2 of Article 515 of the Code of Civil Procedure 1379; The enactment of the Criminal Procedure Code of1392,which in Article 14 and Note 2,there are changes compared to the previous law,Not only has it not removed the ambiguity, but it has added to it.In order to remove the existing ambiguities,first of all, non-profit Must be analyzed in jurisprudence And with a new perspective on the concept of property,benefit and profit, we must examine the issue that the damage to non-profit(profit)is guaranteed?Is it a non-profit property that is wasted?Why in Note2to Article14, is the only loss of possible benefits guaranteed?This research examines these issues with a library tool and with a descriptive-analytical method.Using the available data, property can be divided into1-identical 2- benefit 3-potential benefit 4-imaginary benefit and assumed the properties that are in the property of individuals in four forms:1- existing,2- potentially existing; in the view of actual custom, 3- potentially existing; and in the view of extinct custom,4- extinct.Non-profit or the same profit in the sense of fictitious benefit of property is not assumed and therefore, can't be claimed. On the other hand, loss of potential benefit and benefit, in the case of existing potential benefit, in the case of extinct custom in terms of non-validity of property, Does not create a guarantee, and in the case of existing potential benefit (in the view of actual custom), in the sense that custom's property applies to the guarantee. Note2:Article 14 of the Code of Criminal Procedure seeks to express the possibility of losing the existing potential benefit and in the view of actual custom, and mentioning the loss as a means of guarantee is included in the prevailing case.

Although the principle necessarily is that the legal subjects´ assets to be protected; but today, we see that due to different reasons some gap intervenes between an owner and their assets. Examples for this issue are usurpation and also delivery by an invalid contract. There is no doubt about the requirement of recovering or substituting a property usurped or delivered by an invalid contract. Also, there is little doubt about the guarantee for the received benefits. But, regarding the fact that whether it is feasible for the unused benefits to be realized or not, we see a diversity of comments, i.e., we see that the law falls silent about these issues, and there is a diversity of jurisprudential rules along with lack of comprehensiveness of subjects, therefore, the necessity of the present research becomes justified. Thus, by descriptive-analytical methods, the present research tried to review and analyze the jurisprudents´ and lawyers´ positions regarding realization of unused benefits claims in an invalid contract. The results showed that the issue in Islamic jurisprudence has been a disputed issue since the past, although, by adducing evidences such as the rule of presumption of possession, consensus, and rule of equality of rules received for an invalid contract with usurped institution, accepting the rule of liability for unused benefits in an invalid contract seems to be reasonable; moreover, from the legal perspective, although civil code provides no expressed rule on unused benefits in invalid contracts, by correct interpretation of the available rules, it can be ruled for liability for unused benefits.

In the term of jurisprudence and jurisprudence of Iran, individuals have the ability to seize property if they have permission to do so; Like the owner and the lawyer. Therefore, if the domination of individuals is initially accompanied by permission, but then the owner wants to remove the domination, but this domination is not lifted in possession, "in the rule of usurpation" has been achieved. Accordingly, jurists and jurists have introduced cases in cases of usurpation as the beginning of legal and legitimate domination but the continuation of which is against the right. Moreover, if the domination of the right is not done by force and oppression and the person in charge is ignorant of his unworthiness, no real or genuine usurpation has taken place; Therefore, in such cases, they say: In the ruling of usurpation, it is similar to usurpation or usurpation of a ruling. The appearance of the second clause of Article 308 of the Civil Code, in order for the first clause to be valid, requires a difference in meaning and conformity in the rulings; However, it is observed that some instances of usurpation, especially in government titles, have a criminal and punitive description, while "in the verdict of usurpation" in some instances, such as a corrupt bond, do not have a criminal description. In the sense that usurpation and the ruling on usurpation, in addition to contrasting in concept, "in the rule of usurpation" in jurisprudence and Iranian law is irrelevant.

"Reversion of the patient's prior permission" is one of the important issues in medical jurisprudence, which unfortunately has not had its proper place in jurisprudential studies and today has created a gap in the relationship between patients and doctors. With the assumption of proving or denying the doctor's responsibility, by not refusing treatment during the patient's reversion of the prior permission, and by examining Article 308 of Iranian Penal Code, considering ownership as human domination over the organs of the body and taking possession of the patient's property (body) through dominance of the doctor in treatment, the responsibility of the doctor will be clarified. This viewpoint, although seems strong, but it cannot be correct. Doctors have considered the reasons for avoiding self-harm and the prohibition of suggestion of death, the principle of Dar' and the doctor's moral responsibility for avoidance of reversion of the patient after the initial permission. In contrast, patients believe in the situational and obligatory responsibility of the doctor by arguing for self-domination, corruption of permission in case of patient reversion, and Istishab (an Islamic term used in the jurisprudence to denote the principle of the presumption of continuity). The researcher seeks to resolve the conflicts by compensating for patient's damage by the government, through using a descriptive-analytical method and accepting the responsibility of physicians in case of non-refusal of treatment despite the reversion of the patient's prior permission in unnecessary cases and believing in non-reversion of the patient's treatment permission.

Financial disputes are among the problems of the country and it takes a lot of time for the judiciary to settle them. The lack of rules to resolve disputes is a problem that judges complain about. For example, a person has ignorantly seized another's property and spent a lot of money on it. In these cases, the renowned majority of the jurists believe that the possessor is obliged to return the other's property to the owner if requested. This fatwa is the focal point of many rulings of the Shari’a courts in order to destroy the appropriated buildings and properties. This study, after examining the reasons presented by the proponents and the opponents, came to the conclusion that if there is a customary excuse, the owner does not have the right to demand giving back the property. He can choose between demanding an exchange or waiting for the excuse to disappear and receiving the original property, and by receiving a substitute, he prompts the delictual exchange of property between the two parties.

According to Article 308 of the Civil Code, "usurpation is the domination of the rights of others, as aggression and proving iodine on property without permission is also" in the rule of usurpation. " The reason for calling such seizures "in the rule of usurpation" is because, firstly: the elements that exist for usurpation are not complete here; Second: The nature and meaning of the following article 308 BC is not the same as the beginning of its article; Third: The legislator has asked to clarify the sentence of Article 308 below it. In fact, the two issues are fundamentally different and only have one thing in common. Therefore, we call the latter in the first sentence. This view, although it seems strong, is not comprehensive and obstructive. Considering that some instances of usurpation, especially in government titles, have criminal descriptions and punishments, but "in the sentence of usurpation" in some instances, The importance and necessity of the article is due to the fact that the differences between the ruling on usurpation and the ruling on usurpation have caused differences of opinion between jurists and jurists, expanding the scope of examples of "seizures under the ruling of usurpation" and differentiating in judicial proceedings. As a result, it can be stated that the establishment of the institution "in the sentence of usurpation" of Article 308 BC is not relevant in Iranian jurisprudence and law.

The articles on "usurpation" and "on the rule of usurpation" are among the articles of jurisprudential and legal planners. The apparent consideration of "usurping possessions" with "in the rule of usurpation" indicates the difference between the concept and the conformity of the rulings;However, it is obvious that some instances of usurpation, with emphasis on the jurisprudential rule of "al-usurpation and taking away the state of affairs", especially in government titles (Article 555 of the Penal Code) have a criminal and punitive description, if "in the ruling of usurpation" Some cases, such as being bound by a corrupt contract (Article 366 BC), do not have a criminal description; Conversely, refusing to refuse a trust to the owner (in the ruling of usurpation, Article 674 of the Penal Code) has a criminal description,but the usurpation of personal property has no criminal description.Therefore, by explaining the conflicts, it can not be said that the latter is in the first sentence, but they are institutions with conflicting concepts and sentences. On the other hand, the theory of "in the sentence of usurpation", although it seems strong, is not comprehensive and can not be a correct theory. As a result, it can be stated that the establishment of the institution "as a usurpation" is not relevant in Iranian jurisprudence and law. The researcher seeks to eliminate the heterogeneity in concept and multiplicity of examples by descriptive-analytical method of finding a solution and establishing the institution of "recourse to previous clearance seizures", which is a new institution. Provide strong through follow-up suggestions. 

Respect for property is one of the legal rules of law, and unlawful domination or unjust harm will render the offender liable. The intentional look and the importance of safeguarding the financial rights of individuals in the community and ensuring their rights in this area has led the legislator to adopt rigorous policies in the field, one of which is the crystallization of the rule of crystallization. Has found. As to the validity of this rule (relative to the ignorant or ignorant ruler), at least two competing currents of absolutism can be deduced from Imamiyah, Sunni, and Iranian law: In one sense, this rule is completely invalid and, with the new principles of civil liability The conflict is obvious. On the other hand, the validity of this rule is a matter of jurisprudence and law and its social necessities are backed. This descriptive-analytical study shows that in analyzing this rule one should choose the middle way and based on the presence or absence of a good intent element in the unauthorized occupant, a proper and proper conduit for the flow of the rule. The phenomena in which Sunni jurisprudence has been traced back to it have referred to the judgmental

Theory of severe encounter with the usurper causes the rules of the usurped institution to be considered strict, while in other sources there is no such civil liability. This attitude and the lack of need for harm and causation, has caused most lawyers to analyze the rules governing this institution apart from the general rules of civil liability. In this article, an attempt has been made to invalidate the fegh attitude and pay attention to the structure of the civil law, and to prove the impossibility of this separation. It seems that the difference between dealing with the usurper and other sources of civil liability is not due to a difference in the nature or rules of this institution, but to an imperfect view of the concept of financial guarantee in jurisprudence. Guarantee in jurisprudence means creating an obligation against another, the guarantee of its implementation is crystallized in three longitudinal forms of equal return, retribution and payment of price. In law, however, the concept of civil liability, which is equivalent to the term guarantee, is merely narrow to the third form, the obligation to pay damages. This self-made constraint in the concept has led to the impossibility of applying the rules and pillars of the usurpation institution to the general pillars of the guarantee and its severity

Imprisonment in cyberspace is one of the most important events of this age. In many cases, the information, scientific, educational, and financial information of individuals is detained in cyberspace in such a way that detention prevents owners of the work from using their information, which raises the question of whether detention is a Allow virtual space? If not, what is its Imperative rules and status? Does imprisonment, in all cases, result in sanctity and guarantees? Imprisonment in cyberspace sometimes results in sanction, but in some cases only a warrant or only a sanction and the necessity of removing it, although there may be instances of neither sanction nor warrant. In this research, some of the issues which are discussed are reasons such as the wisdom to seize the property of others without the consent of the vicar, prohibition of consuming property wrongfully, the rule of “ala al-yad” and the rule of sanctity related to dignity, guarantee and ignorance, negation of warranties reasons on the permissible assumption.