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

One of the controversial challenges among the jurists is the possibility of the flow of the right of shafea in the sale of cucumbers. Many Imami jurists have accepted this issue absolutely, but some only accept it where the customer has cucumbers; they accept Sunni jurists have also considered the right to intercede if the client has a choice, although some have made it dependent on the fate of the marriage. Therefore, many views have been expressed in the conflict between the actions of the cucumber and the right of intercession. According to Article 814 of the Civil Law, the right of intercession is accepted in the sale of cucumbers; Whereas, according to articles 33 and 34 of the registration law, the right of intercession is not established in the sale of cucumbers, and the flow of the right of intercession in the sale of cucumbers is hindered.Therefore, in this research, different viewpoints and sayings in Islamic jurisprudence and subject law were presented and evaluated. With analytical, critical and ijtihad methods, it was found that there is a possibility of the right of intercession in the sale of cucumbers; with this detail that in the case of applying the option before obtaining the intercession; The right of intercession is lost; However, obtaining intercession before applying the cucumber depends on determining the fate of the cucumber.

Although the Civil Code deals with the sale of common property in only one article, in a concise form from which no general rule can be deduced, in the two laws of civil affairs and the division and sale of common property, the legislature preceded The revolution has explained the rules of the sale of common property in detail. On this basis, some believe that recent laws have removed the conciseness of civil law on the subject. The jurisprudence is of the same opinion and now assigns lawsuits related to the sale of communal property by those two laws. But the ambiguity started when the jurists of the Guardian Council, after consulting them, applied some articles of the law and the division and sale of common property and related regulations in the assumption that not all partners are satisfied with the division, is against the Sharia and Declared invalid. Controversy in that theory shows that the jurists of the Guardian Council, contrary to the judicial procedure and what is stated in those two laws, to legislate the sale of common property, do not consider it sufficient to justify the indivisibility of property, but in their opinion, In addition to the above condition, it is also necessary to establish the two elements of loss and refusal of the partners.

The role and impact of property as a solid legal entity on criminal litigation becomes more obvious and its analysis necessary, changing the course and fate of a criminal lawsuit due to the acquisition or non-acquisition of ownership of the perpetrator or the victim on the property of the subject of the crime.

This research is of descriptive-analytical type and the author has conducted the research by library method and preparing receipts and referring to various laws, regulations and articles.

The research findings indicate the significant role of ownership in the realization of the subject of criminal litigation and also its design.

In the present study, fidelity in speech quoting has been considered by the authors as a moral requirement.

In case of non-possession of the property of the innocent person on the property of the subject of the crime, the realization of the criminal act and the subject of the criminal lawsuit will be eliminated. The effect of ownership on criminal claims related to confiscated property is relative, and in the case of common property, with the exception of destruction and theft subject to hadd, it leads to the annulment of a criminal act and the filing of criminal lawsuits.

Joint ownership means the ownership of multiple persons in one property. According to Article 576 of the Civil Code, the administration of communal property is initially subject to the terms of the agreement between the partners, otherwise the majority opinion cannot be imposed on the minority. But does the management of the common parts of the apartment, like the common property, require the intervention of all the owners, and in this respect, is there a difference between the possession of the common property and the common parts of the apartment? The law of ownership of apartments does not require the permission of all partners and the decision of the owners of more than half of the relative area of the private parts is mandatory for other occupants of the apartment. Or the permission of each of the common partners is not possible; Moreover, in apartments, due to its special condition and the growing growth of apartment construction, any decision to materially occupy and consequently conclude a contract in order to take the necessary measures for the optimal use and maintenance of the building, in common areas subject to the general rules of common property management in Article 582 BC. It is not and there is no need for the permission of all partners. In practice, the management of apartments is based on principles that come from the management of commercial companies, especially joint stock companies due to its special conditions. This privilege should be applied in the management of other common property that has multiple partners and a majority is expected and necessary changes in law. To occur.

Unlike immaterial possessions, the material possessions of the partner, even to the extent of his portion, is subject to the consent of the other partners. So There is a debate about the Endowment on the joint property; because, for its formation, in addition to the agreement, the delivery is also essential. In Islamic religious jurisprudence, regarding the Endowment of the Joint property, some differentiate between "divisible and indivisible", as well as "movable and immovable" property, and according to the type of property, they judge the status of the endowment contract and the quality of delivery of joint property. In contrast, there is an indivisible view that it considers the endowment on the joint property to be valid in any case and do not make any distinction between the joint properties for the delivery.There is no specific provision in Iranian law in this regard, and According to other real contracts and jurisprudential opinions, jurists declare the Endowment of the Joint property to be correct and only express various opinions on the quality of delivery of joint property. According to the survey, it seems that if we consider that the immaterial domination by beneficiary of an endowment is sufficient for‍ taking delivery; delivery is an immaterial possession. so the contract of endowment is valid, from one of the party.

Propagation is one of the things imaginable about property. In this case, instead of the ownership of the property in general, it belongs to one person, two or more persons own the property. In the case of distribution, the ownership of the partners is in all components, so that each part of the property that is considered is shared by all partners, and no partner can have any exclusive claim against the part of the property. The question is, does one of the partners have the right to rent the property to another? There are two general points in this regard and it is accepted in Iran's law following the famous jurisprudence of the Imams. There is also a controversy in Egyptian law, but in the end, the rights of this country, with a decree, have been passed to the acceptance of the theory of the rentier rentals Is. However, both in the doctrine and in the judicial system of the country, there are sometimes opposing views on the inaccuracy of mortgage lease. In the present article, the concept of hire-rent, the basics of admission, has been investigated.

Dissemination in common ownership and property division is subject to the rules and regulations which the legislature has observed in order to ensure the health of people's financial and transactional relations. Dissemination in ownership occurs in cases without the individuals’ will and sometimes with their motivation.In this investigation, all articles published up to the winter 2021 in Persian in distribution in ownership and division of common property were reviewed. These articles by searching databases, Law Quarterly, Iranian Scientific Journal, sid.ir, Jurisprudence and Law Quarterly and Civilica Publications, Private Law Research Quarterly, using keywords such as division, common property, common ownership, division ownership have been obtained. It has also been derived from prominent scientific journals from the above-mentioned articles and websites.Due to the common property, object or benefit or religion or similar or trustee property, the legislator has in the first place permitted the partners to make the division as they wish by consensus and agreement between them and if no agreement is reached, the split applicant can want the partners’ obligations to conduct division.Based on the research and division law and sale of common property approved in 1978, the competent authority to request the division of registered properties is the local registration office in which the property is located..

The nature of division was discussed in jurisprudence and law books, but less was said about the nature of partition. Most of the writers in the study of division have also dealt with its nature and because they consider separation as one of the partitions of division, they have found themselves without the need to express the nature of partition. Recognizing the nature of partition; depending on whether the transaction (sale, exchange, interchange), or discrimination of the right or contract, the effects are different. So, is there a right of pre-emption and options in partition or not? Is it possible to rescind bilaterally (rescission, cancellation of a contract by mutual consent) in partition or not? Will the partition have an effect on the necessity or non-necessity of registering the division letter? The answer to these cases is to identify the nature of partition. In this article, analytically-descriptively, by studying the opinions of jurists (lawyers) and Imami jurists, we will say that the nature of partition into the theory of being a contract in the statute is somewhat more popular among jurists. However, being a contract does not necessarily mean transaction and sale, and there are no special rules of sale, including the right of pre-emption and the options specific to the sale. Naturally, due to the same contractual nature of partition, the possibility of rescission (rescind bilaterally, cancellation of a contract by mutual consent) and applying other options can be imagined and realized in separation.

Joint property, is a property that two or more person jointly own eachcomponent. The partner material possessions, even to the extent of hisportion, are subject to permission of others and without it create civilliability. But, all partner immaterial possessions are valid in relation to hisportion and does not require the permission of others. There is, however,some debate over the contract of gift; because it is necessary for itsformation, besides the agreement (as immaterial possession), the delivery (asmaterial possession).There are two general views on this topic in jurisprudence and Iranianlaw. The first view distinguishes between “divisible and indivisible” and also“immovable and immovable” property and on the basis of this distinction,rules on the validity of gift on the joint property. Against this view, there isanother belief that it holds that the gift on the joint property to be valid,without making any distinction between the joint properties. There are, ofcourse, differences on the quality of joint property delivery. Some insist onNecessary permission of partners, some believe that the delivery is fulfilledby eviction the partner, and finally, some with outline the concept of theimmaterial delivery, consider the possibility of donee dominance over thedonated property sufficient. In Iranian law there is no specific provision incivil law, however, it seems, citing the sufficiency of immaterial dominationfor the realization of delivery and not needing the material delivery, validityof gift on the joint property to be acceptable.

The civil code has expressed the conditions of a property which can be the subject of mortgage but the possibility of the mortgage of a shared property has not been mentioned. Regarding the silence of the civil code about the issue, it can be inferred that a shared property can be the subject of mortgage. However, this issue is the subject of conflict among experts. Hanafi jurisprudents believe that mortgage of a shared property is impossible without the consent of other share holders but jurisprudents from other jurisprudential schools have different ideas about the necessity of asking for permission of other share holders in pre-empt situation. Among these different ideas, the idea of Shi‘a jurisprudents is that it is necessary to ask the other share holders for permission in pre-empt situation. This idea is generally accepted in the present legal system as well. The reason is that although in reality, the shares of each share holder cannot be separated, but theoretically they are separable and independent. Therefore, mortgage on a joint property is possible but in pre-empt situation it is not possible without the consent of other owners, since it interferes with their rights. So, parties’ agreement on mortgage of a joint property is correct while in pre-empt situation it needs other owners consent or otherwise it would be subject to liability and the accuracy of such contract is under question too. Moreover, and on the contrary with what it has been said in Fiqh, it seems that it would not be right to make other owners give their consent. Therefore, the only solution is to divide the property. Also, if there is no agreement about the person who is going to deliver the property, the court would be the right person for it.

In accordance with Article 30 of the Civil Code, any owner may seize any property in his property. The article, which is based on the rule of law, is not absolute. The legislator has limited it to maintaining order and justice, therefore, the following article stipulates that "unless the possessions that the law exempts", social justice and the necessity of preventing a conflict between people require that no one, by taking possession of his own property, Unless harmful to seizure, as much as is customary and in order to eliminate harm or harm. According to the basic principle that no one has the right to seize other property, with the permission and permission of the owner. The primary obligation to seize and hold on the property is in addition to the removal of the seizure of the owner against the owner and, in the event of the loss or entry of the damage or defect, must be liable to be liable. In other words, the landlord must be compensated. The limitation of collective ownership prevents the owner from exploiting and seizing it, and makes his relation to rubbing subject to certain principles, in which the action outside of these principles lacks credibility and sometimes warrants and liability. The purpose of the "Associate Asset Acquisition" is to explore the extent to which the aforementioned principles of ownership are applicable and with what bottlenecks.

Division that is one the ways of dissolution of legal partnership is separation of shares of each party in the joint property by compromise or court order. Among the ways of dissolution of legal partnership, division of the company’s property is very important, since there are many issues about it left unsaid in the civil code. One of these issues is the nature of division which is left vague and has led to different jurisprudential and legal ideas about it. Certainly offering a coherent theory and determining the legal nature of division has many results including entailing the consequences of the accepted nature and refusal of the consequences of other similar legal institutions. The present paper tries to clear the ambiguities and answer these questions that what is the nature of division of the properties of company? Whether it is a bilateral or unilateral contract? Whether rescission or defect option is possible if a defect occurs in division? To achieve the above mentioned aims, at first the jurisprudential and legal ideas are discussed and eventually the idea that conforms to the legal system is offered.

In this paper the probability of the commission of offence while using a shared property will be discussed. Diverse ideas and opinions have been presented concerning this issue which can be divided into two groups, in favor and against the issue, indicating the significance of it. There are those who believe that because the property which is the subject of the offence belongs to someone else and offender is not the sole owner, no offence has been committed. Moreover they believe that the offender has the ownership right in every part of the shared property and the property cannot be referred to as the property of others. Consequently, there is no probability of the commission of offence. On the other hand, there are those who believe that it is likely to prove the commission of offence by using a shared property because the partner is able to benefit or suffer from the property. To this effect, the writer of this paper has concluded that the commission of offence is likely by using a shared property. However, due to the principle of legality of crime and punishment and abridge interpretation in favor of the accused person, the judge shall not be allowed to inflict penalty upon the offender of the offence committed by using a shared property other than serious theft and destruction.

Since a long time ago, as a result of the extension of social relationships and the increase in population and compression of residential environments and business entities, people’s partnership in movable and immovable properties has been extended.Phenomena such as urbanization, the establishment of joint stock companies and businesses in Commercial and administrative complexes has led to an inevitable partnership of the proprietors in many parts. Such dense and related environments, naturally, will cause the interference of the owners’ rights. The partnership of a person by distribution in every detail of a property may cause the formation of this conception for him that regarding his partnership in all parts of the joint property, his act cannot be mentioned as action against other’s property and he would be rightful to do any seizure in the whole property or do any action in order to take it from other partners.For this reason, recognizing the criminal liability of each of the partners to the joint property is of great importance. It would get more significant when we know that a large amount of criminal disputes in judicial authorities arise within the joint partners. There is a great deal of disagreements among jurists about specializing criminal liability for the partner in joint property. Studying such disagreements and providing solutions in every conceivable criminal subject related to joint property, is the topic of this study.