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

The terms "guarantor" and "guarantee" are among the words that have different meanings in different fields of law. In civil law, the guarantor is obliged to summon the guarantor. In administrative law, the guarantor means a superior government official, who is unable to perform his duties for a valid reason. in welfare regulations; The meaning of sponsorship is that a person is responsible for the maintenance, guardianship or payment of another person's living expenses. In this research, which was carried out using a descriptive-analytical method; The articles of the direct taxes law where the term "under the responsibility" is used have been studied. While the mentioned interpretation is vague, it is also subject to investigation from other dimensions. In Note (1) of Article (53) of the Civil Code, it is not clear who can be "under takaful". Article 137 also does not specify the criteria and rules for suretyship, and it is not clear in what way a person is "under the responsibility" of another person. In this article, the priority of giving to vertical relatives has not been considered.

Banks and other credit institutions can face crises during their operations. The institution of temporary administration or conservatorship is one of the methods of restructuring banks and other credit institutions in times of crisis. The purpose of this study is to identify, legal description and explain the territory of temporary administration. Finally, while defining, legalizing and explaining the scope of this institution, we reached the following conclusions First, in the event of several circumstances, such as the suspension of a bank or credit institution, the regulator, such as the central bank, either directly takes over the management of the bank or the credit institution or delegates it to another person. Secondly, temporary administration is basically a kind of imposed and compulsory agreement arising from the law and public order. Thirdly, not only with banks, it is possible to implement the conservatorship for other credit institutions, such as credit cooperatives, leasing companies, exchange offices, Gharz al-Hasna funds and even insurance companies, Rather, the scope of the temporary administration is not limited to the management of deposits by the guarantor bank or credit institution, and for various reasons, has a wider scope, and the comprehensive administration covers all property and all matters. This analytical view of the issue can provide approaches to the legislature and the courts in the discussion of the temporary administration of a credit institution by another credit institution and fill its gaps in the Iranian banking legal system.

Criminal security agreements are temporary and numerical agreements; They are temporary because they restrict freedom until the outcome of the trial is determined. Preventing the violation of the rights of the litigants is eliminated by eliminating the conditions for issuing the contract. According to this law, it is supposed to provide different types, including: temporary detention, bail, bail, commitment in this article to the jurisprudential analysis of accepting bail, according to which one person (guardian) against the other party (guaranteed), the presence of a third party (Guaranteed) was paid, and through the collection of libraries it was concluded that if it is possible to guarantee the rights of the victim in other ways, it is an obstacle to the issuance of bail and acceptance of the property introduced by the guarantor is subject to the conditions and facilities of the court for acceptance. It is. The amount of bail and bail should not be less than the damage to the victim in any case.Keywords: surety, bail, defendant.

The guarantor is obliged to recall the debtor to the creditor under the surety contract and in case of default of the obligation, according to the law, it must pay the debtor debt or the amount of bail as compensation for noncompliance obligation. The basic problem that this research has addressed with a descriptive and analytical method is what kind of obligation the guarantor's obligation is, and which persons has the capacity to enter into a guaranty contract.By examining the opinions of jurists and lawyers, it was determined that the guarantor's obligation to recall the obligee is a non-financial obligation, but because this obligation also has financial effects, the guarantor must be adult, wise and mature, and because the surety contract is harmful, the minor and the non-mature cannot enter into this contract either in person or through a guardian or mandatory. Another issue that is raised here is whether, in case where after concluding the guaranty, a guarantor who has the capacity faces insanity, foolishness, coma or bankruptcy, the guaranty contract will be still valid, or the contract of surety will be destroyed due to the occurrence of these cases. By looking into the books of jurists and legal authors, it is clearthat although surety is a binding contract, because the guarantor's commitment depends on him, the surety contract will be dissolved if the guarantor suffers from permanent insanity after the contract and before the recall. Therefore, the fulfillment of the obligation cannot be requested from the heir or the agent of the guarantor, and the debt or the amount of bail cannot be received from the property of the guarantor. The court must instead ask the debtor to introduce a new guarantor. In the assumption of periodical insanity, although the contract of surety remains, it is not possible for the guarantor to perform the obligation during the period of insanity, as this causes loss to the creditor. Therefore, the court should ask debtor to introduce a new guarantor. In case of the guarantor's foolishness, because legally and commonly, the fool has the ability to fulfill the obligation and present the guarantor, in case of breach of the covenant, he is obliged to pay the safe pledge. In describing the conditions of the guarantor, the Imami jurists, in addition to maturity, wisdom and growth, consider the absence of bankruptcy as a condition and state that if the guarantor is not able to summon the debtor, he must take care of the religion, and because a bankrupt person is prohibited from seizing his property, it is not possible to enter into suretyship unless the creditors give him permission to do so. In Article 221 of the Criminal Procedure Law, the condition of the guarantor's solvency is stated and, therefore, if a person is bankrupt, his guarantee should not be accepted, However, if the judge accepts the guaranty of the bankrupt regardless of the insolvency, the guaranty contract is valid. Because according to Article 418 of the Commercial Law, the bankrupt is prohibited from taking possession of his financial affairs after the issuance of the bankruptcy award. And since the surety contract is a non-financial contract, the bankrupt has the ability and competence to conclude it. However, if the guarantor does not present the debtor on the due date, the court did not have the right to collect the amount of the surety from the property of the guarantor without the permission of the creditors. And in the case of receiving the amount of bail, according to paragraph 2 of Article 423 of the Commercial Law, such receipt is invalid and the amount of bail must be returned to the receiver. Therefore, it is not possible to pay the debt due to surety until the end of bankruptcy. In case of bankruptcy of the guarantor after concluding the surety, the surety contract is still valid and if the guarantor refuses to summon the debtor, the creditor must enter the creditors of the bankrupt guarantor to collect the amount of bail. In the assumption that the guarantor falls into a coma after concluding the contract due to the lack of will and intention during the coma, it is not possible to ask him to summon debtor. Therefore, according to Article 234 of the Criminal Procedure Law, the court can reject the surety contract and ask the debtor to introduce a new guarantor. However, in case of brain death, the guarantor is assumed to be dead, the surety contract is terminated and the debtor must introduce a new guarantor according to the law.

One of the orders can be granted by the judicial authority for access to the accused party and the possibility of compensating the injured party is the order to "obtain a guarantor by determining the amount of bail". A legal person can participate in all legal activities and consequently have civil and criminal liability. According to Article 221 of the Criminal Procedure code, a legal person can also stand bailing. However, the the letter of the sentence in the mentioned note causes legal ambiguity and may conflict with some basic laws. The present study examines the conditions and limitations of legal person's standing bail by descriptive- analytical method and data collection by library method. The result of the research is that in the case of standing bail by a legal entity, a distinction should be made. The standing bail of a state legal person is generally against legal rules and unjustifiable. Bail is acceptable by a non- governmental legal entity with two conditions: the bail of the accused party in the interests of the legal entity and with the decision of the competent authority at the level of management of the legal entity. standing bail by the endowment, depending on its legal personality, is subject to compliance with the terms of the endowment letter or the agreement of the endowed against the special endowment.

The guidance of the ignorant involves a set of actions such as teaching, informing and warning, because sometimes the trainee has no knowledge of the divine injunction, in which case, if he is informed, he will come to know the injunction. Sometimes the trainee does not know, and knowledge is not achieved by making an announcement only; rather he needs education. Sometimes the trainee knows the ruling and the subject-matter, but he is unmindful or oblivious in which case he is reminded and it is only then that he remembers his duty and obligation. Guiding the ignorant as a training measure is obligatory in some cases and recommended in others, but the necessity guiding is contingent largely upon the probability of effect and no substantial harm to the mentor and educator. This article examines the jurisprudential point of view in this regard using inferential and analytical methods. In short, to highlight the most important results of the research at hand, it is necessary to state that in the views of the jurists, the necessity of guiding the ignorant to the hukm (injunction) depends on a number of conditions including the person being a duty-bound, necessity of the duty, and the ruling being of daily use to the duty-bound. As for guiding the ignorant to the subject, the jurists differ in their opinion in this regard. Some believe it is obligatory to guide the ignorant (al-ʿAllāma al-Ḥillī, 1401: 48) and others believe in the non-necessity of guiding such a person (al-ʿᾹmīlī, 1418: 2/579). Generally speaking, guiding the ignorant is preferable in the area of non-mandatory rulings and those rulings which are not of daily application.

Bail (Kafala) is an irrevocable contract. Although under the principles applicable to irrevocable contracts, stipulation of option in these contracts is permitted, the legislator has not declared whether such stipulation is valid or void. Therefore, the main question remains what is the remedy of stipulation of option in bail contract? Different opinions have been suggested by Islamic jurists and it is necessary to determine the valid opinion and accordingly, the legal status through comparative study and criticizing the suggested opinions. The purpose of the present paper is to determine whether stipulation of option in bail contract is valid or void according to valid fatawi (verdicts) through descriptive method and destruction of valid jurisprudence sources and library tools. As the most important result of this research we can say that stipulation of option in bail contract is valid and in addition to the stipulation, the contract is valid as well. Therefore, the legislator is recommended to enact an article and declare the validity of stipulation of option in bail contract and end the current controversies.

The bank as a main aspect of Society’s Economic guarantee the Demands of customer by publishing the Bank guaranty. Bank guaranty is a unilateral obligation that cussed by request of the customers that every time that customer needs to money bank pay for that. Majority of the contemporary jurisprudents are agreeing whit this guaranty but it’s definition makes difference and problem. This article wants to study about jurisprudential subject of this bank guaranty in this Deposit Guarantee, Bail, unilateral agreement, guaranty in favour of third parties, impawn in favour of third parties and Independent contracts. Finally, we accept the “Independent contracts” method as a good one and but we prefer the “guaranty in favour of third parties” as a better one for justifying that bank guarantees are recent demands and we will answer to Criticisms that are related to this method. Our method in this article is analytical-descriptive and as our source we use from books, articles, websites and some database.

The aim of bail in a civil action is to ensure the presence of the defendant at trial. In criminal cases, bail means to ask from the accused or the offender to designate someone who guarantees his appearance at trial or his presence for implementation of the punishment. Acording to some Islamic narrations (ahadith) it is prohibited to stand bail in criminal cases. These narrations have often been construed as referring to had in its idiomatic sense, i.e. prescribed punishment as opposed to discretionary punishment.
Through analyzing the jurisprudential evidences of the decree, the author concludes that first, due to ambiguity of the evidences it is hard to consider such a decree among the jurisprudential rules. Secondly, the prohibition of bail is not limited to had. Some kinds of bails like those that undermine the certainty of the punishment, or imply unjustified delay in the execution of the punishment, or require unnecessary obligations for the offenders or the accused are not allowed, be the punishment had or ta’zir. Thirdly, obtaining some expediency or avoiding an evil may make the bail acceptable or even necessary. Accordingly, the decrees of bail are not a cause for differentiation between had and ta’zir. This article also implicitly compares bail in civil and criminal cases.

Bailsman is commitment to summon party .This commitment on suspect of some, cause dominate on the third-party .For this reason, some have questioned the validity of contract, other groups have attempted to justify the validity of the contract with Using of joint and several liability and advocacy. In Sunni jurisprudence, the first tool used and in Shiie, the second tool. But the truth is that this contract is valid and does not conflict with the rights of third party. But conversely, retains his freedom.
In this paper, contract of bail was regarded as Contracts for the Benefit of Third Parties that creates an advantage for the party without the need for acceptance.

To establish natural guarantee, the Article 745 of Civil Code includes a rule which is the same as included in the Article 740 concerning contractual guarantee, i.e. responsibility of guarantor (kafil) to produce the guaranteed (makful) or to pay his debt. In the Article 434 of Penal Code, however, the legislator has mentioned ‘obligation to deliver’, ‘imprisonment of he who has helped the escapee to escape’, and finally ‘payment of mulct. Here, the above rule is discussed in terms of its foundations and scope. Concerning scope, what is discussed includes ‘training of escape’, ‘intervention [in favor of] incapacitated’, ‘good intention’ or ‘belief in non-indebtedness’. When he who has helped the debtor to escape is forced to pay the debt, is he entitled to refer to the debtor? What is the basis of natural guarantee? Because there are various foundations such as the rule of ‘wasting’, the rule of ‘causation’, the rule of ‘no harm’, the rule of ‘responsibility about others’ properties which one has in his hands’, the scope of natural guarantee will vary. According to some foundations, the article covers responsibility of the incapacitated and his trainer as well; according to some other foundations, however, they cannot be taken as being responsible. On the other hand, that the debtor has escaped cannot be taken as a permission to repay the debt or to refer [to the debtor].

Abstract:The death, dismissal, resignation, absence or sickness exceeding a period of two months, lasting the period or other reasons like these are the factors meeting of the presidency's interim in Iran. The death is according to the French Constitution an example of the vacancy. The dismissal of the President is possible with the political and judicial mechanisms. The dismissal of the President in France is possible only by the Parliament in the framework of the High Court. The resignation of the President in Iran requires the acceptance of the Leader, but the President in France may resign without the need to the acceptance of special institution or authority. The President absence in Iran is different with the vacancy in France. The absence or sickness of the President for a period of two months is an example of hindrance in France. The Iranian Constitution legislator with determining “other reasons like these” has placed all cases of vacancy or decisive hindrance in the group of factors meeting of presidency's interim.