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

One of the most valuable concepts in today's world is to solve the concern of intellectual property in the real space and especially in the digital space. Because in order to solve the concern of intellectual property, it is necessary to offer up-to-date solutions on the platform of blockchain, so that in their form this space of intellectual property rights becomes a safe and secure area. In order to implement this, today non-fungible tokens are used to acquire the right of ownership of a real or digital asset under the title of a digital document. And blockchain, by creating NFT tokens that are created and moved on the blockchain of digital currencies, has made the artists of the world, including painters, architects, musicians, digital artists, graphic artists, animators and filmmakers, who are mainly created from works of art. They earned their own money. Or sometimes they gave away their intellectual property in order to earn money from works of art. They were always faced with the problem of copying works and the ineffectiveness of copyright laws, as well as the problem of selling fake works and mediation of works of art, to find a special solution. This research seeks to explain the solution to the concern of intellectual property in the real and digital space. Therefore, in this research, we seek to analyze the use of NFT tokens and its impact on intellectual property by taking inspiration from similar materials with a descriptive-analytical method. enactment of appropriate legislation, systematic foundation and creation of desire in governmental and non-governmental institutions to use non-proprietary tokens in further protection of intellectual property rights.

Objective guarantees are one of the important guarantees for fulfilling obligations in legal systems. Sometimes the guarantee is personal, and a person undertakes to pay the debtor's debt, and sometimes it is concrete, in such a way that a certain property becomes a guarantee for the payment of the debt. In personal deeds, due to factors such as default and bankruptcy of the guarantor, the right of the creditor is at risk. One of the reliable legal ways to guarantee the creditor's rights is to use concrete collateral. A surety bond or a surety bond is one of these sure methods. According to that, the guarantor, with the consent of the creditor, while assuming the debt, makes the payment of the debt from the property that belongs to him. In fact, there is a kind of private imprisonment for this property. In Iranian law, despite the guarantee contract and relatively detailed regulations, there are no regulations regarding the subject of the article, and the legal writers have not adequately covered all aspects of the subject.In the laws of Islamic countries, including Jordan, Egypt, this issue has been raised under the title of objective guarantee, and various debates have been raised regarding it. Considering the importance and applicability of the subject, this article has been dealt with in a comparative manner. The main question of this research is whether this type of legal institution is acceptable in Iran's legal system, and if the answer is yes, what are its nature and effects? In response to this question, with analytical and descriptive methods, we came to the conclusion that the nature of this contract is a combination of guarantee and mortgage, and its main and direct effects in the relationship between the guarantor and the creditor are the possibility of recourse by the creditor and the guarantor's obligation to pay the debtor's debt from the specified property. By paying the debt from the aforementioned property, the guarantor can refer to the debtor. When facing the creditor, the guarantor can refer to objections related to religion and what is not personal.

Iran’s legal system is highly influenced by Imāmī jurisprudence in many areas. Regarding civil responsibility, the rich capacity of jurisprudence related to principles of guaranteeing covers various types of common civil responsibilities, including contractual liability. The principle of Tasbīb (Causation) is the most fitting principle that can serve as the basis for the necessity of compensating damages resulting from contractual breach. The mechanisms of Article 221 of the Civil Code and some jurists’ endeavors to establish a separate system for contractual liability is subject to criticism. Utilizing jurisprudential capacities neutralizes any ground for separating the various types of liability, and eventually enables the possibility of referring to the Tasbīb Principle in contractual liability based on some jurisprudential views. Additionally, it necessitates the need for reconsidering existing rules and establishing a common system to replace the scattered and inconsistent laws regarding liability, such as some Articles in the Civil Code or the Law of Civil Liability 1399, some provisions of the Civil and Criminal Procedural Law, and the Islamic Penal Code.

According to the general rule of liability, a person is responsible for their own acts or acts committed under their instruction. Therefore, liability arising from the act of another person has exceptions and is contrary to the general rule. Another form of liability arising from the act of another person is known in common law as "vicarious liability," which is interpreted as proxy liability. In the civil liability sources of common law, the discussion of employer's liability for the actions of their employees has been addressed under the same title. This article, using a descriptive-analytical method, examines the latest theories on the foundations and conditions of this liability in Iran’s and England’s laws. According to Article 12 of the Iranian Civil Liability Law, employer's liability is based on the theory of fault and its specificity lies only in the fact that it arises from the act of another person. In contrast, in English law, this liability is considered distinctive from two perspectives: firstly, it is contrary to the principle of personal liability, and secondly, it falls within the framework of the theory of strict liability and is solely based on the element of harm.

Keeping the soul healthy has been one of the ancient goals of mankind along history, and its necessity has also been emphasized in religion. One of the ancient therapeutic methods approved by Shari'a is hijāma (cupping). In addition to encouraging cupping, some of its rulings have been stated in many traditions which jurists and hadith commentators disagree on their clarification in detail. Using a descriptive-analytical method, this article has investigated the position of cupping therapy and the quality of the cupping therapist (hājim)’s guarantee. In addition, it analyzed jurisprudential views in these two areas. To solve the problem of incapability of two opposed groups of narrations, in which some condemn cupping while others encourage it, it is concluded that the reason for the condemnation is the possibility of blood getting on the cloth and body of the cupping therapist and the health conditions of the past, so that, like other professions, it is basically permitted (mubāh). Regarding the hājim’s guarantee, if his mistake causes injury to life or limb, it is obligatory to pay the blood money (dīyi). If it is intentional, retribution (qisās) is the basic ruling, and in the case where it is not possible to match the retribution, or in case of the request of the mahjūm (person who was cupped) or his legal avenger of blood, the payment of blood money is obligatory.

The topic of this research is about legal-economic analysis of contractual securities. Contractual securities are the most appropriate tool against violation of contractual obligations by the other party. Consumers of goods and services seek appropriate securities. This seeking is based on modules of economic analysis like mentality, tools of preferences, maximization of appropriateness, game theory, and technical and skilled efficiency, which is an integral part of an economic agent in the market. Generally speaking, the existing securities in a contract are securities related to the time after execution of an obligation and related to the execution of a obligation. The former is more in the framework of performance bond of non-execution or delay in contractual obligation and or in the framework of third party’s securities. Also, securities of services or objects of sale are related to guarantees and warranties. In this research, sorts of securities in contracts are examined. In conclusion, from an economical and legal point of view, the more effective the will of oblige in the selection and determination of security and rule of will instead of the law, the more efficient the securities. Consequently, these securities are efficient, due to better-providing preferences. Moreover, product-oriented contracts, guarantees, and warranties based on game theory could fulfill cooperative games. The integration of all sorts of contractual securities is possible and necessary.

Jurisprudential rules form the basis of our country's civil law. Accordingly, In this paper, while studying the “al-Kharaj be al-zaman” rule using a descriptive-analytical method, its legitimacy is confirmed by ensuring that the issue of the narration is from a Massoum (AS) due to the existence of similar narratives to the rule, the practice of earlier jurisprudents and non-contradiction with jurisprudential principles. Because this narrative is damaged in the Shiite sources but is well-known in Sunni sources as a Fatwa reference. On the other hand, the difference between the latter and earlier jurisprudents views about the acceptance of a weak hadith clearly reveals the change in the criterion of a weak hadith for the earlier and latter jurisprudents. Because the earlier have considered the confidence in issuing hadith from a Massoum (AS) as the criterion of authenticity. The rule states that the profit is subordinate to the property of a commodity, and the guarantor of a commodity will be profited from the benefits. The concept of “Zaman” in the rule includes two different views. In this paper, while discussing both views, the importance of the aforementioned rule in the economic resilience and the role of taxation in providing economic security are addressed according to Imam Khomeini's governmental sight to the rule. Obviously, the emergence of the emerging issues necessitates the importance of achieving jurisprudential rules in the context of time and place.

A bank guarantee is one of the most effective bank documents without which it is not possible to fulfill the obligations of the parties or the lack of it makes the parties face risks. The most important characteristic of these documents is their independence from the basic contract which enables the beneficiary to have a definite and immediate payment from a competent guarantor in his country. The international exception to the aforementioned principle is fraud, which can prevent the claim and payment of the guarantee to its beneficiary. The question raised is what is the approach of international regulations regarding the issue of fraud? and what measures has the convention of independent guarantees and guaranteed letters of credit taken in this case? The rules and regulations of the International Chamber of Commerce have adopted a silent or near-silent approach on the issue of fraud. However, the aforementioned convention is the only document that has established regulations regarding the issue of fraud, which provides useful guidelines to the courts in this regard.

According to the general theory of obligations, the guarantees of the obligation remain with it in the transfer process through the transfer of the obligation to others. However, in Iran's legal system, the fate of guarantees after the transfer of the obligation is not clear. This is because the Iranian legislator, under the title of conversion of obligation in Article 292 of the Civil Code, has included phrases that seem to define the examples of transfer of obligation (transfer of debt and demand) and then in the next article, it has decreed the fall of guarantees in the conversion of obligation. This has become the source of disagreement among jurists and some believe that guarantees remain in absolute transfer of obligation, and some believe that it falls, and some have even generated the fall of guarantees to guarantee and remittance contracts as well. This study, while explaining the important problems in the interpretations of articles 292 and 293 of Civil Code, first explored the issue in detail from a jurisprudential point of view, and then presented a new interpretation of these two articles and made them refer to a certain contract known as "transformation of obligation" which is specific to Iran's legal system. Based on the jurisprudential history of the issue, it shows that the general rule in Imamiyah jurisprudence and the legal system of Iran is the remaining of guarantees in the transfer of the claimant, and their fall in the transfer of debt.

Guaranteeing the quality of the product is a commitment by the supplier or a third party to the presence of a desirable feature or features in the consumer product within a certain period of time for the consumer. Termination of the contract by one of the parties after the conclusion of the contract. Termination of the contract due to legal reasons or by the guarantor will terminate the legal relationship between the two parties and they will no longer have obligations and responsibilities towards each other. Termination of the contract in guaranteeing the quality of the goods as a guarantee of performance and compensation for the damage of the obligee seeks the necessary performance for the guarantor. In the European legal system and sometimes in the Imami fiqh and the Iranian legal system, the right to terminate the contract in guaranteeing the quality of goods due to factors such as basic non-conformity in partial goods, knowledge of the guarantor of non-fulfillment of the contract by the guarantor, delay of the guarantor in fulfilling his obligations, mistake of the guarantor Carelessness of the guarantor in the statements, fraud of the guarantor towards the guarantor, failure to see the goods by the guarantor, and failure of the supplier to guarantee the consumer. In case of realizing the right to terminate the contract for the guarantor, he must notify the other party of the termination within the legal and customary period. .

One of the effective factors in creating responsibility is cheating; This means that if someone deceives another or is deceived by someone, responsibility and guarantee are created for the deceiver. This type of liability, which is a guarantee resulting from deception, is called in legal terms the guarantee of pride, which is a kind of coercive guarantee and is called civil liability in law. Issues related to the guarantee of pride in jurisprudence are known as the rule of jurisprudence, the rule of pride. One of the types of pride is prying deals. In cases where the prying seller makes a material seizure of the transaction, the ruling on such seizure has not been examined in either Islamic law or Iranian law, especially when the original owner does not allow the usurped transaction, in which case the usurious seller's seizures must be Be an independent title and sentence; Because if we accept that if the owner approves the transaction, her material possessions are also valid due to its legal possessions.

The issue of financial seizure of Private limited companies is one of the important issues that in this article will be addressed.

Thise article is Analytical descriptive and the library method uses.

Ethical considerations: 

In this article, Originality of texts, honesty and trusteeship Has been complied with.

The competence and authority of the managers of Private limited companies, in accordance with the law and the articles of association of the company ,are determined. The authorization of directors to factors such as the subject matter and articles of association of the company, the authorization of general assemblies and commercial laws and regulations are limited. What is assigned to the directors is a trust and the directors are obliged to use this position only for the benefit of the shareholders in such a way that the interests of the company are provided in the best possible way. The limitation of directors in matters falling within the special competence of general assemblies, the invalidity of the legal actions of directors outside the subject of the company, the prohibition of obtaining facilities from the company and the prohibition of their competitive transactions with the company in order to prevent financial seizures of the company.

Illegal seizure of company property by the directors of Private limited companies is a violation of the limits of authority and duties and, as the case may be, has civil and criminal liability such as betrayal of trust.

One of the jurisprudential rules that has less been dealt with is the rule of "Al-Idn al- Shar'ei La Yunafi Al-Diman" which is effective in different chapters of Islamic jurisprudence and is considered as one of the Istiadi rules (rules that have been derived from religious rulings and principles). According to this rule, religious permission by itself not only does not prove the lack of guarantee, but also does not agree with the principle of proof of guarantee. However, it can provide the context for the introduction of arguments proving the guarantee and supporting it in proving this status ruling. This paper seeks to prove this rule; unlike those who practically or officially accepted the opposite rule, which is that the permission against guarantee. Verbal arguments, both Qur'anic and narrative, and non-verbal arguments, both rational and lifestyle, prove the rule. In addition to that, jurisprudential criteria have been enumerated according to which it is possible to distinguish the permissions against the guarantee from the permissions in favor of the guarantee in property, life, and actions. In carrying out the rule, there is a difference in the doubt of permitted guarantee. This rule is used to solve some novel problems.

According to Article 691 of the civil law, "dayn guarantees that have not yet been established are invalid." The jurists, following the jurists, tried to interpret them. Due to the establishment of dayn.they carefully tried to follow the word "cause" in addition to some jurists, in addition to its true meaning, that is, appropriate, so that the conventional tradition would be in accordance with the legal regulations. Although the existing custom and custom can be somewhat decisive, since this dispute is not resolved in jurisprudence and law, and the fegh is silent, according to Article 167 of the Constitution, the ruling must be determined on the basis of fegh standards. The results of the research, according to the rules and principles of legal jurisprudence, as well as the combination between the concept of M691 and M697, indicate that the guarantee of the future dayn of the researcher is considered correct and there is a balance between the guarantee of the future dayn and the actual existence.And insisting on the invalidation of the guarantee of the possible future dayn of the product, given that it has become a social necessity, causes the system to be disrupted.

According to Article 691 of the civil law, "dayn guarantees that have not yet been established are invalid." The jurists, following the jurists, tried to interpret them. Due to the establishment of dayn. they carefully tried to follow the word "cause" in addition to some jurists, in addition to its true meaning, that is, appropriate, so that the conventional tradition would be in accordance with the legal regulations. Although the existing custom and custom can be somewhat decisive, since this dispute is not resolved in jurisprudence and law, and the fegh is silent, according to Article 167 of the Constitution, the ruling must be determined on the basis of fegh standards. The results of the research, according to the rules and principles of legal jurisprudence, as well as the combination between the concept of M691 and M697, indicate that the guarantee of the future dayn of the researcher is considered correct and there is a balance between the guarantee of the future dayn and the actual existence.And insisting on the invalidation of the guarantee of the possible future dayn of the product, given that it has become a social necessity, causes the system to be disrupted.

Muzariba has been a very important type of contract much favored in usury free banking and has appeared in Iranian Usury Free Banking Act. The spirit dominating Islamic muzariba is sharing the transaction risk between the investor and the agency, a fact that has rendered the whole activity justice-based. Besides, some fiqh principles related to profit making prove the necessity of this kind of risk sharing to the extent that if neglected the whole financial contracts will be rendered void. The study is to seek how to adjust the principle of annulling the usurious sale to muzariba. According to this principle, in case the individual lacks guarantee in regard to his property, the ensuing profits do not belong to him. The results show the provision included in the contract denies guarantee for the bank as the owner of the capital, while it has been supposed to share the profit according to the contract. Hence, any “solh” or settlement provision in contract is practically breaching the principle and will lead to the annulment of muzariba.

According to the Commercial Code, a bankrupt merchant is exempt from paying late payment compensation after stopping. Disagreement over whether the guarantor of the bankrupt merchant follows the merchant regarding the compensation for late payment compensation has caused the General Assembly of the Supreme Court to issue a unanimous decision No. 788 dated 2020/06/16in which, in authors opinion, Civil opinion overcomes the issue of dispute and the special conditions of the Commercial Code and the comprehensive provisions that apply to bankruptcy are abandoned and regardless of the circumstances of bankruptcy according to the rule of guarantor liability compliance with the main debt in civil law, The guarantor is also exempt from paying the compensation for the delay. The question that comes to mind is whether in all cases the amount of liability of the guarantor is a function of the amount of liability of the subject and follows it? In this article, through descriptive-analytical research method, the commercial law and the different view governing trade relations in different fields were considered and led us to believe that, basically, except in special cases, purely civil views and provisions of the civil law should not be used in interpreting commercial regulations and the theory of commercial regulation independence should have been protected to meet the commercial needs of society. This independence has been violated in the unanimous vote of the mentioned procedure and has caused confusion of the provisions of commercial law and civil law. Inevitably, like the vote of unity of procedure 811, which was held to explicit the vote 733; By issuing a new unification procedure, or explicitly amending articles such as Article 405 or Article 421 of the Commercial code, the guarantor shall retain responsible for paying the late payment compensation despite the bankruptcy and exemption of the trader.

The rule of intercession is one of the jurisprudential rules of law regarding guarantee, which in civil law, compensation and in criminal law, punishment. The occurrence of a crime or damage to another does not always happen directly and through stewardship.Rather, in many criminal and civil matters, a person indirectly and through causation causes the loss of property to another or the commission of a crime, which, depending on the type of act committed, creates civil or criminal liability for him or both, and depending on the act The cause can be intentional or unintentional, negative or positive and can be realized in various forms, including pure causation, the community of cause and effect, and the community of causes; Therefore, determining the responsible person or persons in many cases, especially in the community of cause and effect, and especially where the cause is stronger than the direction, is of special importance for imposing punishment or compensation. In this research, the rule of causation in criminal law is examined.

Following the opinions of the jurists of Islamic schools of thought shows that the contract of guarantee for the validity of ajj includes several types with the titles of absolute guarantee, deferred guarantee, current guarantee, temporary guarantee, and malimjab. The question of this study is, what are the main evidences of the invalidity of conflicting forms? And on the assumption of concluding a guarantee on these forms in custom, can they be justified in a way that they are considered correct? Or should they be annulled? In this research, with a descriptive and analytical method, an attempt has been made to strengthen the idea that it is permissible to enter into a guarantee in the form of a dispute by rejecting and refuting the arguments for the invalidity of conflicting guarantees and presenting evidence for their validity. which is sometimes common among customs, give it a shari'i aspect and free their impermissibility from illogical justifications.

The establish of a legal relationship between individuals, whether in the form of a contract or outside it, is inevitable. These legal relationships sometimes appear in the context of debt and claim. In order to guarantee and facilitate the collection of claims, Creditor may have received a security from a debtor in order to take advantage of those securities, in case of impossibility of collection of debts from debtor directly. However, sometimes, After the creation of collateral, basic debt may be the subject of a contract that can be named as a transition collateral contract. There are doubts about how the formation of these types of contracts have an effect on the securities of basic debt. Some believe that after concluding of transition collateral contracts, preceding securities of basic debt will be collapsed; However, others believe that the preceding securities of basic debt will be remain. For each of these views, there are some reasons. In general, the second view seems to be stronger. In this article, the author has tried to examine the reasons for each of the above views from an analytical point of view in order to explain the correct point of view.