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

The separation of negotiable instruments from the civil obligation is the separation between two legal relationships, which is called abstract presumption. The most important aspects of this presumption: indebtedness and lack of attention to flaws in the private relations of the parties, which is called relative presumption. Although the commercial law of Iran has not explicitly accepted the fact that negotiable instruments are abstract, it can be inferred from the spirit of some laws, but some side examples cannot be considered absolute in the absence of the ability to invoke flaws against a third party, because exceptionally, it is assumed by the legislator to protect the third party. In order to achieve a logical attitude, the relativity of the abstract presumption should be examined according to the concept of the presumption and the principle of uncertainty of the presumptions and their opposability from the perspective of jurists, law, and judicial procedure. The judicial procedure has accepted this relativity, unlike some harsh attitudes in the field of turning civil obligation into commercial obligation.

Extracting the main purpose of the Shari'a is the most basic activity of a jurist. This process needs to acceptable sources and methods which must have the authority as their prominent features. "Concentrated Presumption" as a result of the preferred presumption and a matter of argument, will be obtained due to the multiplicity of presumptions which are derived from the Fatwas of various jurists on an issue. This kind of presumption is among the presumption which have been derived out from the unaccepted presumption based on its related Qurainc verses that has not benefited from inherent authority. on the one hand, because of the loss of inherent authority and due to its applicability in the field of jurisprudence and the principles of jurisprudence on the other hand, it is essential to have such studies around the authority of Concentrate Presumption. The present study with a descriptive-analytical approach, beside analyzing the semantic and conceptual meaning of "Concentrate Presumption", examines the validity of such presumption, as well as its degree of validation for jurisprudential issues; the principles, conditions, and its degree of authority in addition to this term's scope of presence and characteristics.

Presumption is the way to real religious law that is an invented real religious law for inventor. In other words, as presumption is caused mistrust, Jurisprudence considers it as valid, namely, news. In fact, methodology is one of the religious laws that proves religious laws in which unveiling of the truth is considered, such as trust and bayyene news and so on. Then, presumption does not include theology but it is contrary to theology, since theology is valid until presumption is not available or else it is unnecessary. As it is important to investigate presumption in jurisprudence and Islamic point of view, this study has conducted to investigate presumption probative value of methodology and its performance on jurisprudence and positive laws. This study was functional and analytical-descriptive. Considering the obtained results showed that : triple theories are based on theories on invented presumption and in jurisprudence it is in various views elements in considering the elements or not. In jurisprudence, presumption is classified according to proved causes, but the main difference is that it does not reach to reality directly. Then, sanity inferring in extracting the condition is considerable, then it can be said, every which is considered as causes, and reality is the sanity inferring from conditions and it is not the intended condition .

The effects of each local examination and investigation on the knowledge of the criminal prosecutor, with regard to the nature and the shape of influence on two substantial and procedural forms is imaginable. However, the legal assumption is based on the "presumption” of all of the states of issuing the local examination and investigation under the Article 221 of the Islamic Penal Code. This article aims to prove the case when the prosecutor “directly observe” the subject of the accusation to prove the assumption of the “reason in its specific sense”. It has been concluded that the effect of each procedural and substantial local examination and investigation on the knowledge of the prosecutor is relevant in spite of the rule “having a way to criminal reasons”. In the case when it is against the other reasons (being horizontal) it is in the "length" of the will of the judge and precedes the other reasons in their general sense and to prove this argument it brings the section A of the Article 302 in the Code of Criminal Procedure and the examination of the dead body as witness. The most important effects of knowing the knowledge gained through direct observation as “a reason in its specific sense” rather than “to presume” all cases of examination are the priority of the reason over presumption and the definitiveness of the verdict.

istishab is one of the useful documents in deriving jurisprudential rulings and legal arguments. istishab is briefly defined as legal presumption of continuity of the status quo in doubtful case. The conditions, elements, and types of istishab have been studied with the great efforts and scrutiny of Islamic scholars. The conditions, elements, and types of istishab have been studied with the close look of Islamic scholars. These researches have caused the use of istishab to expand tremendously in the field of jurisprudence, rules of it and law. But the "essence and nature" of istishab remains an important and fundamental question. In this research, while examining the literary and terminological meaning of istishab and trying to apply this meaning, to the evolution of practical principles - in general - and istishab. Although the word istishab is not mentioned in the tradition, but its content is included. Perhaps the first conceptual argument for acceptance is for Hisham ibn al-Hakam, who lived before Imam al-Shafi'i. In historical examining of the rules of jurisprudence, we come across terms such as "istishab of the present", "istishab of the state of reason" in the jurisprudence of the predecessors, which is clearly different from the current "istishab" in the rules of jurisprudence. First, the brief difference between the presumption and the practical principle is explained and the the opinions of Islamic jurisprudents are mentioned in order to determine the statistic and the practical principle of istishab. Some later jurists have proposed a theory called the "discounted and establishing principle" such as Mirza Naeini to be a new solution to the dual answer of "being a persumption" and being a "practical principle" of istishab. Regardless of this solution, accurate analysis of the problem solution requires the study of indicators and criteria for solving the problem, For example, the validity of istishab or the analysis of its elements has a clear effect on solving the problem of "being a presumption" and being a "practical principle" of istishab. In the end, while exploring the principles of istishab in the opinions of prof.Jafari Langroudi, as a summary, it is expressed three intellectual, jurisprudential and integrated source of istishab.

The major contents of this article include the nature, principles, effects and finally probative value of assuming knowledge of law. The basis of legislating this presumption as a conclusive legal one (and not a fiction) is the public policy in preventing irregularity and confusion. It is justified by ‘inwardness state of knowledge and that it is mental’ that makes it difficult to be proved. Although it is considered to be unfair to blame someone who is ignorant of law ,in ‘fiqh‘ sources, every reasonable person is presumed as being aware of law, according to the appearance, unless under certain conditions. This presumption is rebutted in three cases, due to its nature and its probative value according to the Islamic Penal Code: I-when a perpetrator is ignorant of non-criminal provisions such as civil regulations or administrative provisions which are efficient for a crime to come into existence. In these cases, mental element (mens rea) doesn’t exist. II- When the perpetrator’s ignorance is based on own his failure (not his fault). III- In “had (penance)” crimes and in “tazir” crimes (in the strict sense of the term) which are pre-ordained in fiqh; as soon as the accused claims that he was ignorant of law, when it is probable.

This article responds to the these two major questions، 1. Are there any certain principles and norms in judicial presumptions? 2. In judicial doctrine and proceedings، how are the evidences of judicial presumption introduced and then how are these evidences categorized and stipulated? In respond to the first question، four (public) principles are identified for judicial presumptions، which include 1) omission principle، 2) acquirement ineffectiveness principle، 3) exposure principle، and 4) judicial presumptions in neighborhood with legal presumptions. In respond to the second question، the judicial presumptions are divided 16 categories، 1) omission judicial presumptions، 2) ineligible testimony based legal presumptions، 3) ineligible admission based legal presumptions، 4) investigation and inspection based legal presumptions، 5) customs and habits based legal presumptions، 6) document based legal presumptions، 7) information and communication based presumptions، 8) criminal subject based presumptions، 9) parity relationship based legal presumptions، 10) inspection based legal presumptions، 11) judge’s knowledge based legal presumptions، 12) emergence based legal presumptions، 13) legal assumption based presumptions، 14) agreement or other legal relation based presumptions، 15) one party’s or another party’s action، statement or status، 16) due or nominal transaction based legal presumptions. In the end of this article، three important results are presented and discussed، A) contingency of legal presumptions، B) discipline and solidarity of legal presumptions، C) various usages of legal presumptions of judicial votes.

This article responds to the these two major questions، 1. Are there any certain principles and norms in judicial presumptions? 2. In judicial doctrine and proceedings، how are the evidences of judicial presumption introduced and then how are these evidences categorized and stipulated? In respond to the first question، four (public) principles are identified for judicial presumptions، which include 1) omission principle، 2) acquirement ineffectiveness principle، 3) exposure principle، and 4) judicial presumptions in neighborhood with legal presumptions. In respond to the second question، the judicial presumptions are divided 16 categories، 1) omission judicial presumptions، 2) ineligible testimony based legal presumptions، 3) ineligible admission based legal presumptions، 4) investigation and inspection based legal presumptions، 5) customs and habits based legal presumptions، 6) document based legal presumptions، 7) information and communication based presumptions، 8) criminal subject based presumptions، 9) parity relationship based legal presumptions، 10) inspection based legal presumptions، 11) judge’s knowledge based legal presumptions، 12) emergence based legal presumptions، 13) legal assumption based presumptions، 14) agreement or other legal relation based presumptions، 15) one party’s or another party’s action، statement or status، 16) due or nominal transaction based legal presumptions. In the end of this article، three important results are presented and discussed، A) contingency of legal presumptions، B) discipline and solidarity of legal presumptions، C) various usages of legal presumptions of judicial votes.

Nowadays, harmonization of regulations regarding the sanitary and phytosanitary measures and its advantages and disadvantages is one of the most controversial issues in international trade law. This issue has gain much attention, in particular, after adoption of the WTO's agreement on the application of Sanitary and Phytosanitary Measures (SPS Agreement) and its emphasis on harmonization of sanitary and phytosanitary measures by considering international standards concerned. The purpose of this study is to identify the margin of discretion that is enjoyed by WTO members in taking the sanitary and phytosanitary measures under the harmonization provisions in above-mentioned agreement. This paper through literal and textual analysis of the provisions of the SPS agreement shows that the agreement does not intend to provide an absolute harmonization in sanitary measures, but to give WTO members a free hand in adopting the sanitary and phytosanitary measures. Eventually, in order to encourage the member states to advance towards the harmonization on the basis of international standards, it is assumed that only measures conforming to international standards are consistent with the provisions of this agreement and also with the GATT 1994.