پژوهشنامه حقوق اسلامی
پیاپی 52 (پاییز و زمستان 1399)

Some legal practices, despite the creation in the world of credit and their identification by the Shari'a and the law, do not have the present effect and until the provisions and the necessary components of their complement are annexed, they are lacking a legal effects. These actions are considered to be correct for competency. Although, they have potential for full legal action. All the irrevocable and revocable contracts and financial unilateral acts, can be recognized as correct competency and with similar concepts, "the theory of contract management" and "relative nullity" has shared points in foreign law, but it also has differences. Volition, capacity and consent are the fundamental requirements of competency as legal action. The effects of competency is different in contracts which have "Mora'a" and "Moqouf" invalidity. Incompleteness of contract may lead to the revocation or termination of the contract or, in rare cases, to be ineffective. Competency in condition contrary to the requirement of contract, assuming relinquishing this condition, leads to survival of the contract, In terms of recognizing a desirable element and main goal of the contract, which has the ability to survive without the condition. Assurance of the titles also is effected by competency based on the jurisprudential theory, but in civil cod it should be distinguished; knowing as effect of competency wherever is considered as result of a void contract and effect of authenticity in articles that is considered as result of a proper contract. In unauthorized financial unilateral acts,

The constitutionalism theory attempts as a means to limiting the powers of government and to constrained constituent power to protect certain fundamental values that are well defined. This theory primarily be traced back and legitimated through the national’s Constitution but contemporary developments in international law surrounding the question of this idea can be plausible beyond domestic level or not. This article with descriptive and analytical approach evaluates the issue of constitutionalism at the national and international levels. The main idea in this article is that the constitutionalism is not is not belong to the national arena but also it’s stepped into supranational and international fields, though, this is not deny the differences in function and efficiency of constitutionalism in such levels. International law has developed several concepts such as jus cogens which is accepted by the international community as a norm from which no derogation is permitted therein, the validity of other norms are subject to the compatibility with these principles. However, despite the quasi-constitutional concepts in international law, indetermination applications, and more importantly, uncertain of the body whose identify and enforced them has caused them less efficient.

Citizens' political rights have been recognized in the legal system of the Islamic Republic of Iran requiring proper mechanisms within the legal system for their realization. The Iranian Constitution has a great deal of symmetry with the International Covenant on Civil and Political Rights in terms of recognizing political rights. At the same time, Iran has ratified this Covenant without any reservation. Therefore, it is neither favorable nor fruitful for Iran to withdraw from the Covenant. In the International Covenants, the issue of guarantees is addressed in three stages: respect, protection, and enforcement. In the interpretations regarding the guarantees issue, rendered by the UN Human Rights Council, the emphasis has been put on the judicial protection. for whose political rights have been violated to lodge a complaint with the competent authorities. In the current judicial structure of the Islamic Republic of Iran, it seems that the judicial guarantee of citizens' political rights requires the creation of two structures. First, the establishment of a "National Human and Citizenship Rights Institution" that should preferably be suggested in the form of a judicial bill by the judiciary to the parliament (because safeguarding the public rights vested with the judiciary also includes citizenship rights). Second, the creation of specialized judicial bodies or branches in the judiciary to deal with complaints of violations of citizens' political rights. Such bodies may be established and operate either at the highest possible level or in the form of specialized civil rights prosecution office under the General Prosecutor's Office.

The responsibility arising from the defect of production, which is one of the specific issues of civil liability in the general sense, has gained its proper position with lawyers and intellectuals in the field of responsibility for some time, this attention has been developed in response to the needs of the current expansionist societies, but among the general public civil liability of the manufacturer of the fault, which is the legacy of the doctrine of responsibility and with a small amount of research and in a fraction of the Seconds answers the ambiguities of theorists, a question about the legal status of defense related to the danger of the development of science and technology in the light of the defect of public science at the time of production and supply of the product has provided more and more thought in this regard, which leads to this thinking in the progressive countries, finding the appropriate position of the defense in their legal texts. Now, in this paper, we have investigated the answer to the above question to prove where the risk of science and technology development stands in the geometry of civil liability rights and its related defense, how efficient it will ultimately lead to development-oriented productivity, even though consumer rights can be preserved by considering appropriate measures.

The Iranian Revolution has affected the Iranian society from various perspectives, and one of the areas that has experienced a major impact is the legal system arising out the Revolution. A transparent and clear sample of this impact is the emergence of so-called "revolutionary institutions" that are enshrined in many current laws and regulations in the Islamic Republic of Iran and has made changes in this area.legal experts and university professors have never commented on the definition, nature, examples, and necessity of establishing and continuing the existence of such institutions. Using the descriptive-analytical method, the present article concludes that in general, if an institution is established to achieve the goals of the Islamic Revolution and to protect these goals. it will be considered a "Revolutionary institution" provided that this Institution is not a common structure of the Government. In addition, in terms of legal nature, it may include any large or small institution that exists in the legal structure of the Islamic Republic of Iran, but the legislature does not consider this generality and when it uses the term of "Revolutionary Institutions", it means micro-institutions and executive institutions of the country, which are often of a non-governmental public nature, and in some cases they are a state institution.It is worth mentioning that at present, despite the similar missions of these institutions and their parallel work in practice and the subsequent structural inflation, the reorganization of such institutions will be inevitable.

Inconsistency occurs sometimes between two indications, sometimes between two principles, and still sometimes other between an indication and a principle. In discussions about juridical principles, we have repeatedly heard that if there is some inconsistency between “indication” and “practical principle”, this is a primary inconsistency; since when there is “indication”, we have nothing to do with the principle. The reason is that the subject because of which practical principle is executed is “doubt” and when there is some “indication”, there is no room for doubt and so no need to referring to practical principles. Concerning relation between the rule Dra’ and Presumption of Continuity (Istishab), however, it should be noted that jurists are of no fixed opinion in this regard. There are three opinions concerning this matter: 1- the rule of Dra’ is prior to Presumption of Continuity; 2- Presumption of Continuity is prior to the rule of Dra’; 3- doubt about this matter. After hard studies and research, it should be said: the rule of Dra’ is enforced only concerning Hudud and Ta’zirat (Islamic Punishments) and that only at a reasonable level. In this case, it is prior to Presumption of Continuity. Beyond this reasonable level and concerning Qisas (retaliation) and Diyat (blood-moneys), however, Presumption of Continuity is prior to the rule of Dra’.

One of the most important issues in the national and international arena in recent decades, especially in the present era, is the issue of the drug phenomenon and its harmful effects on human societies. All societies and most governments agree that drugs and crime As a result, it poses a serious threat to the human race. However, you have to think of a solution to this sinister phenomenon. The solutions that have been implemented in recent years have been based on a kind of criminal strictness in punishments. Thus, the main policy of the deterrence view is to threaten or enforce criminal penalties to reduce the motive for the crime; That is, the use of punishment as a deterrent that prevents the offender from repeating the crime and also reduces the motivation of others to commit the same crime in general. In Iran's anti-narcotics criminal law, too, a strict approach has always been taken towards drug offenders and with severe punishments of deprivation of liberty and deprivation of life. However, in recent years, a fundamental question has been raised in this regard, whether the imposition of severe punishments such as execution and life imprisonment, etc., has had the effect of deterring the commission of drug-related crimes? In the present article, which has been done in a descriptive-analytical method, using library resources and texts, with the aim of explaining and explaining the deterrence of severe punishments related to drug crimes, and in this regard, different dimensions of the issue in terms of field, statistics, policy The criminological and sociological studies have concluded that the intensification of punishment does not play a significant role in crime prevention and that recognizing the causes of crime and adopting preventive and corrective approaches is more necessary and effective than necessary. In this article, in addition to brief references to the purposes of punishment, deterrence as one of the most famous and oldest theories of justification of punishment and its types, the subject of this type of application is severely restrained. Punishments do not in principle have the effect of deterring drug-related crimes, and it is better for the legislature to pay more attention to non-criminal methods of prevention.

The evolution of substantive laws and forms in different societies is a reflection of criminal thought. Historical studies by law scholars have shown that the political, cultural, religious, and geographical structure of societies has been the main cause of the formation and modification of laws and the style of dealing with crime and justice since its inception. The evolution of justice systems reflects the evolution of human thinking on one of the most important issues in human societies. The presence and role of prosecution authorities in different historical periods has been the focus of different jurisdictions, and accordingly, the laws of the jurisdiction of countries have changed frequently. These changes focus on one's interests, social issues, and sometimes both. Prosecution has long been regarded as one of the key pillars of criminal justice. In this regard, the evolution of the role of the prosecuting authority in different historical periods should be studied and extracted through criminal proceedings. What changes have been made during the prosecution process? On the other hand, what are the differences between the prosecution authorities in the signatory countries that currently have the prosecution system? And what is the cause of those differences? In order to answer the questions raised at the outset, it was necessary to examine specifically and precisely the history of the accusative justice system from the outset of the Sumerian and Babel governments. In this regard, the principles and characteristics of this system were studied in a specialized manner. During different periods and based on various political and social changes, the legal and governmental view of the criminal systems and the status of those involved has greatly changed. Studying the role of the prosecutor assigned to a particular person at different times and in different countries, and therefore using the term prosecuting authority, requires investigating the position of other prosecutors and criminal systems. The role of prosecution authorities in the prosecution phase of the prosecution process has also been specifically explored in the context of the evolution of the two countries, the United Kingdom and the United States, due to their avoidance of disclosure.

Today, The Personal injuries are more important because of their effects on the body and soul of man and Also their Complex dimensions they have found. There are numerous difficulties about this subject and the assessment and compensation of personal injuries for the people who are in vegetative life, is one of them. These Damaged persons, on one hand are live, because they can breath normally and totally the involuntary body activities are done by it self. On the other hand, they don’t have any cognitive activities and they don’t have awareness about the environment. This research wants to study about the compensation of financial damages for these persons who are in mentioned condition. We should pay attention that their live is non-deployed and this has special effect. Any way it looks like that medical expenses and the cost of living can be asked and Also, The loss of income, but with special attention about their condition.

During the Qajar era, conscription entered the Iranian legal system, in imitate Europe in order to strengthen the defense and build a strong army. The operation of Religious scholars with conscription’s approval and implementation were different; most scholars including the Imam Jome Khuee and Martyr Moddares was Agree and also support the Approval of conscription’s law. But some scholars including Haj Aqa Noorollah Esfahani and Mirza Sadiq Tabrizi apparently disagree with Implementation of this law. These two different positions raise the question: what was the view of the Religious scholars towards this law and what jurisprudential reasons did they have. This article for responding this question investigate this issue with an analytical and descriptive method and concludes that Religious scholars didn’t have any religious disagreement with conscription but they also supported its approval and implementation. But the disagreement by some scholars that has been reported during the implementation of this system, was aimed at combating Reza Shah's anti-religious policies by cover of conscription and coordinate people against him. People's unfamiliarity with the new system, Reza Shah's mastering on the army and using it for anti-religious purposes, are the other reason of religious scholars' disagreement.

The present study is aimed at answering this question despite the fact that guaranteed private ownership has many effects and benefits on foreign investment and it leads to production and economic prosperity but it requires to provide legal and judicial protection mechanisms for this right. The legislature, in the law of encourage and support foreign investment, it makes foreign direct investment possible in areas where private sector activity is allowed, however, the rules and regulations of legal and judicial protection of private property in the country do not comply with investment rules and standards. However, changes have been made in the law of encourage and protect foreign investment and identified protections for investor property rights but this law failed to provide a proper legal and judicial framework providing the right environment requires protection of private property in other national laws, especially the constitution law in a way that leads to the efficiency of this right and is dynamic and attractive for the investor.

Based on the well-known jurisprudence and law of Iran, the fault doesn't has independent function in the civil liability system and only is a means to establish causal relationship in civil liability. This conclusion is based on the surface of traditions in this field and is in conflict with certain principles such as the nought of civil responsibility principle, freedom of trade and the sanctity of work and efforts in Islamic jurisprudence. For this reason, it seems that, Contrary to the views of those who do not recognizes the fault as a stand-alone requirement in civil liability, at least in cases of causing loss, has substantial role, even based on rules such as principle of harm, the conduct of the wise, etc., which are draft to reject the independence of the fault can not use the elements in the moral theory of corrective justice to deny the effects of the element of fault as a supreme principle and a independent pillar in civil liability. In this research, through a descriptive-analytic approach, is tried to analyze the role of fault in civil liability as a stand- alone element.