نشریه دین و قانون
سال هشتم شماره 27 (بهار 1399)

The current deposit account is very important due to some functions such as facilitating currency exchanges and eliminating the need for the account holder to carry and maintain cash, the credibility of documents in payments and receipts, and keeping money in bank. According to the law on usury-free banking in the Islamic Republic of Iran, the depositor's legal relationship with the bank in the current deposit is a loan; therefore, considering themselves the owners of funds, banks take ownership of these deposits, make money based on the deposits, and make a profit using the account balance of these free accounts. This is while according to ertekaze orfi[1], the current account depositor does not place his money in the bank with the intention of borrowing and does not intend to take ownership of the bank, but the purpose of the depositor from such an account is organizing his/her own receipts and payments through the services of the current account; that is, if someone asksed about his/her money, one would say that I put my money in the bank to take and spend it whenever I need it. As a result, a difference and contradiction between the bank’s behavior and the depositor’s intention is seen. The current study aims at examining the jurisprudential nature of the current account within the framework of certain sharia contracts. Through data collecting especially in jurisprudential issues, and employing descriptive-analytical research methods, this article attempts to provide a solution approved by the legislator so that the depositor and the bank can use the services of the current account legitimately. Accordingly, the present study seeks to prove the hypothesis that "the bank's relationship with the depositor in the current account can be defined on the basis of contract of settlement and all expectations can be met from the current account”. The research findings suggest that the law on interest-free banking be reviewed based on this approach and that its regulations and executive instructions be reviewed again.

The idea of ​​separation of powers led to the formation of various legal systems, including the presidential, parliamentary and a mixture of semi-presidential and semi-parliamentary systems with the purpose of preventing the amassing of institutional power, and driving homogeneous issues in the legislative, executive, and judiciary areas toward specialization. Therefore, the comparative and prescriptive study for the Iranian legal system that tends to improve separation of powers and its leadership is an important issue not to be neglected. Accordingly, the current study attempted a comparative prescriptive study of the separation of powers in Iran and Japan. Japan is an Asian country that is quite successful in economics, and like Iran, uses a two-pillar executive power model. Japan’s model of the separation of powers is the monarchy-constitutional parliament, wherein the executive branch, consisting of the emperor and the cabinet, is accountable to parliament. Thus, while examining the differences and commonalities of the systems of separation of powers, the authors have utilized the descriptive-analytical method to explain that the parliamentary model in Japan, for its dominance on the government, faces much less executive tension. Moreover, because legislative and controlling authority is exercised exclusively within the framework of the National Diet[1] does not face normative, executive and even judicial divisions.

According to the rule of mitigation of loss, the aggrieved or injured party should not simply watch the damage, but must take all the normal, reasonable and necessary measures to reduce the damage; otherwise, he will not have the right to claim revocable damages from the defendant. Various ideas have been presented about the basis of this rule. Some jurists and courts consider the basis of this rule on cause and effect and equate it with the theory of contributory negligence. Others believe that the basis of the mentioned rule should be sought in the theory of the predictability of the losses. The principle of goodwill is also mentioned as another basis of the rule of mitigation of loss. In United Kingdom law, the basis of this rule has an economic basis, and economic efficiency is the main factor in the expansion of the rule in the Common law and international trade. In Islamic law, Qa’id-e Iqdam[1] is one of the principles that can be proposed. In this paper, in order to deduce the validity of the rule of mitigation of losses, the basics of reducing the damage and the duty to mitigate losses in Iranian law are examined.

Many Shiite foqaha, especially the contemporary ones, based on the principle of Al-Aisar Fal-Aisar[1] have considered the levels of Nahy-e az Monkar[2] to be qalbi[3], lesani[4] and yadi[5], respectively. This is while the main narrations of the Infallibles (AS) in this regard, using words such as Inkar[6] and change of monkar[7], have considered yadi level of nahy-e az monkar superior to other levels. Therefore, finding the reason for the difference between this approach and the appearance of these narrations, considering the significance of the levels and conditions of Amr-e bi Ma’roof va Nahy-e az Monkar[8], being emphasized by Article 8 of the Islamic Republic of Iran’s Constitution, is vital. Using a descriptive-analytical method, the current study focuses on the Islamic law sources including the mentioned narrations and some implicit references of Imamiyyah foqaha, and examines the opinions of some Sunni scholars with regard to yadi level of nahy-e az monkar and its order in relation to the two other levels. Accordingly, the present study suggests that the difference between the narrations and the mentioned approaches, depending on the importance of the committed crime and the time of dealing with it, can be categorized into two forms of "dealing with crime" and "dealing with the criminal (prevention of occurrence or recurrence of crime)", and can be justified and even be integrated, but the narrations regarding the precedence of the yadi level of nahy-e az monkar can change the common view of the obligatory conditions, such as the condition of influencing the perpetrator and his insistence on the wrong, as well as the role of people in this level; and thus, affect public law and Islamic criminal law.

An Islamic government is a government whose structures and institutions are formed and governed according to the teachings of Islam. About administrating the institutions of the Islamic government, some Islamic scholars, based on the verses and hadiths that command consultation, believe in the permission or even the necessity of the council management of some of these institutions. Utilizing a descriptive-analytical method, the present study seeks to answer this main question whether the council management of the institutions of the Islamic government is possible. In this regard, after mentioning two categories of arguments, namely a) the prohibition of the council management of the mentioned institutions, and b) the need to consult in the management; i.e. while administrating, the study concludes that first of all, consulting the chairman or manager in all matters is not obligatory; however, the thing that is considered haram from Islamic point of view is the complete abandonment of consultation and falling into the trap of tyranny and dictatorship. Secondly, the study concludes that council management in executive institutions is not wise. Thirdly, the scope of the governing body in asking for consultation is limited and certain, and does not cover all matters. Finally, consultation which is institutionalized in the form of various councils in the Government of the Islamic Republic of Iran has been studied, and it has been suggested that these institutions cannot be considered as a kind of council management.

The simple customer-supplier relationships in the past has changed today due to the diversity, complexity and use of new technologies, and different people as intermediaries, business brokers or distributors have been placed between the producer and the consumer. For that reason, today, unlike in the past, customers or consumers typically do not know the producers, and with the intervention of governments in these relations, the issue of "consumer rights" has been created. In this regard, the question now is that if the consumer is harmed as a result of a defect in a product, on what criterion, the civil liability of the suppliers of the goods is based? Another question is that whether the supplier is only responsible to compensate the buyer of the goods for the defect or loss, or he is also responsible to compensate all other consumers or customers who have suffered damages or losses due to product defect. In this article, while examining the various principles proposed on the subject, the Iranian legislator's desire to accept sole responsibility in accordance with Articles 2 and 18 of the Consumer Protection Law has been inferred. The buyer of the defective product, in addition to guaranteeing the implementation of the khiyar-e ayb[1], or Arsh[2] can also invoke the coercive liability of the supplier to compensate his damages, but due to the defect of the law, other people who have suffered damages have no way to compensate the damages except through general rules of civil liability and reference to the provisions of the civil liability law and the provisions related to losses and causing the losses.