Ways of Indemnification of Losses Caused by Legal Actions of Authorities
Hasan
Badini
Associate Professor, Faculty of Law and Political Sciences, University of Tehran
author
Ahad
Shahi Damanjani
M. A. in Private Law (Faculty of Law, University of Qum).
author
text
article
2013
per
Despite observation of regulations and precautionbyauthorities and agents, sometimes other people incur aloss because of execution of legal order of seniorauthorities. This problem is separately discussed becausethat loss is caused by the order of senior authorities andthe harmed person has no role in its occurrence. Also, thatloss is peculiar to civil responsibility of the one inauthority and is absent in other responsibilities such asthose of doctors, producers of goods, and the like. In thelatter, loss is caused by doctor’s and producer’s fault whileloss in the former is caused neither by authorities’ nor theharmed person’s fault. The major problem, then, is howthe government is supposed to approach this problem.Study of traditional rules of civil responsibility gives nogeneral theory concerning indemnification of undo losses;hence, to bridge that gap, establishment of “Guaranteedfund of indemnification of losses of those who are harmedby terrorist activities, and crimes and accidents whoseagent is unknown or taking compensation from the agentis impossible anyway” is proposed.
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
1
27
https://jjfil.ut.ac.ir/article_36685_8d392c8079385454ca4f2591e9949e88.pdf
dx.doi.org/10.22059/jjfil.2013.36685
Criticism of Existing Approaches in the Realm of Islamic
Criminal Policy with an Emphasis upon Necessitations of
Developing Theorization of Indigenous Religious Science
Mahdi
Khaghani Esfahani
Ph.D. Student of Criminal law and Criminology, University of qum
author
Mohammadali
Haji Dehabadi
Assistant Professor, Faculty of Criminal law and Criminology, University of Qum
author
text
article
2013
per
Theorization in the realm of criminal policy is badlyneeded by the country. Lack of coherent, indigenouspattern of managing activities dealing with offence anddeviation causes lack of harmony of governmentalinstitutions invested with administrative affairs, and thiswill lead to nothing but drop of standards of criminaljustice in Iran. Although approaching criminal justice inIran is primarily and essentially influenced by Islamicteachings, the expression “Islamic criminal policy”isfacing several challenges in juristic-legal literature of ourcountry: problems which must be detected and solved,otherwiseone cannot claim preparation for moving in theway of planning “Islamic-Iranian theory of criminalpolicy.” Study of researches in the realm of Islamiccriminal policy indicates existence of some prevailingdiscourses in this connection; as some epistemologicaldiscourses – and not specifically in the realm of criminalpolicy - can also be detected which indirectly influenceessentials, structure, manifestations, and evolution ofIslamic criminal policy.Using the method of discourse analysis and reviewingperspectives in the realm of Islamic criminal policy in theresearch literature of the country as well as recent legalevolutions, the present essay explains detriments ofexisting perspectives in the juristic-legal literature in thecategory of Islamic criminal policy – with an emphasis
upon philosophy of jurisprudence – and describes whatrelation can be established between policies governingcriminal jurisprudence and Islamic criminal policy. Theultimate goal of this essay is to draw generalcharacteristics of a reading of Islamic criminal policywhich, in turn, is a part of a wider theory named “theIslamic-Iranian pattern of criminal policy.”
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
29
53
https://jjfil.ut.ac.ir/article_36686_63af95eb5dc6a84d86059269e09562fb.pdf
dx.doi.org/10.22059/jjfil.2013.36686
Contradiction of laws in Islamic Jurisprudence and Law from Denial to Proving
Mostafa
Daneshpazhuh
Assistant Professor, Faculty of law, Pazhuheshgah Hawzehva Daneshgah
author
text
article
2013
per
Discussions of Islamic international law, especially privateinternational law, i.e., nationality, domicile, legal situationof foreigners, and contradiction of laws are not presentedin Islamic jurisprudence under the same titles, and thismay lead to the supposition that Islamic jurisprudence hasremain silent concerning such problems.The present essay intends to prove incorrectness of thatsupposition as to the major and the most important subjectof private international law, i.e., contradiction of laws, andthat is why it has attempted to expound briefly the realityof contradiction of laws and its key problems in thecontemporary, prevalent law first, to survey and criticizereasons of appearance of such assumption secondly, and toexpound and draw the most fundamental cause, or ground,of origination of contradiction of laws, i.e., existence of“private international relations,” from an Islamic juristicpoint of view finally.
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
55
71
https://jjfil.ut.ac.ir/article_36687_ade6c73060863e1d9877a5ea78ac4565.pdf
dx.doi.org/10.22059/jjfil.2013.36687
A Survey of Proving Falsity of Oath in the Iranian and French Laws
Sayyed Mostafa
Mohaghghegh Damad
Chairman of Department of Islamic Law, Shahid Beheshti University
author
Haniyeh
Zakerinia
Ph. D. Student of Private law, University of Qum.
author
text
article
2013
per
In the legal proceeding, should an oathbe taken in case oflack of proof on the part of plaintiff, it would causeextinction of the claim of the plaintiff. Now, if it wasproved that the oath has been false when the definitejudgment has been issued, we encounter the problem ofunlawfulness of reversal of judgment of the judge injurisprudence and that of validity of what is judged in theIranian and French laws.Majority of jurists hold that hadiths reveal that oath of thedefendant renders all rights of the plaintiff as to thedisputed property null, but should oath of the defendant befalse he must naturally return the disputed property to theplaintiff. In case of confession of the oath taker tofalsehood of his oath, he is legally obliged to return theproperty and all rights of the plaintiff, including the rightto claim again, will return.In the French law, announcing falsehood of the oath afterthe verdict has been issued is considered among facets ofre-trial, and in the Iranian law it can be treated as aninstance of trickery, deception, and a facet of re-trial.
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
73
96
https://jjfil.ut.ac.ir/article_36688_928f4d6128feec83bb10c8e16e9a563e.pdf
dx.doi.org/10.22059/jjfil.2013.36688
Legal Situation of Estate of a Debtor Deceased in Settlement Period
Sayyed Ali
Alavi Ghazvini
Assistant Professor, Faculty of law, University of Qum, Qum Campus
author
text
article
2013
per
Making a balance between rights of creditors and heirs asto the estate of a debtor deceased is among mostfundamental juristic problems which has been taken intoconsideration by Shi’a jurists from a long time ago.Discussions such as rights of debtors as to the estate,statusof definite disposal of the estate by heirs before settlement,and the like can be surveyed in this connection. Theproblem of the time when the estate is transferred to theheir, however, is among most fundamental problems insuch a way that all other problems are considered itsbranches and results;that is why the said problem has beena matter of detailed discussions.Different opinions arepresented by Shi’a jurists and contemporary lawyers inthis connection, andthe Article 868 of the Iranian civilcode has also dealt with this problem.Detailed presentation of opinions mentioned injurisprudence and law concerning that problem along withtheir criticism and survey can assist us in becoming moreknowledgeable of theoretical essentials of the civil code.Presenting relative opinions in detail and criticizing them,the present essay indicates that the estate of the deceasedtransfers altogether to his heirs as soon as he dies – thoughright of creditors are considered in it before clearance –and deals with juristic and legal effects and results of thistheory.
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
97
118
https://jjfil.ut.ac.ir/article_36689_500b7f697a11f8cd9e6999df8c549997.pdf
dx.doi.org/10.22059/jjfil.2013.36689
Implied Term in Donating the Dowry
Mahdi
Movahhedi Mohebb
Assistant Professor, Faculty of Semnan.
author
text
article
2013
per
The bride possesses the right as to the dowry as soon asterms of marriage are uttered and is allowed to use it inany way she wishes, including denoting it altogether to thebridegroom and discharge him of his obligations in thisconnection. On the other hand, divorce before intercourseis considered an independent factor in transferring half ofthe dowry to the bridegroom based on which, according tothe opinion of majority of jurists, bride must paysomething equivalent to half of the dowry to thebridegroom.Analyzing opinions and surveying their proofs, the presentessay comes to the conclusion that divorce beforeintercourse only causes removal of entitlement of the brideas to half of the dowry. Also, bride’s denoting the dowryis not absolute, but rather is dependent upon the impliedterm of continuity of marriage; hence, when thebridegroom violates that and divorces the bride, hisdischarge of payment of the dowry or ownership of itbecomes obviated, or, at least, the bride will have the rightto abrogate that denotation so that she still may haveentitlement of half of the dowry in case of divorce beforeintercourse and that of all of the dowry in case of divorceafter intercourse.
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
119
135
https://jjfil.ut.ac.ir/article_36690_cb550866667e412cac39052a24dd70e1.pdf
dx.doi.org/10.22059/jjfil.2013.36690
Difference in Ijtihad from a Quranic Perspective
(Commentary of Verses 78 & 79 of Sura 21)
Abedin
Mo’meni
Associate Professor, Faculty of Theology, University of Tehran
author
text
article
2013
per
Ijtihadin the realm of jurisprudence and Shari‘a leads todifference of opinions. There is a disagreement whetherdispute over juristic problems is lawful, for Shari‘a has aconstant connection with individuals and social life. Theresult of dispute over Shari‘a would be conflict andseparation in the social life and this makes differences ofopinions in juristic problems unlawful. On the contrary,there is a perspective which on the one hand considersunity of opinions impossible because of differences ofindividuals, environments, and perceptions and on theother hand treats unity of opinions undesirable; hence,defends desirability of differences in opinions as tojurisprudence and precepts and considers it lawful. Thelatter relies on verses 78 and 79 of sura 21 which denotedifferences of two contemporary prophets in judging oneparticular case and, declaring differences of levels ofknowledge as well as abilities of prophets, considersdisagreement of judgments of prophets a practical patternfor social life; it treats scholarly disagreements of scholarsin jurisprudence and precepts as the custom of scholars,comments on those two verses, and defends disagreementsbased on ijtihad – but negates disputes based on rebellionand mutiny.
Jurisprudence the Essentials of the Islamic Law
University of Tehran
2008-8744
46
v.
1
no.
2013
137
159
https://jjfil.ut.ac.ir/article_36691_3a05945f088552cd9f9eabed486c69d8.pdf
dx.doi.org/10.22059/jjfil.2013.36691