پژوهشنامه حقوق اسلامی
پیاپی 37 (بهار و تابستان 1392)

Fulfillment is one of the causes of termination of obligation. Concerning fulfillment the following question may arise: if one is under several debts to another، and the amount he pays to the creditor towards satisfying his obligation is not enough to discharge him of all his debts، which of the debts would the payment in question cover? Article 282 of civil law has broadly responded to this question giving the decision concerning attribution of the payment to the debtor. However، this article does not respond to the question if the debtor does not use the power of attribution at the time of fulfillment، which of the debts would that payment cover? The broadness of this article has divided experts in law. The source of article 282 of Iranian civil law is article 1253 of French law. However، in the civil law of France، the legislator has clarified the issue in the above mentioned article and some other articles. The present article analyzes the views of Iranian lawyers comparing them to the civil law of France.

According to primary rule، receiving property belonging to other without his consent is not permissible unless there is a specific reason for it. Since all the governmental taxes particularly customs lack the consent of individuals، some hold that its levying is not permissible. However، refusing to levy these taxes leads to disturbing the business system of the society. Thus، some have permitted it based on the secondary rule. Most of those justifying collection of taxes through secondary rule، have stated government and its requirements as reasons for it. However، this issue has been controversial among Shiite jurisprudents and many have considered the common arguments inadequate for establishing the permissibility of government. As a result، the concomitants of the issue of government including customs are under question too. The present article seeks to put forward a new method towards permissibility of levying taxes. Hence raising the issue in a way that those not approving the government would sanction this practice.

Although discussing factorslikeminority as impeding or excusing factors of criminal responsibility does not have any tangible and objective results, it has a role in believing in realization of criminal responsibility of the perpetrator and then elimination of his punishment, or lack of realization of criminal responsibility and consequently refusing to punish him. Elements such as reason, maturity, intention, and free will are either the constituents of mental element or the constituents of criminal capacity. If these elements are considered as the constituents of mental element, the latter as one of three elements necessary for realization of crime would not be completed without them. So there is no crime and there is no responsibility. If mental element is defined as mere intention in intentional crimes and criminal fault in unintentional crimes, the previous elements should be discussed as elements of criminal capacity the realization of which considered as one of the concomitants of creation of criminal responsibility. However it is noteworthy that criminal responsibility is established when there exits criminal act next to criminal capacity while specific causes (including justifying causes of crime and factors impeding criminal responsibility) are absent.

Marketing is the process of transferring goods from the producer to the consumer. Direct sale is a way of marketing in which individuals face to face with the purchaser sell their products and do not require any definite time or place for this task. Network marketing is a new kind of direct sale in which the individual gets rewards for direct sale of goods، as well as direct or indirect introducing of individuals. The present article seeks to define three foundations for network marketing the jurisprudential study of which enables one to issue the positive rule of the validity of the activity of network marketing and introduce network contracts with which one may undertake network marketing. Applying network marketing to nominate contracts، no room would be left for discussing network marketing within innominate contracts.

Theoretically, the nature of lease and deposit and the definition of these two legal acts are not the same in civil law. However, in practice the legal relation established is sometimes so identical that it is not easy to distinguish one from the other. For example when one deposits his securities or precious things in the trust fund, what is the legal relation between the bank and the owner of capital? Does the bank rent out the trust fund to the customer or receives the things therein as deposit? French experts of law have called these contracts as safeguard contracts. The primary purpose of the parties to these contracts is agency for safeguarding property while the condition of equal remuneration for the obligation of safeguarding is among the main obligations of the parties. Now the main question is: What is the nature of the safeguard contract? Is safeguard contract established as the lease contract and is commutative? Is obligation of safeguarding the subordinate aspect of the lease or it is a deposit with the condition of consideration? Studying the nature of the trust funds of banks, the present article is an attempt to prove that the safeguard contract is the same contract of lease with the implied term of renting a safe and secure place.

There is no doubt that public order is a key concept in the domestic institutions of any legal system particularly the statute ones. In spite of its different conceptions، this concept plays its own role in all legal fields whether domestic or international regulating other legal institutions and rules in a significant relation with it. Public order can make a contract null and void، cause criminalization، suspend rights and freedoms، or increase the authorities of dignitaries in certain circumstances. On the other hand، it can overrule all or part of a convention or give rise to a mutual military and coercive action. In contrast، we face the concept of public policy in Anglo- Saxon law، the concept supporting fundamental values and beliefs of common law. However، the nature of these two legal institutions is far from clear whether by themselves or in relation to each other. The present article seeks to study the concept of public order under two different terms in the statute and Anglo- Saxon legal systems for their identical functions. It is an investigation based on the theories of legal scholars in both legal systems and on the legislative usages of the two concepts of public order and public policy. It indicates that public policy is a special conception corresponding to new legal developments and interactions.

Supreme Council of Cultural Revolution is one of the legal institutions in Iran that is capable to enact on issues related to culture by the mandate of supreme leader. This authority gives rise to overlapping of the acts of this institution with those of other institutions. Relying on the constitution and legal rules، the present article studies the overlapping and conflict of the acts of the Islamic consultative assembly، executive branch، and the expediency council with those of the supreme council of cultural revolution. Considering the fact that this council has the right of policy making in cultural affairs، the article concludes that the acts of the supreme council of cultural revolution- if observing its scope of authority- are superior to other three bodies. Therefore، Majlis، executive branch and the expediency council do not have the right of enacting anything in conflict with the legal acts of the supreme council of cultural revolution. However، those acts of the supreme council approved base on paragraph 8 of article 110 are an exception to the rule.