نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 9 (پاییز و زمستان 1393)

According to the Article of civil law and “Fogaha’s” (Jurisprudence) viewpoints, if an endower has appointed as a responsible and he has accepted it too, he can manage it as “Motavally-e Mansoos” (specified custodian) in the limitation that endower has determined, provided that his acts are not against the statute. Generally, if an endowment doesn’t have any specific manager according to Article 81 of civil law, and an article of law of “Owgaf”, then the leader of Islamic country (“Valiy-e Fagih”) should take all responsibility. But there are some disagreements in jurisprudence about managing endowment. This paper is to explain some various ideas of jurisprudents regarding assigning the responsibility of general endowment to those who do not have any advantages under the “Valiy-e Fagih’s” management. The paper is also to suggest that some rules should be developed in order to have legal guaranties about acts of management.

According to Article 1123 of the Civil Code of Iran, spouses do not have equity right in termination of marriage contract caused by the nongender defects. This regulation has been compiled conforming to opinion of the majority of Shi'a jurists. Accordance to this viewpoint, if the woman has defects such as vitiligo, leprosy and blindness, her husband can terminate marriage contract, but if he has same diseases, his wife has no right of revocation of marriage. There are no compelling reasons for this discrimination. Due to scientific advances, if the diseases is treatable, the right of termination remains. In addition, in the current era, there are diseases that are harmful, but they are not the cause of termination. According to the opinion of the minority of Shi'a jurists and Sunni religious scholars, there are not differences between spouses in right of marriage termination caused by the same defect. At Kuwaiti Personal Status Act, the couples have the equity right in revocation of marriage, caused by the non-gender defects, The purpose of this study was to investigate the reasons for discrimination in jurisprudence in civil code. In this paper, legal and jurisprudence bases of these rules are studied comparatively, by using analytical method. The results show that amendments of Article 1123 of the Civil Code create legal equality for couples, fairness and legal equity of spouses. According to Shi'a scholars and Article 139 of Kuwaiti Personal Status Act, the above mentioned amendments are not inconsistent with Islamic law.

The jurists of Imamiyeh religion do not have a single idea about degree of knowledge that the acknowledger should have about acknowledgee. In article 1271 of civil code, it is stated that validity of confession at least is subject to minimum knowledge about acknowledgee. The style of writing of this article has caused disagreement between lawyers. This point may be the cause of different judgments in similar case. In addition, the manner of giving effect to this confession and also the way of determination of the real acknowledgee is not stated in the code. After dealing with the subject in Imamiyeh religion and analysis of it in law, the present paper proves that acknowledgee should be determinable in trial, and this matter is not limited to doubt of acknowledger between two certain people, and we can give effect to unknown confession which is determinable by available evidence in proceedings.

Judicial agency is one of the most significant and practical subjects of civil procedure. This on one hand stems from the multiplicity of governmental organizations and institutions and on the other hand their needs in bringing an action and defending their rights where it is required. In fact, the governmental organizations and institutions prefer to vest defending and bringing of actions to their staff in terms of judicial agents. By doing so, the latters are empowered to take all necessary legal steps in judicial procedures as well as administrative courts like office of employment dispute resolution, tax dispute resolution board and etc. Despite the fact that courts and administrative sources always encounter with different kinds of judicial agency there is no comprehensive rules to deal with the issues arises from such an important issues. It has also not been examined by our legal academics in detail. As a result the present article is an attempt to scrutinize the status of judicial agency and its authorities, duties and liabilities. In doing so, besides making use of general principles of law we will rely on jurisprudence as well.

According to the famous belief of Shi'a canons, for mortgage contract to be valid, capability of grasping in mortgaged property and subsequently to be objective are considered as requirements and hence hypothecation of interest is void. This is due to the fact that profits are not considered to be objective and as a result they are not graspable. Iranian legislature also complies with the mentioned belief and in Article 774 of civil code, hypothecation of interest is regarded to be invalid. The present article will deal with some evidence, regulations and doctrines, and after providing a critic of conditioned principle of grasping in mortgage contract, it will discuss possibility of benefit grasping. Finally, in order to determine the legal nature of interest mortgage in the present legal system, the paper will recommend the law maker review hypothecation of interest and use this legal institution economically.

The word “Intangible Property Rights” has not been clearly identified and categorized among Muslim jurists and lawyers and its exemplifications range is different in various definitions. This difference in concept and domain of Intangible Property Rights exemplifications is not caused by the translated and imported expression from western legal literature since such confusion can be seen according to selected names and expression for this concept. Nowadays, given the importance of terminology in jurisprudential and legal issues, in particular paying attention to intangible property rights, as the right whose sentences are the subject of contemporary jurisprudential and legal researches is felt as the first stage to present a clear and united definition for property right. Therefore, present study tried to offer a new definition for intangible property right by studying and criticism of several existing definitions and thereby the study recognizes intangible property right as a separated concept from intellectual rights, moral rights and the rights relating to personality which has relationship with these conceptions. In this regard, intangible property right is a right derived from 5 essential expediencies of the human and has been defined to support spiritual expediencies of the personality. Consequently, the exemplifications range is derived from those 5 essential expediencies. Then, in order to study meaning of individual spiritual personality and value position of the property right among other rights, we identified exemplification of the property rights driven both by the human’s natural and ethereal needs by comparing and studying the viewpoints about property right fundamentals in Islamic and western laws.

Where the parliament re-enacts a law which is valid, there will be two different laws with the same content. Yet it does not enact the same law. This manner of legislation has many problems: if one of those laws is repealed, what happens to the other one? Can all those laws be repealed? Positive response is approvable by logic of norms and rules of law because the concept of law does not correspond with subjects such as statute, section and sub-section and so on, but it corresponds with the function of law. Therefore, postulation of the validity of abrogated rule or perception by citing another section result in inanity of legislator’s act in repealing law. In addition, if the legislator amends a law deficient and declares that all conflicted laws are repealed, there might be a challenge; judicial orders cannot distinguish any contradictions. Also re-enacting desuetuded law is not a good order of legislation. But high courts should condemn applying laws in any circumstances.