مجله مطالعات فقه و حقوق اسلامی
پیاپی 10 (بهار و تابستان 1393)

Environment, in juristic analysis, is among the values that their protection, in the frame of religious purposes, is necessary and confrontation with any threats against them is obligatory. The preparation and continuation of public interests which are purpose of divine law, classify into three levels of Necessities, Needs and Improvements, so that each one is somehow correlated with protecting environment. Maslahat (Public interest) is believed to be the protection of religious purposes and sadde zarieh (Prohibition of evasive legal device) is thought to be the prohibition of detrimental behaviors to legal public interests. Accordingly, Maslahat and sadde zarieh are considered as two theoretical basis of environment evaluation and repulsion of corruptions and harms from the environment. These theories that evidently relate to the rules such as “no loss” can be, on the whole, legal basis for providing the comprehensive and stable national system concerning environment, and Islamic support for active participation in regional and international programs about environment.

The holy legislator, and following it the lawgiver of the civil law of Iran, in the 1106th article, binds the husband to provide the costs of living (Nafaqah or Alimony) of his wife. Lawgiver in 1108th article stipulates that this binding is instead of wife’s commitment to do her marital duties and specifically total submit to the husband. From the other side, today, the employment of wife has become a prevalent issue in different societies to the extent that a considerable portion of women either their employment have precedent for marriage or they reserve “employment right” for themselves as a clause in their marriage contract or with later obtainment of (husband’s) approval. This research turns around the question that “Does wife’s employment -with approval of husband- lead to the forcible drop of the whole or a part of the alimony? Does the condition of dropping the whole or a part of the alimony with the husband’s approval instead of wife’s employment, have the capability of containing in the marriage contract? This paper, in order to answer above questions, studies and criticizes the views and proofs of jurists by virtue of common analysis of “total submit” and independence of alimony from submit and also the rightfulness of alimony; and has concluded that wife’s occupation would not result in forcible drop of alimony, but containing the condition of drop of the alimony drop in the contents of marriage contract is possible.

The basis of civil liability of legal authority and official is important matter in Civil Liability Law that embracing complex and difficult subjects. Including theories which can propounded as the basis of liability of legal authority and official is Theory of Negligence. Therefore, it must generally study that what is the basis of liability of legal authority -in issuing of order- and official -in execution of it? If it is accepted the theory of negligence as basis of civil liability of legal authority and official, what are the limitations of above- mentioned theory. In these cases, is not the appearance of their civil liability depending on committing the negligence? In answering these questions, it is to say that the basis of liability of legal authority and official is general rule of negligence; unless in some special cases - i.e wasting and indirect causation - element of negligence is not required in realization of civil liability and yet it is considered as exception in the mentioned rule.

Sometimes, government by taking the political and economic procedures, causes currency depreciation and as a result inflation, and inflicts damages on different groups of community because of depreciation of financial properties and purchasing power. Guarantee of agents and persons responsible for currency depreciation and inflation is including subjects that jurists and lawyers hesitate and disagree with it. In this paper, it is proved that in case of realization of guarantee conditions, government is liable for damage resulting from its detrimental actions and decisions, and obliges to compensate it. Since corporate bodies, in other than those cases appropriated to human nature and essence, like real persons, included in any right and duty; thus basics and reasons about the guarantee of real persons generalize the government guarantee of compensation resulting from currency depreciation. Rules of equity, sanctity of Muslim property and public order as the public basics, and rules such as wasting, no loss and being the cause are considered special basics for proving this kind of loss compensation and are referred to them. On the basis of findings of this research, if government, by actions such as fiduciary and without expertise issue of banknote or by making political disputes and initiating internal and factional divergences, causes the economic problems, and as a result, currency depreciation and cause a loss to people, is guarantor and have to compensate the loss.

Breach of contract, if it be fundamental, almost in all legal systems of world (national or extra-national), is cause of termination right for the other party. But, in the Iranian legal system, the famous opinion with the same criterion from decrees of act term is tended to theory of compulsion, and the termination is not accepted expect on the assumption that compulsion has not been possible and the obligation has not been executable by others with the expenses of the obligators. Considering the fact that the legislator does not speak of the necessity of compulsion in the chapter on the contract effects and on the time of stating the sanction of infringement of contract, and, considering the fact that the analogy of obligations concerning the act term -because of being secondary- with the main obligations is not correct, and considering some legal articles on certain contracts and some jurists’ opinions, specially the views of some contemporary jurists, one may show principle of primary termination in the Iranian legal system, too.

Since 1362, according to prescription of documents and properties organization, free possession condition to an extent of half of husband properties for wife, contained in formal marriage contract and almost all of couples resign and accept it. But from very beginning, it is hesitated about this lending essence that enters into Iran’s legal system with juristic framework, for the reasons such as being unrecognized and some considered it void, without investigating reasons of its correctness or falsity and studying its qualities analytically. This paper attempts to study qualities of mentioned condition from the aspect of legal nature, suspension, necessity, to be consenting, to be unknown and reparative-punitive nature; and after expressing the reasons for its invalidity and criticizing them, proceeds to support the reasons of its accuracy. Of course extensive power of judge in deciding the extent of condition subject and obscurity of domain of properties containing in it, reduced its effectiveness and necessitate some reformations in it.

Since a long time ago, the question of civil liability of physician towards a patient has been considered by legal thinkers carefully; but a point worth deliberation is those instances that the physicians are acquitted and observing the instances, it is not regarded guarantee for them. The legislator supports the physicians and excuses them from guarantee and civil liability under the certain conditions, in order to protect the social interests and safeguard the entirety of corporeal personality of individuals. Obtaining the acquittal from the patient, presence of forcible strength, patient act on the refusal of treatment, carelessness of the patient, urgency, observing the governmental disciplines and lack of causality relation between the physician act and incoming loss are factors that studied and considered as removal reasons of civil liability of physicians. Condition of irresponsibility requires only the removal of liability based on the rule of danger and establishment of dangerous milieu, and such condition on the assumption of major or intentional offence is against the public order, and on the assumption of commitment of offence as a result of indiscretion, carelessness and non-observance of governmental disciplines, the physician act will be desirable affair depend on his inclination and will, too. But under the conditions that mentions in this paper, in view of accepting the theory of assumption of offence in the new statute and considering this matter that acceptance of mere liability of physician toward the patient, is accepted by well-known Shi’ite jurisprudents, and the legislator has deviated from such viewpoint in the present law and modified such condition; the physician will be exempted from civil liability, and his action will not be followed guarantee, so that it will be followed displacement of burden of proof.

From one perspective, evidences in proving the claim in law are divided in two groups: persuasive and imposed evidences. Persuasive evidence is the evidence that judge has complete authority in accepting its contents. It affects in proving of claim only if the judge has convinced to its contents and has believed to its purport. Imposed evidence is effective in proving of claims apart from the judge’s belief; that is, the judge is bound to verdict on the basis of it, even if he has not been satisfied the imposed evidence. The concept of being imposed of evidences is related to judge’s belief and persuasion and the belief is one of the elements of realization of knowledge, which its formative foundations and quality of its establishment is studied in the philosophical issues such as theory of knowledge or epistemology. This paper criticizes the nature and concept of imposed evidence by using epistemological basics concerning the basis of belief, and acknowledges that this concept cannot be accepted and affirmed according to principle of symmetry in epistemology.

In this paper, the authors after assuming the kinds of imprisonment and temporary detention as a safeguarding and precautionary action on the human and god right, at first, consider some individuals rights consisting the financial and bodily rights, and then, contrary to the famous shi’it jurists believe that arresting persons claiming insolvency isn’t permissible, and criticize the reasons of agreeing persons. Then they claim that on the charge of theft, according to the evidences, it can’t arrest the accused; and in the continuation, they allow temporary detention for accused of wilful murder, and think that the reasons of opposing persons fail to prove their claims, and demonstrate the evidences in addition to the evidences of agreeing persons. Concerning the charges of assault and battery, authors in agree with shahid avval and mohaggeg-e-sabzevari, believe that the accused can be arrested temporarily, and in their view, the proofs of some who don’t agree with temporary detention is imperfect in proving their claims, and criticize them; and in addition to proofs of who agree with being permissible, they bring about more documentary evidences, too. On the charge of manslaughter, they forbid temporary detention. And eventually, on the charge of criminal act in divine rights, in addition to lacking of reasons for legitimacy of temporary detention, they provide the evidences indicating it is not to be allowed.