Jurisprudential-legal methods to solution the silence of the law in relation to the incapacity, justice and betrayal of the guardian

The silence of the law in different areas of the legal system, and especially in the context of emerging issues, is obvious. In the field of civil law, due to the principle of the rule of will and the possibility of agreement of the parties to the dispute, the silence of the law creates less problems for judges than other areas where the possibility of agreement of will is more limited. One of the spaces in which the silence of the law poses a great challenge to the dispute resolution authorities is the will.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Despite the fact that a long time has passed since the enactment of the Civil Code, and at the time of the drafting of this law, its designers have specifically considered the rules and regulations of jurisprudence. But in many cases, the legislature has taken a position of silence on the incapacity, justice and betrayal of the guardian.

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

In written law family systems, there are two main approaches to law making: The French approach in which the text of the law is designed in detail and with popular literature; The second is the German approach in which the text of the law is technically and concisely designed and approved. In the context of the subject of the present study, it seems that the legislator, considering the rich jurisprudential literature, has chosen a combination of the above two approaches. In other words, the Iranian legislator has a short and popular literature in this field. As a result, in order to eliminate the cases of silence of the legislator, appropriate jurisprudential and legal solutions can be provided separately.