نشریه آموزه های حقوقی گواه
پیاپی 1 (پاییز و زمستان 1394)

Civil law in each country states the basic rules governing the private relations of individuals in the society and also affects other branches of law in practice. Hence, it has a long history in different countries and less is undergoing major changes as the main body of private law. Study of the formation and evolution of countries’ civil code helps to use their legislative experience and understand the strengths and weaknesses of the domestic law. Among Islamic countries, the Legislative Movement in the scope of civil law firstly commenced in Arabic countries. Hence, this article examines the emergence and evolution of civil law of Arabic countries, its origins, and characteristics. Then, by referring to the two major currents in the movement of civil legislation in the Arab world, the general orientations of each one are investigated and outlook of civil legislation in the light of Islamic law as a main source and along with the time requirements is drawn.

Contrary to Traditionalists and Sunni Islamic jurists, the Shiite Principalists have chosen a moderate approach in simultaneous use of wisdom, narration and common law and they believe in jurisprudential management, even though, there are divergences regarding the degree and the reason of its validity. For example, regarding the life of the Wise, some people know it as inherent argument and regards being loyal to it as a religious duty and others regards it as minor part of legislator›s confirmation. The modern principalists Islamic jurists have taken long steps to develop managerial Islamic jurisprudence of the society. Discussing the issues of ”the development of topics” and ”edicts issued by the highest authority in the land” and ”Leisure zone” and ”the separation of transactions and acts of worship”, Imam Khomeini and Shahid Sadr are prescribing the possibility of the use of wisdom and common law. Proving the possibility and desirability of the use of wisdom and common law in Islamic Jurisprudence and in legal analysis, the adjustment power and the Islamic Jurisprudence and law management of Shiite have been approved more for different societies and ages.

The immunity of attachment of state-owned properties is known as a general principle; although, it can be observed that some actions are proposed in order for attaching the properties of state companies or institutions. The question dawns on mind is, are the properties of state companies and institutions embodied the state-owned properties’ immunity presumption? Is it feasible to attach the state-owned properties because of the obligations of state companies? As there is a close relationship between the properties of state institutions and state-owned properties, the issue of attaching these properties depends on legitimacy of bringing an action against the government. In addition, the recognition of the persona moralist of this institution is upper hand since provided we consider a persona moralist for these institutions, attaching the stateowned properties will be illegitimate, and it will be responsible for its own damages by itself. It sounds in the international arena, the activities of state companies suggest the acta jure gestionis, and hence they will not embody the state-owned properties’ immunity presumption. Also, the state-owned properties due to commercial obligations of state companies and institutions are attachable.

Fault can be defined as not behaving like a reasonable man and plays a great role in tort(s) law. General rules of tort(s) law, whether based on fault or not, fall under ”fault-based liability” or ”strict liability”. While fault-based liability is accepted as a principle in tort(s) law of Iran and England, strict liability is an obvious exception to it. This principle in torts law of England, unlike Iran, has not been considered explicitly but can be extracted from case study of different kinds of torts. To sum up, besides differences in legal families of Common Law and Civil Law, similarities in general rules of tort(s) in Iran’s and England’ law are not refutable. However there are disparities in the way these rules are extracted.

When someone accepts an obligation and bears its responsibility, it’s expected that the other party would also fulfill his/her obligations. When one of the parties refuses to perform the contract on their own volition, the prevailing theory in Iran’s law is that the judge, by the promisee’s request, will force the refusing party to deliver goods or perform the contract’s obligations in proportion to the issue. If the compulsion on the contractual party was not effective, the beneficiary of the contract could perform the contract’s subject at the promisor’s expense in the contracts, which do not rely upon people’s personalities, and if all these tricks did not work, it would be the turn to rescind the contract. However, in most legal systems of the world the right to force the promisor by the promisee and the right to rescind the contract are beside each other. In Shiite jurisprudence, there are firm and cogent views that prove the right to rescind the contract along with the right to force the promisor to perform the contract for the promisee in the case of the promisor’s refusal to perform the contract. There is no stipulation of rules regarding this issue in Iran’s Civil Code. In fact, there is no general rule in this respect, but this matter has been mentioned in the conditions chapter and some legal articles. Most Iranian lawyers are inclined to the Linear Theory (first compulsion then rescission) in the course of performing a contract, but the Transverse Theory is also provable based on the generalities of the Civil Code.

The broadcasting organizations owing to their role in the ground of providing the public accessibility to these works and controlling their repetition has been supported by law. In this research, by utilizing the descriptive analytical method, we are following the belonged rights, probable exceptions to these rights, and their remedies; moreover, in the ground of municipal law, we deal with the prospect of Iran’s law in this issue and the adaption of acts with international deeds. In the interest of obtained results, the broadcasting organizations, todays merely have the right of issuance of authority or prevention of repetition, stabilization or, in rare situations, spreading the recorded versions, and informing with all types of sending programs. In our country, the draft of the bill of the comprehensive act of supporting the literary and artistic ownership rights and related rights has codified on the basis of sample act, WIPO, on which it is expected that the supporting level of these organizations increases to the criteria of World Intellectual Property Organization.