پژوهشنامه حقوق اسلامی
پیاپی 26 (پاییز و زمستان 1386)

Study of theoretical problems of legal justice necessitates the exact explanation of the concept of justice which in turn is one of the most significant issues concerning the philosophy of ethicsolaw, and politics. Thus, researching into the concept of justice ranks first among all theorizings on justice.This in turn requires studying the genealogy of law through which the precise perception of time, the quality of emergence of "the concept or discourse of justice" and its effect on the foundations, sources, and objectives of law may be reached. Although the value of justice nowadays is considered as axiomatic, and generally received, it should be noted that this concept has also been, like many other concepts, once absent from the social life of people. However, following the developments occurring in the life style and thought of man, this concept entered his mind and language. In other words, justice as a concept or discourse is a and affair. In can hardly be said that justice is a beyond – temporal, beyond – special, and meta linguistic issue. The present article seeks to study the historical process of the formation of the concept of justice discourse in the mind and language of mankind.

According to article 264 of Iran’ Civil code, ownership of debts happens through the extinction of obligations. The present article deals first with the concept and nature of the ownership of debts, then with its origin and conditions, and finally with its effects in the four legal systems of Iran, France, Egypt, and Shiite jurisprudence. Adopting a comparative approach, the article raises the strong points as well as the weak points of each system concluding that the Iranian legislator is in need of rectification and expurgation of regulations concerning the ownership of debts.

Justic is among the primary and foremost concerns of human being which has preoccupied him in various fields of life and numerous aspects such as Philosophical, theological political, woral, and legal justice. The present article gives an analytical and very concise report of legal justice, especially the relation of law and justice from Islamic perspective. However, easy and reasonable access to this ideal requires dealing with the relation of law and justice from other perspectives.Thus, the prelude discusses the position of justice in the philosophy of law. The main introduction explains justice as the concern of legal schools followed by the perspective of the schools of natural law and positivist law concerning justice. Finally, having raised the Islamic outlines of justice, the article deals with the features of legal justice in Islam and its effects. The article concludes with the point that although justice is definitely one of the foundations and rather one of the objectives of Islamic law, it is not the only foundation or the sole goal of this system. Thus, it is necessary to attend to other foundations and goals while evaluating haws and rules.

The present article deals with the foundation of environment civil responsibility in Islamic jurisprudence and Iranian Law. The existence of a common earthen globe creates common concerns for the people of the world requiring an ever – increasing coordination in this regard. One of the instances of coordination is unanimity in terms of the foundation of environmental civil responsibility. There is absoility for doing environmental damages in many European Countries, thus reducing highly the measures of interest seeking bodies which are destructi9ve to environment. However, the practical procedure of Iranian courts is responsipility based on fault as a result of which a large number of environmental cases would be failures and in case of success, they are not capable of preventing others from the destruction of natural gifts. Relying on the potentials of Islamic jurisprudence and Iranian law, the present article concludes that foundation of environmental civil responsibility should rest on the theory of absolute liability rather than that of fault.

Modern economy has adopted that obligation is commercial as a valuable property, and should not be limited to the relation between the creditor and the debtor. Iranian law has adopted two mechanisms i.e. the contract of guarantee and draft for the transfer of claim. On the other hand, article 292 of the civil code has recognized the new term of "novation" and immediately after that the article 293 states that in the process of novation, guarantees of prior debt would not extend to subsequent debt. Since the Iranian legislator of the Civil code has taken the articles 1271 and 1272 of the French Civil Code into consideration, while writing the above – mentioned articles of Iranian Civil Code, and the French law requires creation of a new obligation following a movation, it is quite natural that the guarantees of prior obligation are extinguished as a result of substitution are extinguished as a result of substitution. However, due care dictates that the clauses II and III of article 292 of the Civil Code do not indicate a real novation, but introduce guarantee and draft confirming the transfer of obligation rather than its substitution. On the other hand, the dominant view of Shiite jurisprudents to which Iranian Civil Code owes itself recognizes the extinction of the guarantees of debt by guarantee and draft. In our opinion, the legislator – while writing the article 292 of the Civil Code – has wittingly taken the form from the French Law and has replaced the unfamiliar institutions of "novation by substitution of debtor" and "novation by substitution of creditor" by the contract of guarantee and that of draft which have proved to be very helpful in practice. In the legal systems of different countries, the two legal institution of novation and transfer of obligation are usually recognized as two distinct entities having their own specific effects. However, In Iranian Law, transfer of debt and novation have the same concept and effects. It is noteworthy that it is possible that identical legal entities have their own effects in each state. For instance you may compare the institution of movation in Iranian law with that of novation in other legal systems in terms of its nature and effects.

The effects of fulfillment of obligations are categorized into two classes: the common effects in all types of contractual obligations and specific ones in some of them. The most significant effect out of all common ones it the exoneration of the principal one under obligation and his extinction of obligation, so that other effects are mainly subordinate and their realization depends on that of the principal effect. Thus it can be said that exonerating the principal one under oldigation from obligation and debt, fulfillment would lead to many other effects such as the extinction of subordinate obligations, liability of guarantors, extinction of the rigw of lien, release of escrow and its securities. On the one had, fulfillment changes the natural debt to legal one. On the other hand, it proves the very obligation and is indicative of its earlier existence. This effect is achievable by a posteriori argument and a specific predominant behaviour among the reasonable of the world. The specific effects of fulfillment in certain contractual obligations are also noteworthy. Transfer of ownership in contracts in which the object of transaction is general, and in real contracts as well as the sale on the condition of the reserve of ownership on the one hand, and extinction of the right of cancellation (choices) as well as prevention of its realization on the other hand are among the significatnt effects of certain contracts. There fore, may classify the effects of fulfillment into three categories of "major and minor", "common and specific", and "positive and substantials. This variety and frequency in effects which is sometimes surprising is not seen in any other legal institutions. Thus fulfillment in contractual obligations is considered unique comparing to other legal institutions.

Prevalence of AIDS in recent years on the one hand, and lack of a relevant rule for criminalization and punishment of behaviours transmitting it have required paying a attention to criminal institutions available. In Iran, certain labels such as transimission of STD, murder, quasi – intentional homicide, manslaughter, attempted murder, exerting intentional assault and battery, and infringement of public security, depending on the case seem applicable. However, such labels as threatening against public health do not seem appropriate. In canadion law, among various labels of attempted murder, assault, public nuisance, etc. That of criminal negligence is cuounted a the most proper one for behaviours transmitting AIDS.