فصلنامه حقوق اسلامی
سال ششم شماره 2 (پیاپی 21، تابستان 1388)

The present article has been written about three themes: doubt about the principle of confinement in marriage; impact of the husband's insolvency on the right of confinement, and importance of the impact of installment of dower money by the court on the right of confinement of the wife.Since one of the conditions which should be fulfilled so that the right of confinement may be realized is that the dower money should be paid, a question arises: "under such circumstances, if because of inability of the husband to pay the dower money in total the court has issued a verdict to pay it in parts in some period of time, will the right of confinement of the wife be rendered null or is it still valid?The appearance of the Article 1085 of the Civil Law, the explicit doctrine of the Legal Office of the Judiciary Power, and the precedent of the Supreme Court as well as verdicts of some contemporary jurisprudents show that the right of confinement will remain valid even if the dowermoney is paid in installments. But, it seems that, in the case that the court orders to pay the dower money in installments, invalidation of the right of confinement of the wife is more consistent with the rules of justice and spirit of shariah. This is in agreement with juridical opinions of some contemporary jurisprudents as well.

On the one hand, to deny freedom of the accused and imprison him as long as preliminary investigation is in process or for a part of this period by the competent legal official (which is called "temporary detention"), is against the accused's right of freedom; and, it may be justified to investigate, prevent the accused from escaping, and avoid infringement of the victim's rights, on the other. This legal point may be studied on the basis of Islamic principles and from a juridical point of view. Based on the principles and rules of the Islamic jurisprudence and juridical verdicts, the present article tries to re-study arguments for and conditions of temporary detention.

In the system of human rights, State's commitment to observe main norms is an absolute, unconditioned commitment covering all States and individuals. The universal nature of State's commitments concerning human rights means that their commitments do not depend on interactions and counteractions. State's commitments to observe human rights are to support normative public order which does not depend on observance of some other parallel or similar commitment by some other State. The particular nature of commitments concerning human rights has a direct impact on conditions which may be posed for them. About the extent of the impact of universal nature of State's commitments to observe human rights on the issue of condition, the following questions may arise: "Does this nature influence agreement or disagreement of States about the condition?", "May the legal system of conditions be applied to commitments concerning human of human rights, whatever the nature of such commitments may be?", "Or, is it necessary for such commitments to obey some particular system of conditions?", "Which role could and should the supervising institutions such as the Human Rights Committee play within the scope of condition?", "May some particular right inferred for such institutions from the particular nature of commitments concerning human rights?"In the present article, the author explains the universal nature of State's commitments concerning human rights, and studies their impacts on the issue of condition.

In the Islamic Penal Code, it has been accepted that the immature ones are not liable. At the same time, however, in certain cases for them some punishments have been considered which is inconsistent with the absence of penal liability of such individuals.Also, there is no difference between punishments for those who have newly matured and the adult ones; nor has their intellectual growth to understand punishment been taken into account to determine the punishment. In this respect, the Islamic penal code may be criticized; in the bill of the Islamic penal code such objections have been considered and the legislator has taken some useful actions to eliminate them.In the present writing, such cases are studied together with their juridical bases as well as hadiths concerning them.

The Act of the third party insurance was amended after 40 years.Though late, this promises a striking development in the field of social responsibility and compensation. Clarification of the concept of possessor of policy, extension of insurance coverage, floating of the responsibility of insurer, elimination of the statute of limitations, calling the insurer to hearing session, acceptance of the policy as a guarantee, immediate payment of at least 50% of the approximate blodwyte to the victim (predicted in the Article 16 of the new Act) as well as a professional commission to resolve debates may be regarded as being among privileges of this Act.But, it faces some challenges as well. Ambiguity in the notion of owner as one who possesses policy: whether owner is the one who has an official document or the one who has some ordinary written promise or a proxy may be regarded as the owner. Does the content of the Clause 3 of the Article 1 require a legal judgment to be issued? In cases wherein the blodwyte determined is much more than the costs borne, should it [blodwyte] still be paid? The insurer's responsibility is limited to the amount mentioned in policy; now if the insured party was sentenced to pay more than that amount, who shall pay for the cure costs: the insurer or the insured party? When called to the hearing session, is the insurance company regarded as defendant or as an informed party? Of what influence is communication of the verdict to the insurer? May he protest? These are some examples of points which should be clarified; and, it remains to see how the judicial precedent reacts.

Misuses made of the dominant economic situation are among pivotal problem of the laws of competence. In the present study, the constituents of the dominant situation, concept and nature of misuses made of it,standards to identify this anti-competitive act will be discussed and studied on the basis of comparative studies and economic-legal analyses. Results show that misuses made of the dominant situation and the similar legal concepts will vary in different respects in different legal systems; and such differences reflect differences between systems in terms of goals, principles of the laws of competence, and economic policies. In most countries, identification of the dominant economic situation involves determination of an institute's share of the market,obstacles to its entering [the market], ability to act independent from three factors of the market, as well as other factors. Though standards of evaluation may be different in various systems, there is some typical and objective concept for misuse, and the actual or potential impact of the conduct is paid more attention to than reasons and motivations to commit that act. Anti-competitive, exploiting, and recompensing conducts are among the most important instances of misuse.

From among various ways of payment, letters of credit are widely used as a reliable and secure way of payment. In spite of attractions of this way of payment, having chosen to use letters of credit, the international merchants have faced many problems. This difficulty becomes clearer when the standard of correspondence of letters requested by Banks are taken into account; and this, in turn, increases the risk of non-payment for goods and services provided and may be of profound influence on the international commercial contracts. According to a global study, more than 70% of the letters presented to banks are not accepted by Banks in the first stage. This shows that the rules governing application of the principle of correspondence are not sufficiently clear.For this reason, the author tries to analyze the principle of accurate correspondence of letters in such a way that efficiency of LCs may increase. The present study covers all parties of the operations on LCs in general, and discusses dictations errors and mistyping in LC's in particular.