فصلنامه حقوق اسلامی
سال یازدهم شماره 2 (پیاپی 41، تابستان 1393)

In an absolute way, the Article 1319 of Civil Code says that ‘No effect will be given to the evidence given by a witness if he withdraws his evidence’ and avoid explaining the effects of such a withdrawal in more details. In jurisprudence, to explain the effects of witness’ withdrawing his evidence, jurists have tried to expound validity of such evidence and the judgment made on its basis as well as responsibility of the witness who withdraws his evidence. To do this, they have discussed various scenarios. Because of brevity and silence of Law about the subject in question, solutions mentioned in jurisprudence (fiqh) may be referred to on the basis of the Article 167 of Constitution and the Article 3 of Civil Procedure Code.

One of the relations depicted by jurists between person and property and regarded as a kind of ownership is the right of possession. For this kind of relation, many instances have been mentioned. For example, we may mention the right of warriors to war spoils before dividing, the right of legatee before accepting the testament, the right of heirs to reject the testament concerning more than one-third of inheritance, and the right of preemptor to the property subject to preemption. In such cases, there is some proprietary right which may, if willed, result in ownership. There are some dispersed discussions in juridical and legal texts concerning this subject. The present article seeks to organize such discussions and study the nature of this relation and its instances and rules. According to the author, right of possession is some of kind of proprietary right which has some effects of ownership; before decision made by he who has such a right to take possession, however, it is not possession in the real sense of the term.

As a provision to enforce performing Parliament members’ duties, parliamentary immunity has been recognized in the Constitutions of all countries. In Iranian Law, parliamentary immunity has been institutionalized in the Article 86 of Constitution; and, internal regulations of Islamic Consultative Assembly as well as inquiries sent to Guardian Council and their replies have helped to strengthen this principle in Iranian Law. Though there is no doubt in the principle of parliamentary immunity itself, there are some ambiguities concerning the scope of this principle in Iranian Law. Parliamentary immunity of the members of Islamic Consultative Assembly is divided into two categories: formal and substantive. In formal immunity, there are some limitations to prosecuting or arresting membersof Islamic Consultative Assembly. In substantive immunity, however, there are some limitations to convicting them because of performing their duties as members of parliament. Having divided parliamentary immunity into substantive and formal immunities, one may conclude that positive and substantive immunity of members of Islamic Consultative Assembly is an absolute immunity, their personal and substantive immunity, however, is not absolute. To sum up, it may be said that, in Iranian Law, the principle of ‘limited substantive immunity’ has been accepted. Formal immunity of the member of Islamic Consultative Assembly, on the other hand, has a more extensive scope and is less limited.

To establish natural guarantee, the Article 745 of Civil Code includes a rule which is the same as included in the Article 740 concerning contractual guarantee, i.e. responsibility of guarantor (kafil) to produce the guaranteed (makful) or to pay his debt. In the Article 434 of Penal Code, however, the legislator has mentioned ‘obligation to deliver’, ‘imprisonment of he who has helped the escapee to escape’, and finally ‘payment of mulct. Here, the above rule is discussed in terms of its foundations and scope. Concerning scope, what is discussed includes ‘training of escape’, ‘intervention [in favor of] incapacitated’, ‘good intention’ or ‘belief in non-indebtedness’. When he who has helped the debtor to escape is forced to pay the debt, is he entitled to refer to the debtor? What is the basis of natural guarantee? Because there are various foundations such as the rule of ‘wasting’, the rule of ‘causation’, the rule of ‘no harm’, the rule of ‘responsibility about others’ properties which one has in his hands’, the scope of natural guarantee will vary. According to some foundations, the article covers responsibility of the incapacitated and his trainer as well; according to some other foundations, however, they cannot be taken as being responsible. On the other hand, that the debtor has escaped cannot be taken as a permission to repay the debt or to refer [to the debtor].

One of the important issues in Islamic private international law is ‘nationality’ and the relation between ‘person’ and ‘Islamic government’. The relation according to which ‘person’ is regarded as a member of population governed by this government creates rights and obligations for ‘person’. Though, in customary law, nationality is based on the relation between ‘person’ and a certain ‘government’ and its scope is specified by geographical borders, in Islamic rules and laws, nationality has a more extensive sense and its basis is acceptance of Islam (nationality based on faith) or acceptance of Islamic government (contractual nationality). In other words, according to Islamic rules, those will be regarded as citizens of an Islamic government who have converted to Islam or accepted Islamic government and its rules and laws through a contract they have concluded with the leader of Muslims or one of Muslims. This has caused some differences between the nature of nationality according to Islamic rules and laws on the one hand and what that is included in customary law on the other. In this study, the authors try to study ‘nationality’ which has not been so discussed in works of jurists so that it may be clarified who are regarded as citizens of the Islamic government according to Islamic jurisprudence.

According to the Constitution, the legislative power is one of the governing powers and among the main foundations of the system of Islamic Republic of Iran which never should be paused or stop to work. For this reason, election of Assembly should be held in a safe and secure environment far from any tension so that its correctness may be ensured and, consequently, people’s governance may be realized. War and military occupation, however, create crises which, to be sure, overshadow the physical and psychological security of country and in particular war regions or occupied regions in the period of election. Thus, the Constitution has granted the President of the Republic the authority to propose delay election countrywide or in occupied area for a specified period of time to the Islamic Consultative Assembly. If this is approved by three-fourths of the total members of the Islamic Consultative Assembly, it will be sent to Guardian Council to be confirmed. The present writing discusses various aspects of this issue.