نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشکده حقوق دانشکدگان فارابی دانشگاه تهران
2 گروه حقوق خصوصی دانشکده حقوق دانشکدگان فارابی دانشگاه تهران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The relationship between the procedural rules of transactions and the powers of the legislator within the framework of Imami jurisprudence is an important issue in contemporary jurisprudence and private law, especially in cases where the requirements of public order and social interests lead the legislator to enact laws that are apparently in conflict with some jurisprudential understandings of transactions. The main question of this research is whether the legislator can make changes to the procedural rules of transactions by relying on the principles of Imami jurisprudence and in the form of a government decree. This research has examined the theoretical foundations of this issue using a descriptive-analytical method and relying on jurisprudential and legal sources. The findings of the research show that the arguments of the guardianship of the jurist and a government decree are not specific to mandatory rules, and therefore, there is no obstacle to their inclusion in relation to procedural rules. Accordingly, if the public interest so requires, the legislator can intervene in the legal status of transactions and their effects. This approach is particularly important in the area of immovable property transactions and the necessity of their official registration, because legal experience has shown that merely requiring a duty is not sufficient to achieve legislative goals, and sometimes changing the legal effects of a transaction is more efficient. Consequently, changing the legal provisions of transactions within the framework of a government decree and in compliance with the principles of Imami jurisprudence is defensible and in some cases necessary.
کلیدواژهها [English]