نوع مقاله : مقاله پژوهشی
نویسنده
دکترای حقوق خصوصی دانشگاه امام صادق(ع)
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The Principle of Autonomy of volition (Will Authority) in Modern Roman – Germanic legal system Means as a Originality of Human will (The parties of agreement) for the legitimacy of the obligations and contracts. This is only the will of the parties of obligation that justifies and constructs the contract. If there is the Constraint, this Constraint is legal constraint, that Roots in The public and National will. Law is Appearance of will in General Arena and the Obligation is Appearance of will in Private Arena. This Approach Roots in Consideration of Human as a "Subject" that was Began in Descartes' philosophy and Culminates in Subjectivism of Kant. Kant presents the Human as a essence Rational, Free, Volitional and Brave to use his reason autonomous. Legal Liberalism believes that the free human with his free will is the positioner of Rights and he is the constructer of obligations with his will autonomous. This Approach Leads to Anti-Formalism, Originality of volition, Non-interference of Government in Private relations, volition as a main Element in the obligations et.
However, in Shiite jurisprudence (Imamai fiqhe) the Contract is an Religious Affair and this is the Religion that justifies the contracts (directly or Through vouchsafe the Validity to Rationally Custom). Validity of the Contracts coms from Allah because he is the genuine proprietor of universe and only he can give the Permission of Possession in Property to Servants. This Approach Leads to Formalism and the Originality of the Religion. The main problem of Iran's legal system is that it Attempts to Combine this different approaches. So there is Two types of Articles in Civil law of Iran. The Hypothesis of this Paper Is that The Principle of Autonomy of volition (Will Authority) has not any Compatibility and salubrity with Shiite jurisprudence and Iran's legal system should select between the Principle of Autonomy of volition and Approach of Shiite jurisprudence and should Avoid to Legislative articles Conflicts.
کلیدواژهها [English]
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