نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دوره دکترای تخصصی حقوق خصوصی، گروه حقوق خصوصی، واحد یزد، دانشگاه آزاد اسلامی، یزد، ایران
2 استاد یارگروه حقوق خصوصی، دانشکده علوم انسانی، دانشگاه شاهد، تهران، ایران.
3 دانشیار گروه حقوق اسلامی، دانشکده علوم انسانی، دانشگاه یزد، یزد، ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Judicial Modification through fundamental change of circumstances is one of the issues that has attracted the attention of lawyers from many countries. The need for the legislator to accept this establishment, especially in countries which have fragile and unstable economy, is extremely tangible. Our country can not be excluded from this rule in the light of cruel sanctions and unbridled inflation, as some of the changes and, consequently, the difficulty of implementation, have been such as to affect short-term contracts and cause immense and unconventional losses for committed person. In such a situation, in case of the absence of modification by the legislator and the parties, the judicial system should be held accountable. But the obscure point is the question that is being asked whether the judge can interfere with the purpose of enforcing justice in the contracts concluded between the parties. In addition, if the answer is positive, on which legal and Jurisprudential basis this intervention can be defended? The findings and results of this research indicate that in the internal legal system the legislator has removed the judicial modification from the judge, but the existing legal vacuum can not be regarded as a permit for non-judicial review of the judiciary because the legislator has allowed the judge to act based of Judicial Ijtihad. Therefore it seems that in the internal legal system, the judge can return the commutative justice to the contract, on the basis of rules such as No-damage, Denial of hardship, and also theories of Implied Condition and Accidental Loss. Additionally in the Egyptian legal system, the investigations have confirmed that the Egyptian legislator has accepted the judiciary modification based on the theory of al-Hawadath-al-Tara'ah and 'Amalqal', in the form of articles 147 and 129 of the civil code of that country, while the strong enforcement guarantee has been given to it.
کلیدواژه‌ها [English]
)
