ضرورت ابلاغ اراده و حفظ مصلحت در اعمال حقوقی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
نزدیک ترین نظریه به تولد عمل حقوقی در عالم اعتبار و تأثیر اراده، رهیافت اعلام اراده است. این نظریه در نظام حقوقی ایران پذیرفته شده است. موارد استثناء شده از این اصل، از نظریه وصول پیروی کرده اند. در وضع قاعده و قانون، بیش از هر چیز حفظ تعادل بازار اهمیت دارد. قواعد حقوق قراردادها اغلب برآمده از عقل سلیم رایج در بازار هستند که گاه به امضاء شارع نیز رسیده است. این قواعد و مقررات تا جایی که حلال خدا را حرام و حرام خدا را حلال نکرده، به پشتوانه رواج عرف و طبع عقلا تعریف و تبیین می شوند. در تعارض میان ضرورت تأمین مصلحت فردی و قاعده حاکم بر اجتماع کدام یک رجحان خواهند داشت؟ آیا می توان مصلحت را ترجیح داد؟ آیا با استقرا در مستثنیات وارد بر اصل، رد پای مبنای مورد حمایت واضع قابل شناسایی است؟ هدف از این نوشتار، بررسی امکان توسعه دایره مستثنیات است. تشخیص مبنای مصلحت اندیشی قانون گذار در خروج پاره ای از افراد از شمول اصل کفایت اعلام اراده، کلید معماست. ریشه مستثنیات وارد بر اصل کفایت اعلام اراده، به مصلحت تضمین حقوق مخاطب و ثالث برمی گردد.The Necessity of Communication of Intention and Maintenance of Expediency in Legal Acts/Judicial Acts
Legal will is the cornerstone of private law, as legal actions manifest the sovereignty of will in the world of credit. Parties enter into agreements with their free and informed wills, and upon the fulfillment of the Intent to Authorship, they become obliged by its effects, in accordance with the principle of freedom of will. In most cases, the distance between the authorship of will/intention and its realization/fulfillment can be ignored, as Article 191 of the Civil Code clearly states that a contract is fulfilled as soon as it is concluded, provided that this intention is compatible with the external intent that indicates it.
When the contract is concluded in the world of credit, the will takes effect in the outside world. The will is realized when the inner authorship of will/intention is connected to an external implication in the world of matter and persuades the wise with decisiveness to identify its effects. In all legal systems, the condition for the effect of the will is to identify it in the world outside the mind and verify its occurrence in the common range of the parties' will in the agreement. The Intent to authorship becomes effective in the outside world when it is expressed. The identification of the influence of will in remote contracts and unilateral legal acts affecting the addressee of
unilateral will is clearly visible. The moment of identifying the influence of the will has been a subject of different opinions in legal systems.
The closest theory to the time and place of legal action in the world of credit and the influence of will is the approach of the declaration of will/expression of intention. This theory is accepted in the legal system of Iran. In some cases, the legislator has deviated from this principle and decisively followed the Receipt Theory to govern the identification of the influence of will. This article aims to investigate the basis of expediency supported by the legislator in choosing and applying the Receipt theory in these exceptions. From the legislator's perspective, maintaining market balance is more important than anything. The rules of contract law are often derived from common sense in the market, which is sometimes approved by the legislator. Most of the rules governing commercial and private law have been formed based on customary practices in the Muslim market.
The conflict between the necessity of securing individual interest/ expediency and the rules governing society raises the question of which one will prevail. The legislator's intervention to deviate from common practice helps identify the interests/expediencies protected by the law and the means to protect them. The conflict between customary practices and individual interests is the strongest channel for the legislator's interference in the customary affairs of the Muslim market. This article aims to investigate the possibility of expanding the circle of exceptions to the principle of the sufficiency of the declaration of will, based on common expediency supported by the legislator.
Identifying the legislator's expediency basis in excluding some people from the inclusion of the principle of the sufficiency of the declaration of will is the key to the puzzle. The exceptions to the principle of the sufficiency of the declaration of intent are rooted in the necessity of guaranteeing the rights of the addressee and the third party. In Iran's legal system, the legislator has protected the relevant interests by applying a superior ruling wherever the necessity of providing expediency is demanded. Induction in civil law indicates that in the exceptions to the rule of the sufficiency of the declaration of will, the influence of the will is conditional on the communication of the will to the addressee. It doesn't matter whether the declared will is unilateral or bilateral; as soon as the effects of the will conflict with the rights of the addressee, the will is effective when it is communicated to the addressee. The Receipt theory has a relative superiority over the theory of the declaration of will due to providing the beneficiary with the opportunity to protect/defend his right. The rights protection of the third party or the addressee of the will is the fundamental reason for choosing the Receipt theory to safeguard the interests of surrounding parties affected by the effects of the will.
In the international system, the acceptance of the necessity of communicating the will to the addressee shows the maturity of the Receipt theory in providing commutative justice. The most recent change in the recognition of the influence of the will in major legal systems is related to the 2016 reforms in the civil part of the Code of French Law. By explicitly choosing the Receipt theory, French legislators have taken a fundamental step in harmony with valid international documents and business world requirements. The increasing favor of the Receipt theory is not due to luck and taste; rather, it is due to necessity and maximum support from parties around the will, making it unavoidable.
Identifying the time of influence of the will plays a key role in gathering the interests of parties surrounding the will and providing equal opportunity to protect/defend the rights of the addressee. Additionally, adopting the criterion of the common basis of the examined exceptions is an escape to eliminate the disadvantages of the rule of the sufficiency of the declaration of will in the legal system of Iran. In receiving the offer, notifying the dismissal of the lawyer, notifying the spouse to Revoke FEDYE/Ransom, and notifying the testator of rejecting the testamentary executor, the concern supported by the legislator is the rational necessity of information, protection of the rights of the Incapables, and the opportunity to protect/defend the right. Determining the common basis and resorting to it makes the development of exceptions subject to a specific rule. Therefore, what is developed is the intention supported by the legislator; procrastination is against reason and causes harm. According to the present research proposal, this rule is to preserve the rights of third parties, the opportunity to protect the right of the addressee of the will, and the rational necessity of receiving the will. The governing rule of Iran's legal system is the principle of the sufficiency of the declaration of will; except in cases where rational or customary necessity requires it, the influence of the will is postponed until it is communicated to the addressee.
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