پژوهشنامه حقوق اسلامی
پیاپی 29 (بهار و تابستان 1388)

The "La zarar"(no prejudice) rule is one of the most important rules, and perhaps The most important rule of Islamic Jurisprudence. The question which this paper tries to address is whether(La zarar) rule supersedes The situations where no rule exists for compensation of prejudice. Our purpose is to clarify-on the loasis of the evidence of(La zarar) rule, the verdicts of Islamic Jurists, and the exigencies of modern industrial _ societies_ that the said rule establishes a rule namely,it supersedes the situations of no tule.

Reprisal is a mechanism for the owner of a right to vindicate his right without the permission and consent of the debtor or usurper and without referring to the court when he does not have statutory evidence to offer to the courts. Valid evidence and proofs in the Shiite jurisprudence suggest the legitimacy of reprisal. Regulations and conditions of this institution of vindication of rights is raised in the jurisprudential sources and its limitations as well as its permissiveness are clarified there. With application of reprisal the creditor satisfies his right, the debtor is discharged, and the obligation is extinguished. Thus reprisal in legal studies can be raised under the title of extinction of obligations. Since reprisal is a legitimate institution applied in all societies and since its regulations have been dealt with in the Shiite jurisprudence it is necessary that the legislator declare reprisal as the seventh statutory cause of the extinction of obligations.

If the main objective of the rules of civil liability is compensation of material and spiritual damages, the state and the civil servants would not be an exception to the rule. It is possible that granting immunity to the state gives rise to imposition of certain material or spiritual losses to natural as well as legal persons. Is compensation of the losses imposed in these cases or drawing their consent as far as possible obligatory on the state? In case this compensation is necessary, is it the obligation of the political system and the public treasury, or it is the obligation of the state or the civil servant? The present article first defines the concepts related to the topic, and then discusses the foundations of civil liability and those of the liability or immunity of the state and the civil servants according to the Iranian law and the Shiite jurisprudence.

The legal term and institution of alteration of debt is handed down from Romans surviving in many legal systems of different countries. However, there is no trace of this institution in Islamic jurisprudence and law. In the law of Iran this institution is adopted in article 292 of the Iranaian Civil Code. The present article studies alteration of debt in terms of alteration of creditor in the law of Iran aand its difference with the cession of claim. These two institutions wilkl also be compared to the law of Egypt. The first part deals with the concepts, natre, conditions and the consequences of alteration of debt in terms of alteration of creditor. The second part would briefly study the cession of claim as another institution of satisfaction of obligation. The third part is a comparative study of these two institutions.

An improper procedure is being followed for some time in certain family courts. Some of the judges attribute the advent of this phenomenon to the accumulation of legal cases in the courts. These courts refrain from execution of the decision of divorce by mutual consent persuading the applicant, usually the wife, to bring a new petition towards imposing the husband to satisfy the obligations extant in the certificate of incompatibility issued by mutual consent.To vindicate their claim, these judges rely on the letter of the single clause bill of the amendments to divorce law enacted in 1371 in the Expediency Council. They argue that since the legislator has used the word”certificate” in case of the divorce by mutual consent, what is issued is not more than a certificate, and it is not legally applicable. It is just to introduce the spouses to the registry office for pronouncing divorce formula. Thus they add to the problems of the women in their referring to the courts and vindicating their rights. Criticizing this argument, the present article emphasizes the applicability of this certificate.

The rule of the prohibition of double trial and punishment is recognized nowadays as one of the foundations of fair trial. The international concept of the rule is briefly prevention of prosecution, trial, and punishment of the defendant in the courts of different countries due to the perpetration of a single criminal conduct or in the perspective of some other scholars due to the commission of a single criminal title. The legislator of Iran before the Islamic Revolution while making amendments to the former penal code and according to the clause 5 of the article 3 of the above mentioned Act amended in 1352, validated the negative effect of the decisions issued in foreign courts accepting prohibition of the double punishment of the convicted ones. He had also recognized the validity of the matter adjudged originating from issuing decisions in regard to the offence being committed out of the Iranian territory under some conditions. However after the Islamic Revolution there was an attitude towards refusing to accept this rule. Thus the legislator ratifying the Islamic Penal Code in 1361 and 1370, started to amend clause 5, article 3 of the above mentioned rule invalidating the conditions following it. Taking a cursory glance at the concept and foundations of the rule, the present article raises the views of proponents and opponents as well as the jurisprudential views of authorities in Islamic jurisprudence. Finally it has approved and justified the rule in certain crimes and punishments from jurisprudential perspective.

Upon his death, man is deprived of a lot of his rights and loses any choice, capacity and domination over himself from creational perspective. In addition, respecting the dead body of Muslims and observing his dignity is a religious and conventional obligation. Now the question arises whether a man has the religious right and power to decide about his body after death and about removing organs from his body for transplantation. Is it possible for him to make a testamentary will about this issue? Another question also arises whether the next of kin of the dead have the right of deciding about the body of the ward and whether their consent in this regard is of significance or not. To answer these questions, we study the issue under the two titles of testamentary will and guardianship. The single clause bill concerning the 1379 Act of “organ transplantation of the dead patients or those whose brain death is inevitable”, has stipulated the testamentary will of the patient or the consent of the next of kin. There is a fundamental difference between the view of the proponents and that of the opponents of removing organs from a dead man according to his will. The consent of the next of kin of the dead man is indicative of the permission and consent of the owner of the organ. Thus this permission is valid and plays the role of a license for removing organs.