فصلنامه پژوهش های فقه و حقوق اسلامی
سال چهاردهم شماره 2 (پیاپی 51، بهار 1397)

In Imamiah Shiite jurisprudence, the laws pertaining to one buying a property in good faith are categorized into two groups. Some, like the Zemnal-Yad or the principle of respect, are of substantive nature and bend us towards a full support of owners despite the purchaser's good faith. The other categories, including laws like the ones of Sehat and Yad, are more of procedural nature, and designed to minimize the possibility of a purchaser acting in good faith. Applying the mentioned rules, the property is given to the owner only if the possessor has usurped it or confessed to the prior ownership of the claimant. Imam supports the buyer acting in good faith and does not differentiate between stealing and seizing the property with the owner's authority.

When a criminal is sentenced to retaliation for crimes less than death, the demand of someone who has been committed a crime against him is sufficient for retaliation. This question may be raised that whether the complete retaliation of an injury of criminal, prior to the establishment of full recovery in the real crime victim is permissible or not? Famous jurists based on the Quranic generalities and absolutes, and no-spread principle, made the license of retaliation before recovery of their own principle. In contrast, some jurists have not accepted the license of retaliation before recovery. And some others have divided between the injuries that are typically spreading and injuries which do not spread. It is noteworthy that the legislator has provided and presented in Article 440 of Islamic Penal statute. But before executing a life retaliation, the heir authority should pay the blood money of crime as retaliating perpetrator`s. And if the emerged spread is considered unintentionally, the perpetrator is condemned to pay the blood money which is committed by the spread, and does not diminish the amount of the blood money retaliation. The authors, after reviewing the issue and with great care in its documentation, believe that the lack of retaliation permission has no legal basis. Ultimately, they choose “the divisiveness view” as their choice.

Based on the verdict of whether or not to accept the repentance of male fornicator after Qiyam Bayyinah, there is a disagreement between jurists. Although some jurists such as Sheikh Sadooq and Sheikh Mofid believe that the repentance of male fornicator makes him deserving of lesser punishment, most of them are in an agreement that it cannot conducive to commutate the punishment. This was outlined by Article 114 of the Islamic Penal Code. Taking into account all these comments as well as examining them, the authors arrive at the conclusion that even though there are many narrations. No reference or documentary value specified to prove that the repentance of male fornicator makes him undeserving of lesser punishment. It is due to some evidence including the Istishab principle and the Hadd punishment etc, according to believers’ claim of first quote. There is also some weak evidence to believers’ claim of second quote including the lack of documentary evidence and relying on Tuaf al-uqūl narrative. Thus, the important thing is to investigate if the reputation evidence is reliable. After reviewing the documentations, it becomes clear that the believers’ claims of first quotes provide no proof of eligibility to be ascribed to. None of the believers’ claims of second quotes, on the other hand, are veracious except those of Tuaf al-uqūl narratives. Neither the believers’ claims of first quotes nor the believers’ claims of second quotes, except those of Tuaf al-uqūl narratives, are veracious enough to be ascribed to. However, the believers’ claims of second quotes are thoroughly complete concerning the Tuaf al-uqūl narratives. There is no problem with investigating the documentations. Confirming the authenticity of this document as being thoroughly complete according to the believers’ claims of second quotes, there is no doubt to accept the second quote in this regard.

The substantiation of some titles is justifying and legitimating of harmful act and in other words, eliminating fault. One of these categories is necessity in non-contractual civil liability. Unlike contractual civil liability that referred to in Article 206 of Civil code, It has not been raised on the necessity in law expressly. Without any doubt, necessity removed the fault from the harmful act and action which is illegitimated in the normal position and is unlawful and makes it lawful and permissible. But whether committing damaging action in necessity mode, exempts from civil liability or not, there are two views. In the first view, necessity does not remove civil liability and must be compensated damage. In the second view, necessity removes civil liability because of prevention of harmfulness around yourself or others. This article accepts the First view.

Imamieh jurisprudents disagree about judge's responsibility, the liability of public treasury, lack of responsibility, when the judge's decision is void. Since the source of judge’s error can be different. The sentencing of responsibility or lack thereof is not the same in all cases. If the source of error is lewdness of witnesses so that after the testimony and issuing the sentence, the judge becomes aware of the fact that witnesses had been lawed. Then four theories are presented. The preferred theory is the responsibility of public treasury based on the principle of respect for Muslim blood. Also, if the source of the error is judge’s default on the subject matter or adaptation of the ruling on it, the public treasury will be the guarantor, unlike the case in which the judge neglects in a judgment and thus he will be the guarantor. Dominant jurists of Imamieh have also extended the sentencing of warranty to non-convicts. If the executioner's error in executing a judge's sentence is due to judge’s error, it will be like judge’s error. In financial cases, if an error is made while the object remains as the same, it will be returned to the original owner, and when it is perished, the person who has caused damage (the flashing) is liable, if the object has not yet reached the judge before delivery of the convicted. Otherwise, both of them become responsible because of pursuit of capture.

One of cases among circumstance which is discussing in methodology is reputation of fatwa. The jurists of methodology only argue in its authority and lack of authority. Whereas the access to the fatwa of great holy jurists is also discussed. Hence, Sheikh Ansari in his book " Rasael" has defined the reputation of fatwa as the options of great jurists. The author's opinion is that the access to the ideas of great jurists who are famous and non- famous is impossible for some reasons such as the idea of anonymity of jurisprudents, dissimulating against fanatical ruler and deletion of the most written works. Hence what we call reputation of fatwa in methodology book is infrequent fatwa of jurists. It emphasizes the fatwa of famous jurists. But this fatwa is not proof of reputation of fatwa.

During long times, conditional sentence of "relative breach" in Iran's law has been subjected of lawyers arguments. Some lawyers deny existence of this executive guarantee in Iran's law, also a group of them not only have accepted it, but also, in distinguishing its examples, have dealt generously. Some of them have chosen conservative solution and believed that theorizing in this case is not correct and written text in scattered laws are sufficient. Other authors, due to lack of this enforcement guarantee in Imamieh jurisprudence that Iran's law is based on it, suggested the term “capability of branch “instead of " relative breach. However, in the present study, we decided to investigate the causes of relative breach in law texts of both countries of Iran and France by deductive logic and then to investigative the feasibility of procedure in Imamieh jurisprudence. The present work confirms the possibility of this idea that in this case, theorizing in civil law of Iran has been valued and has been eligible of innovation and also has determined the internal realm of relative breach in law of Iran and France.

The principle of penal economy is one of the most fundamental principles in the field of criminal law that eliminates the difficulties and complexities of criminal law as one of the constraints on the rights and freedoms of citizens with a slight degree of consolation and consistency. In fact, this principle seeks to delimit the scope of the criminal law intervention in the area of ​​citizen rights and freedoms. The commitment to the principle of criminal economy not only provides for the optimal use of criminal law in its proper place, but also at the same time provides grounds for the attention of the criminal policy of Islam to the use of social-legal instruments and institutions. The rule of the shamefulness of punishment without notice of law, the rule of interpretation in favor of defendant in the face of doubt, the principle of precaution in cases involving life, reputation, sexual chastity and property, the principle of narrow interpretation, the principle of the obligation of judge to be strict at the stage of proof of the crime and the principle and foundation of hudud on tolerance and mitigation in the implementation of penalties, the principle of tolerance, the principle of legitimacy of the expediency in determining the punishment, and the principle of non-authority justify the establishment of such a principal. Without doubt, the application of this principle in the process of punishment will result in a non-inflaming criminal system and, moreover, it can pave the way for the realization of criminal justice.