نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 6 (بهار و تابستان 1392)

Stock exchange Market of every country is the dynamic symbol of economy of that country and variety of financial instruments facilitate this dynamism. Nowadays, there are various financial instruments in global markets only two of which, namely debentures and shares, have been admitted in our legal system. In recent years, particularly introduction of new Negotiable Instruments Act 1384 and thereafter the Development of Financial Instruments Act 1388, paved the way for introducing Islamic financial instruments such as Sokuk. To make better use of such instruments, it is necessary to review the nature of them in order to find out whether or not employing these instruments are compatible with our legal and jurisprudential rules.In this paper, studying the importance of Stock Exchange Market, variety of financial instruments, we shall examine the concept and the legal nature of two types of Islamic financial instruments (lease & Morabeheh Sokuk), and their development, with regards the statutory and by-laws provisions.

In criminal offenses, to impose punishment on criminals, simultaneous existence of both Actus reus and Mens rea is essential. But there are exceptions in law and the parliament regarding the prevention of committing some dangerous behavior and protecting the public interest. The regulations forbid such acts due to the fact that they are difficult to prove, and they are not economical. This process is referred to as "strict liability or criminal liability without fault" and the offender will be punished, although a mental element may be necessary, i.e, whether or not she/he might have broken the law. Principle of the criminal law is to punish when 'No fault' is imposed on the person. This article explains the strict and absolute liability in criminal law and Islamic law and its relationship with the physician's responsibility. The present research concludes that compurgation does not eliminate the physician's responsibility but she/he can be excused from the punishment Diyeh. Thus in certain conditions, the criminal law and jurisprudence accept strict criminal liability.

Making contracts has undergone great changes through popularity and perfection enjoyed by means of communication such as telephone, fax, and the internet. One of the hottest preoccupations of the scholars is the marriage contract. Touching upon the ideas proposed by the lawyers and jurisconsults of all Islamic schools, the present paper discusses the problems of the marriage contract in the cyberspace. While some of the problems including nonconformity of offer and acceptance, nullity of marriage without words, validity of declaration of will through writing, and possibility ignorance and deceive are considered inadequate to repudiate the contract, some factors are necessary for the contract.

Both in legislated law and among scholars, earnest money has received little attention, and has been considered as a trivial issue throughout the related texts. Therefore, dealing with this issue would be a new and fruitful investigation here. There are many subtle differences and similarities between the nature of earnest money and other legal structures that caused it to be stated for the justification and investigation of the nature of earnest money. Of course, those untouched differences will be targeted in this text. Despite the silence of legislator and generality (brevity) of civil law regarding this issue, by and large, paying earnest money does not and cannot lead to a selling contract, because the requirement and commitment has not been established between corresponding persons, so it would not have the conditions of selling contract. Obligation, unilateral commitment to selling, mutual commitment to selling, and suspended contract cannot be the suitable justification of earnest money. That is why after analyzing the juridical proofs and foundations of law in Iran, it can be concluded that earnest money has its own specific nature which is considered as the partial payment of the total contracted price, and if contract is made later, it is considered as the main price.

One of the subjects that is noticeable in relation to revocable sale is the legal condition of possessions of the parties to the contracts in consideration and the effect of revocation in these possessions. These possessions have various types such as material possession (like eating, drinking, building construction, farming, etc.), and legal and credential possessions (like seller's transaction, lease and its mortgage, etc.), the discussion on all topics of which need more time and opportunity, and are beyond the framework of the present research. According to the Material 454 of Civil Law which indicates: "Whenever the consumer puts into the rent the loan while the sale has been revocated, the lease or hire does not become void...", in the present research, we have attempted to pay attention to two important subjects. Initially we have studied the basis of leasing or hiring correctness and precision and its non-void state under the revocated sale condition in viewpoints of jurists of Imamiieh and lawyers. Then we have surveyed the inclusion edge (dominion) of legislator's verdict on the above-mentioned Material. In this relation, the denotation of quoted Material and the reference to sources of Islamic law as the attribution reference of that Material have been of concern.

Bayyinah (two just witnesses) is known as the most important reason for proving the Islamic rules and matters, and it has been stated as two fair witnesses in the reports and orders of jurists. According to the legislation, it is one of the best reasons to prove any kind of claim. Bayyinah has been mentioned in many Hadiths as the evidence of fairness. The number of the witnesses has also been reported, which has caused the jurists to interpret it as two fair witnesses and because of this fairness and number (two persons) are contained in this interpretation. Hence, this group assumes Bayyinah as being two men and does not pertain it to anything except this. Firstly, the number of the witnesses should be two persons, no more or less. Secondly, they should be male and the female witnesses are known as being against the principle unless in case of some exceptions. Thirdly they should be fair. In addition to this assertion, another statement is used for using Bayyinah by absolute means, by using the whole Hadith, facts and figures in jurisdiction. It means any reason which is proving and explanatory is used. Therefore, the judiciary knowledge is used as Bayyinah and it can be applied to all reasons. In addition, by taking a look at the judiciary knowledge and pertaining it to the witnesses, there is no notion of either the two persons or the masculinity of the witnesses.

The 111th principle of the Constitution of Islamic Republic of Iran requires that a temporary council (including the president, the head of judiciary chief and one of the jurisprudents of the guardian council by choice of Expediency council) perform the leader's legal duties, in special situations, such as removal, resignation, death of the leader, lack of some qualifications of leadership, and loss of the competence of leadership. This article argues that the construction of this council is not logically acceptable due to Shia' principles of law because the members of it are appointed by the leader who was supposedly not qualified in that period. We suggest some logical solutions for the mentioned problem including appointing the head master of Assembly of Experts or its board of masters as the temporary leader or members of the temporary council of leadership. Of course, it is clear that the revision of the constitution is legally within the leader's authority (as mentioned in 177th Principle of the Constitution of Islamic Republic of Iran).

Various theories have been suggested to justify the right of self- defense against an attack or threat to life. Some scholars consider the ability to blame the attacker, the basis of self-defense; some experts justify the self-defense based on less harmful results, and others consider the self-defense justified due to the abuse of the lives of others. According to some other scholars, regardless of whether an attacker is blameworthy or not, and regardless of whether the invasive action is justified or not, the innocent defendant facing the threat and attack has the right to defend him/herself. The recent theory, with a focus on defender rather than the attacker, which seems acceptable, mentions that the basis of the self-defense right, against an attack or threat to life, is a defender’s right into his/her life. Thus, the defender facing an attack or a threat, whether the attacker is reprehensible or not, and whether his/her attack is allowed or not, has the right to defend him/herself. Now the question is: "Does the attacker whose attack is allowed or justified or the threatening whose situation and state (not function) endanger the life of another (passive threats), lose its right to life against its defender mutually? " According to the recent theory, since the action of attacking or threatening is not illegal in the above-mentioned examples, it also does not lose its right to life. Therefore, in these examples, the right to defense emerges mutually. Whereas the defendant has the right to defend him/herself against the allowed attacker or the passive threat, the allowed attacker or the passive threat facing an attack also has the right to defend him/herself.