مجله مطالعات فقه و حقوق اسلامی
پیاپی 12 (بهار و تابستان 1394)

‘Intellectual properties’ is one instance of properties، which has an important place in the present world. Through the ‘comparative law’، this article aims to undertake an investigation into the subject of ‘intellectual properties’ and in the context of the ’property law’: this is to familiarise the reader with the concept and place of ‘intellectual properties’ in the subject of ‘property law’. The article concludes that the objects of the intellectual properties are some movable and intangible things: these objects are also instances of ‘Eine moayan’ and are against the ‘Manfaat’ (interest) and ‘Hagh’ (right) in the Fiqh and Iranian Law.

Forensic linguistics as a new interdisciplinary approach was introduced in the late twentieth century. One of the aspects of this branch of science is the analysis and interpretation of legal texts. This paper seeks to show that some jurists، consciously or not were aware of some aspects of forensic linguistics and applied it in interpretation of a number of phrases and sentences. Examples presented here have been used to confirm this claim. The examples and many other examples in juristic books show that Islamic jurists recognized capability of multiple interpretations in some juristic sentences and understood its effects and consequences. This is why a few jurists have questioned a number of orders. Using a linguistic approach، the study of jurists'' different interpretations in the samples suggests that the jurists have used pragmatic techniques such as inference، action verbs، speech acts، cultural background knowledge and the local interpretation principle، in their interpretation and explanation. The implicit and indirect references to new and specialized concepts and terms – not like the terms in modern Linguistics- such as lexical ambiguity، structural ambiguity، referring expression and determining its reference is obvious. Existence of such evidences in the texts of Islamic jurisprudence confirms the hypothesis that there is a trace of Forensic linguistics in Islamic jurisprudence and Islamic jurists'' interpretations.

The reasons of requirement of outness of mortgage subject with an analytic and critical view in Imamiye and Iran law is studied in this article. The reasons of writing this article are counting the reasons of requirement of outness of mortgage subject and studying the validity rating of them and also determining qualification of mortgage of doubt، interest and other financial rights. We were encountered to the question that why the renown Imamiye jurisconsults emphasized on the outness of subject of mortgage and accounted the mortgage of doubt and interest void، and the civil law has followed them? The result shows that the outness of mortgage subject has no convincing reason and the mortgage of the properties without corporal and outer base should be account valid. Therefore، it’s suggested that in the future reforms the legislator should eliminate the outness of mortgage subject by reforming article 774 of civil law، and prescribes the mortgage of doubt، interest and other financial rights so as to make an efficient support over the owners of such properties and especially over the creators of intellectual properties.

That apostasy must be punished is a definite juristic judgment. In addition to critics، a good number of those who support Islamic jurisprudence believe that this judgment is in a sharp contradiction to a self evident human right، i. e.، freedom of speech and religion. Several books and essays have been written in this connection. However، in our opinion، they have all dealt with the problem on the basis of that very belief without going any further than gathering views and comparing them; they offer no answer to that problem and are incapable of solving that paradox. Rereading juristic texts and analyzing such terms as belief، infidelity، and apostasy، the present essay attempts to clarify whether that claim is true or false. Survey of juristic texts and theological essentials of freely-thinking in Islam on the one hand and consideration of the correct meaning of belief، infidelity، and apostasy on the other lead us to the conclusion that there is no paradox in this connection; for Quranic verses and hadiths treat the apostate as apostate because of his being naturally a warrior infidel. Infidel has its own specific definition in Islam according to which the infidel does not lie in the realm of intellectuality and belief so that his punishment could harm freedom of religion.

The question whether repetition of discretionary capital punishment is legitimized or not is a newly raised problem in the realm of fiqh and criminal law. Discretionary capital punishment is among those punishments which bring one’s life to an end and is determined by the judge. Repetition of discretionary capital punishment can be discussed where a criminal is sentenced to discretionary capital punishment، all preliminary actions of capital punishment are actualized، the judgment، i. e.، capital punishment، is definitely and doubtlessly executed، and the forensic scientist has confirmed his death declaring that he has no sign of life but the criminal returns unexpectedly to life without there being any deliberation، breach، or neglect in the execution or confirmation. There are two views whether or not execution of capital punishment can legitimately be repeated. The main achievement of the present research is that even if discretionary capital punishment could be justified by juristic essentials، repetition of discretionary capital punishment would not be supported religiously or legally. On the contrary، such religious proofs as the rule of repelling punishments because of dubieties، the principle of observing man’s dignity، and the rule of preserving bloods prove its illegitimacy.

Regulating a contract sometimes is in such a way that is hard to recognize common intention of the parties. This causes disputes between contract sides. Conflict in contract occurs when there are inconsistencies among the statements of the contract in such a way that the contract cannot be enacted. A conflict in contracts occurs in different forms whose understanding can be helpful in detecting and solving the problems. This article tries to provide from the perspective of the scholars of Osul- Al- Feqh some rules for solving problems in interpretation of ambiguous contracts. Based on this study، there are some solutions for contract conflicts: the first principle is referring to harmonizing expressions of contract based o custom. In other words، in order to resolve a conflict more established and more common understanding should replace less established and less common interpretations. If it was impossible to reach a consensus، discarding principle should be applied.

There are some of the rules and regulations in our legal system in which their applicaton will lead to delimitation of the private ownership. Public interests and sovereignty enforcement reduces the control of private ownership on one''s property and it was shown as absolute and proportional ownership. In addition to the possession of lands، some parts of the surrounding areas would be possessed as properties limits، without paying compensation by government and other executive agencies in order to execute public interests plans based on legal justification and، therefore، the property owner would be deprived of legal possession. The nature of these limits، which is against religious juries prudence and civil law، has not been specified yet. The possessions of the owner of limitation by government is not proprietary right and in contrary to those people who believe that it is a kind of easement in other property. It seems that it is ownership delimitation and it does not repudiate the incompatibility between the doctrine of TASLIT and LA ZARAR as well as observing public order and keeping public interests.

In the Islamic penal institution، a specific penalty is assigned for any offence which is fundamentally based on the idea of balance between the offence and the assigned penalty. Murder is one kind of offence which is sometimes committed by an individual and sometimes by a group. The penalty for this offence is retaliation. In the case of retaliation the murder needs to be voluntary. In murders committed by individuals، the avengers of blood can retaliate the murderer or receive blood money or pardon the murderer without recompense. But in group murder، in which a group kills an individual، the penalty assigned in the Shiite juristic texts is retaliation. Nevertheless، if the avenger of the blood decides to retaliate them all، he should pay the surplus blood money for the offence. Shiite jurists have used all four sources of ijtihad، i. e.، the Book، Sunna، intellect، and consensus for issuing this decree. Having reported the viewpoints of the Shiite jurists، we investigate in this study that judgment and the sources from which that judgment is inferred showing that the inferring such a judgment from the purposes derived from the Quran and hadiths is inadequate. The resulting conclusion shows that the avengers of blood cannot retaliate all of the accomplices to the murder، since exercising this retaliation is the blatant example of extravagance in murder against which God warns. Instead، the avenger chooses one of the accomplices for retaliation and the rest of accomplices pay their surplus blood money for the offence to the person who receives the retaliation. Furthermore، the principle of precaution in bloods supports this viewpoint.

Principles of Islamic jurisprudence as a significant and practical means aims to discover the will of law-maker and interpret it in conditions of silence، brevity، vaguenes; and even in cases of contradictions، help the jurisprudent understand the spirit of law. Among the most important is the principle of “the implecation of prohibition of transaction in corruption” both in the field of worship and transaction. Having the latter in mind here، we are going to examine the very reason of lawfull prohibition، and the goal of law-maker. The present article disusses about various opinions of the researchers while has discussed extensively about the notion of cancellation and validity.

Explanation of notion of the authoritative and surveying its essentials is the most significant problem in the science of Usul al-Fiqh، which is، in turn، rooted in hadiths as well as its own particular theological doctrines. The most prominent Usuli opinions on the problem of authority are presented chiefly on the basis of essential authority of the certitude and conventional authority of authorized conjectural proofs، along with the principle of non-authority. Explaining traditional and theological roots of authority and expounding deficiencies of prominent opinions، the present essay attempts to present more acceptable principles in this connection. It seems that the unified meaning of “authority” in Usuli discussions is “capability of argumentation on the basis of knowledge produced by existence of authorized conjectural proofs، conditional upon not being rejected by the divine lawgiver.” In this structure، authority of authorized conjectural proofs and ways made by the judgment of the wise is treated as the principle and incontrovertible-making and excuse-making of authorized conjectural proofs are treated as being results of existence of spirit of responsibility or fault in trusting authorized conjectural proofs as preliminaries of producing of certitude or confidence. In addition to being more demonstrative compared to the prevailing views، this opinion leads to less contro versial consequences and is more compatible with hadiths on the authority.