مجله مطالعات فقه و حقوق اسلامی
پیاپی 18 (بهار و تابستان 1397)

In the OSUL science , it is clear that Wajebat Gheyri are appealing and do not require the intention of a charity while Taharat Salas , although they are considered Gheyri, must be intended for worshiping, otherwise they will not have precedence. In order to solve this problem, the Osuleyon have traversed several paths, which briefly include: The intention of a Nafci Estehbabi in Gheyri matters; the purpose of the necessary title which is Taharat Salas in essence by the intention of Gheyi matters; the attainment of the intention in the Zelmoghadameh through the intention of the Gheyi matters; the multiplicity of the matter; the worshiping of Taharat Salas by the intention of the implied Nafsi; The qualification of Mogharabiat and not the existence of the possibility of being worshipable as an act; in the end, according to the drawbacks of the aforementioned considerations, it is concluded that there is no way to correct Taharat Salas unless there is a way to survive the Estehbab Nafsi of Taharat Salas after Gheyri matters; therefore, when Gheyi matters come through, though the essence of the Estehbab is destroyed, limit Estehbab remains untouched; hence, the worshiping of Taharat Salas is not derived from the Gheyri matters, but rather from the nafsi Estehbabi Matter.

In its dealing with the instances of customary issues, the custom can perform in two ways. First, changing the sentence for the instance by the custom due to consider the instance as unrelated to that issue is favored by jurisprudential commands. This rejection of the instance by the custom is acceptable. The second is that the custom considers the instance within the realm of the related issue, yet rejects the application of the sentence to the instance. Since the issues in the jurisprudential commands are factual, a sentence will be issued for the concept that underlies the external instances and so, includes all instances of that issue at all times. Therefore, as far as the issue truly underlies the instances, the negation of the sentence for the instances is impossible. Consequently, this rejection of the instance by the custom after it has been verified that the instance belongs to a specific issue is in fact interference with the legislator's job and is legislation of a new sentence: an act that is disallowed by all jurisprudents.

A contract or unilateral legal act, whether irrevocable or voidable, results in some obligations that the obligor must fulfill. The obligor will be exempted of the obligation in case of acting upon the contract contents or the distinctiveness and conditions within it. In other words, it should take place in the exact agreed time and place stated in the contract context, and in case of any expense, it will be up to the party to whom the contract refers. However, in some cases, the contract might be unconditional in terms of time, place, and any expense of fulfilment of the obligation. This issue has drawn the jurists’ attention and has been subjected to lots of disagreements and debates in various assumptions.
This paper, concludes that except for the revocable contract in which time is not estoppel, in the unrestricted contract, the principles of obligation immediate payment, obligation fulfillment in the place of ratification, and payment of the obligation fulfillment expenses by the party benefited from it, are the basic foundations to answer the questions in the all legal and lawful and jurisprudential parts.

In most contemporary legal systems abandonment has been identified as one of the causes for the loss of property rights, and also in comparison with other rights are possible. But in Islamic and Iranian law, were cited as very minor and never has been discussed as independent. Therefore, in this paper we will try to respect the comments and works of early and contemporary scholars, as well as considering the opinion of Iranian lawyers, first the effects of abandonment in corporeal property was evaluated. And then according to these effects, the result of abandonment of intellectual property, especially patent right to be studied. Finally, it was determined, as well as the other right such as easement or profit right, abandon of patent is possible. And then unlike corporeal property, abandoned patents, including the appropriation of public property, and taking possession of it, would be impossible even by the inventor or previous owner.

One of the challenging issues in the area of law enforcement is whether it is necessary to admit the Qavvadi conviction in the case of certain outcome or not. In the past, Jurist were on the agreement that there is no hesitation to implement the punishment as the abominable crime of Qavvadi should be subjected to Hadd punishment whether the outcome resulted from or not, while the contemporary Jurist think otherwise and are on agreement that such abominable crime will be subjected to Hadd punishment only if the outcome resulted from. Taking into consideration that there is a consensus on the need to admit that adulterer and adulteress (Qavvad) ought to be condemned to Hadd punishment , the author tried to analyze the narration by Abdullah ibn Senan to prove that this commitment is subject to Hadd punishment. He, then, examined the arguments that can be used as some pieces of evidence to be reasoned on. Reviewing the cases and reasons, it can be concluded that, rationally, it is not meaningful to interpret the mere meaning of a word like community is aggregation by adducing Tabador, due to some reasons including analogy and controversy, instead it can be proved through the relationship between commandment and case that the Hadd punishment will be imposed on the offender if a certain outcome is achieved. But even if this reason is not convincing enough or seems a little hard to accept, the Hadd punishment is not imposed due to the doubt about the truth of a cognition, the principle of Dara, so the Hadd punishment will be failed to apply if the certain outcome is not achieved.

According to the Civil Code, if because of some force majeure one cannot fulfill his obligation and because of this non-fulfillment, the other party bears some losses, the former will not be responsible.
A question arises here: if this forced non-fulfillment of obligation results in injury or murder, is the obligated one responsible or not? In the Iranian Law as well as in Shi‘i jurisprudence, nothing has been explicitly said regarding this point. From all arguments, however, it can be inferred that just like injury and murder which, if committed positively, create responsibility, the negative act, if it results in injury or murder, will cause penal responsibility for the committing one and so make him responsible before the victim. As for murder and injury, if there is some cause-and-effect relation between the act and result and conventionally the criminal result may be attributed to the agent, the committing one is responsible, otherwise he is not. Thus, if murder or injury is committed directly, since there is a cause-and-effect relation between the crime and agent then he is responsible and if it is committed indirectly, since there is no attribution relation, then he is not responsible.

In Islamic traditional jurisprudence it is assumed that punishments are either had (prescribed punishment) or ta’zir (discretionary punishment left to the decision of the judge in each case). There are also some specific crimes which are considered as ta’zir while for which the quantity and quality of punishment is determined and fixed in some traditions. Islamic jurists have named such punishments as al-Ta’zirat al-Mansoos (Explicitly Mentioned Discretionary Punishments). This kind of punishment, in its turn, has increased ambiguity in the number of hodood (prescribed punishments) and yield in confusion in whether they are had(prescribed punishment) or ta’zir (discretionary punishment). The main question regarding this kind of punishments is that whether they are among changeable and discretionary punishments or unchangeable and fixed punishments. This article has considered the traditions mentioning the cases of specifically mentioned discretionary punishments as judicial traditions. This means that the quality and quantity of punishment in these cases are not unchangeable. Consequently, there is no substantial difference between this kind of ta’zir and other general ta’zirat. Therefore, it is of judge’s authority to determine the quantity and quality of the punishment as each case requires. Similarly, there is room to apply modern criminal institutes like suspension of punishment, adjournment of judgment and criminal prescription in Punishments in all instances of al-Ta’zirat al-Mansoos.

Invalidity is the prevailing theory about reluctant contracts and it is deemed a clear verdict in the Iranian legal literature. As common and recognized as the reluctant contract may be, the reluctant or involuntary unilateral contract is, on the other hand, vague, unfamiliar and subject of debate. Based on the unity of views and general principles of contract and unilateral obligation, some argue that similar to unilateral contracts, reluctant unilateral contracts must also be considered invalid; While the narrative evidence points to the invalidity of unilateral divorces and releases occurring under coercion. The present research aims at studying the quality and evidences of reluctant unilateral contract verdict.

One of the most important rules that has been accepted in whole legal systems, is irrevocability of contracts whose the most clearest conclusion consists in the complete fulfilment of any contract by parties to it. Sometimes although the contract is absolutely valid and in force and the obligations there are applicable, the obligator does not fulfill his/her obligations without any justified excuse and deprive the other party of the benefits of the contracts. So every legal system on the basis of its theorical bases introduce some methods for requiring the refusing obligator in order to protect the obligee contractual rights. One of the significant ways and sanctions which have been considered and applied in some national legal systems is called fine. But there are, in addition to it, another ways for requiring the contract parties for example collateral and Punitive damages. The aim of Punitive damages is requiring the refusing obligator but the aim of collateral is determination of contractual liability or determination of violation damage or requiring the refusing obligator. In addition the base of Punitive damages comes from public order but in collateral, it comes from meeting of minds. Anyway, in this article, after introducing these ways perfectly, we will compare them.

One of the most important types of crimes is crimes against human dignity, in which the human's position of the victim is degraded as a commodity. From the very important questions that have been raised and constantly considered in the context of victim support for crimes, the fact that, given the key role of women in the family and community system, as well as their physical and mental status as a form of vulnerability, What is the mechanism for handling crimes against human dignity, which is specially designed to support the victimized women? In the present study, we use the analytical-descriptive method, in addition to explaining the mechanism of supporting the victim's women in such crimes, identifying legal gaps in this field and presenting appropriate and practical suggestions for improving existing solutions.

The question that weighed on the criminal protection of legal rules, the philosophy of criminalization of some behaviors and justify the imposition of punishment on the violators of values. Governments have always tried to express in the name of acceptable opinion, to justify their criminalization. Answering about the philosophy of criminalization is also important for the Disturbing crimes in criminal procedure process, that the subject of this article. The investigation revealed that any crime disturb in the process of the criminal procedure benefit differents rules and principles of the criminalization. It can be considered the justification of criminal intervention, "The harm principle" in most cases of these crimes and "The public interest" & "The moralism" principles in the limited extent and in other instances of crimes, The Jurisprudential rule of "prohibition of help on Esm and Odwan". At the same time the rule of "La zarar" can not be used as a basis for the criminalization. The research method used is descriptive-analytic.

In conjoined twins, join of body to each other results in multiplicity or unity doubt of personality. These individuals are sometime two separate and independent personalities in a common body (multiplicity twins) and some of them are a unit personality that has extra part in its body (unit twins). This is one the most important issue which gives them a distinct rule from ordinary people. The aim of current study is to investigate the criminality and victimization rules of this type of compos mentis in the case of crimes and retaliation for wounds by descriptive-analytic method. The most important findings reveal that firstly, the criteria for determining their unity or multiplicity of their character is multiplicity or unity of their vital forces such as brain and heart. Secondly if multiplicity twins commit a crime to the organ of a person that is equal to their common organ, retaliation involves paying the ransom surplus. But if the crime is committed by one of the twins, the execution of retaliation transform due to loss of the other non-criminal twin. Thirdly, if in the case of multiplicity of twins, a crime is committed by one of the common organs by one of the twins, belonging organ to both of them require the criminal twin to pay half of the compensation. Fourth, in the assumption of multiplicity; crimes committed on their common organ, cause multiplicity of victim of crime ( Majniyon- alayh) and the criminal is responsible toward both of them.

The general rule of Key Money or Goodwill, as is common among people in Iran, could be found in Note 2 of Article 6 of the Landlord-Tenant Relations Law passed in 1997, which states: "If the landlord transfers the key money to the tenant with a correct legal form, at the time of eviction, the tenant receives the right to legally demand key money on fair day rates." The legislator proposes two methods as examples of the "correct legal form". The question that arises here is that: By these two methods, is it possible to create a right with particular characteristics required in that general rule, so as to be able to jurisprudentially correct the common key money deals in accordance with the law, or not? By analyzing the jurisprudential foundations of these two methods, it becomes clear that no one can create a right to be transferable and legally demandable to the rate of the day. Therefore, the two methods mentioned in the Law of 1997 aren't competent to jurisprudentially correct the common key money deals, and are inconsistent with that general rule.

Adoption of proper Islamic law basis towards the concept of one who deserves to be killed and determining criminal sanctions in the case of crimes against one who allegedly deserves to be killed is significant both for the purpose of observing important principles of lawmaking and providing public order and security. Recent approach of criminal policy of Iran in the context is hopeful, particularly after passing of new Islamic Penal Code in 2013. Enumerating examples and stipulating criminal sanction for murdering of one who allegedly deserves to be killed are among the most important steps taken by enacting new Islamic Penal Code. The measures can pave the way for providing more protection of the principle of enforcement of penalties by the judiciary and providing and maintaining public order and security. Having examined the developments in criminal policy of Iran, the paper seeks to demonstrate that there is a long way ahead to realize a perfect criminal policy. Thus, in addition to examining flaws of Islamic Penal Code in the context, the paper provides solutions to the problem. The solutions focus on the necessity of acceptance by the legislator of changes in the base of Islamic law for the concept in on hand and safeguard of the principle of enforcement of penalties by the judiciary at the other hand.