مجله مطالعات فقه و حقوق اسلامی
پیاپی 19 (پاییز و زمستان 1397)

Duress is one of the factors that, according to the Hadith of Raf and other reasons, eliminate duty and responsibility from committing a crime but well-known Imams' jurists accepted duress in homicide and are believed that in the case of committing, the person becomes the retribution. The main question of this study is that, with Supposing the acceptance of the famous opinion, Whenever a threat comes from Mokrah, is more important and more difficult than homicide that Mokrah duress to that, for example a person duress other to homicide a person and Threatening if he don’t homicide him, he will homicide the whole of his family, what is duty?
Based on the evidence presented in the article, it is concluded that in the premise of the rule of the most important and the important, it permits the permission and the need for homicide of duress.

The formation of the Islamic system and the need to provide financial resources in order to implement the goals of the Islamic government created the question of how financial and revenue sources in such a government should be defined; This question has been considered in various ways. One of its new dimensions is the relationship between sovereignty and khums and zakat. The importance of this question is due to the fact that at the moment an individual divine and non-sovereignty view has been formed on them.Because, on the one hand, these funds are cost by the great Imitation references and based on their recognition in some cases, such as the promotion and expansion of the religion of Islam and the extension of the seminary and for the sake of Allah. And, on the other hand, the sovereign's view of these two is faint; if it is not said that Such a situation does not exist. With regard to the above situation, the question is whether a new approach to the two laws of Khums and zakat could be considered, and assume these two as financial resources of Sovereignty and Islamic government and of Islamic taxes. Findings of the research indicate that the requirement of a complete, effective and comprehensive system is the acceptance of the above view; and also various reasons confirm it.

It is obvious that the divorce which is called the most abusive lawful to the Creator of the world, has a devastating effect on the individual and society. But since the insistence on the survival of a relationship sometimes leads to far more destructive effect than to differentiate it and to disrupt it, there is no avoid for accepting it as the last resort . Nevertheless, the main issue is that who determines the necessity of dissolving a marriage contract and according to what criteria? It seems that due to the fact that the divorce is denied and its unfortunate results, it is better to keep pace with the general policy of maintaining a family and reducing divorce rates and its scope to be limited to cases where the continuation of common life for both parties, or one of them, will be by hardship and hardness.

As the public sector debt has increased over the past few decades, the importance of using the capacities of the private sector is noticed more than ever; However, operationalizing a public-private partnership contract requires an appropriate legal basis depending on the subject of the partnership and the form of contract. Although, in some cases, the legislator has pointed out the government’s duty, in general and temporarily, to make use of public-private partnership in Iran, the problem of choosing an appropriate form of such partnerships is still existing regardless of the existence of jurisprudential origins of these kind of contracts. Even though the totality of the partnership contracts refers to the partnership contract in jurisprudence, in some cases it moves away from partnership contract and approaches subjects such as persons’ rent and contract of reward (Ja'alah). Even if in the current Iranian legal system, there are opportunities for making use of a variety of civil partnership and service contracts for public-private participation, this research and its findings show that construction contracts, operation, transfer (BOT) are the most appropriate form for such partnerships.

Ignorance-of-law is usually an excuse from criminal liability and among the legal challenges of establishing a balance between maintenance of public order and administration of justice. For the maintenance of social order, everyone is obliged to be aware of the law and the general rule is "ignorance-of-law is no excuse". However, following this maxim would be unfair if proper understanding of the law is impossible. In this regard, the Islamic Penal Code (1392) has adopted a new approach through examining this maxim and its exceptions. Furthermore, some specific rules have been foreseen concerning the ignorance-of-law, especially in the case of punishable offenses and major crimes. This paper aims to explain the general rules and principles of this code and its comparison with the "Dare" Rule, and their limits and credibility in the criminal and non-criminal offences from the perspective of the Islamic Penal Code. Finally, the new approach is criticized.

If a criminal intends to do a crime in a place, but for some reason the first crime spreads to other organs, and causes another organ mutilation or Its profit decline and even causes killing of a person, a question that worths asking is ,the crime arosed of spread (the second crime) of intentional or unintentional aspects, what will be the verdict?
In response to the above question must be said, famous jurists absolutely believe in the intentional crime. Authors by investigating the issue and reviewing the problem evidence and within the framework of Ijtihad criteria, On the base know the recent crimes a quasi-intentional action, and of this fact they excepted a case that the killer wanted to spread, or his act in the first crime was spread, and only in these two cases have considered the crime intentionally. This quote in addition to be revealing with reasons, some scholars have agreed with it

Islamic countries always pay attention to a banking system without lurce and it has a deep relationship with economy and life of people. One of the significant problems for banking system is delayed demands. In fact these demands are more than 6 month and less than 18 month which passed the certain time of their reimbursement. Delayness of these demands imposes many disorders to banks. So in order to compensation banks receive much money as penalties from those customers who don’t pay their installments on time. This kind of method used by banks since many years ago has been faced with disagreements of jurists. Some know this method allowed and the other else don’t. according to reasons such as stipulation of this kind of encounter failure to pay by offender being payable of loss and wasting money this method sounds allowed but this is not allowed absolute. This allowed method in special condition such as facilities in special ways necessary experts in usage and getting facilities and having grace in getting loan could changed. In this paper payed to investigate these condition and if the customer adhere to them receiving lateness of them is not allowed even in some cases not only bank shouldn’t receive lateness but also bank itself has share in customers loss.

Today, the control of crimes and social anomalies of natural resources and national lands requires the adoption of appropriate criminal policy in each legislative, executive, judicial levels and it is a cooperative process. In this research, the current status of criminal policy on social prevention in controlling corruption in relation to national resources and national lands has been investigated and it is attempted to present a suitable crime prevention and control model in the field related to national resources and national lands. The results obtained from social prevention show that, firstly, there are gaps and deficiencies in legislative policy which has led to an increase in crime, and efforts in this area must be taken seriously in order to achieve proper deterrence and reduce crime; secondly, there is no proper criminalization in this matter and there are certain faults and disadvantages; Therefore, since Islamic jurisprudence and religious teachings have attempted a lot to preserve national resources, it is necessary to review legislative policy for social prevention and also it requires a fundamental development in criminalization.

According to the famous Imams' jurisprudents based on the evidence, such as narratives, leprosy and vitiligo that are among the defects of the couples. If these defects are appeared, the man is the rightful to terminate the marriage, but on the contrary, a group of jurisprudents, including Feiz Kashani, has considered it to be a common defect of couples, which, in the assumption of the appearance of that for any wife or husband, the other party will have the right to terminate the marriage. The present research, while referring to the jurisprudents and jurisprudence sources, has analyzed the documents of this rule and, with the preference of the non-famous viewpoint, has concluded that while realization of woman’s leprosy and vitiligo can give the man, right to terminate marriage, if the defect is confirmed for the man, the woman will have the right to terminate marriage. The main argument at this present article - regardless of the existence of narratives - is that if the woman does not have the right to terminate marriage, there aren’t any alternatives for her; unlike a man that if he did not have such a right, he could utilize divorce’s option.

In Islamic jurisprudence, with the aim of protecting the oppressors, or bringing together an experience with love, or because of the existence of historical traditions that justifies the authority of the father and grandfather, The father has the authority to marry a girl and a minor boy, and to allow the virgin daughter to marry. Articles 1041 and 1043 of the Civil Code also confirm with terms the authority of the father and the marriage of a girl under thirteen years and a boy under fifteen years subject to the permission of the father and discretion by court and the marriage of the virgin girl is also valid with the permission of the father. But is this discretion available only to the father, or is it possible to transfer it through the wills and attorney? This article, by examining the nature of the permission and reasons for the choice of the father and the issue of representation, seeks to prove that the province in marriage is not in itself to be divested to another; But representation for the father's permission in the marriage contract is not inherently an obstacle. However, unlike the customary procedure in the notary publics office, for reasons of expediency, the father can not allow the minor's marriage or the marriage of the virgin daughter to the delegate. Of course, in the case of a minor marriage or a virgin daughter with a certain person consenting to her father, It is permissible to give simple representation to an attorney to announce the permit.

In each legal system, there are some great concepts (legal principles) that the legislator has inspired by them. No legal system is able to anticipate all the issues and provide solutions for all of them. Therefore, the Iranian legislator in Article 3 of the Civil Procedure Act of 2000, demands that, in the event of a silence or summary of the law, reference should be made to the principles of law, this article discusses that the legislator's purpose of legal principles is not merely general principles of law, but also Also included are the cases of minor legal principles, operational principles, lexical principles, legal rules, and so on, and they can be arbitrarily documented and will play an increasingly important role in creating judicial procedures.

In Iranian legal system, Compensation for damages is based on the principle of full compensation. It seems that in Islamic jurisprudential the principle is derived from some rules such as “no prejudice rule” (la zarar), wasting rule (etlaaf) and etc. The legislator necessarily excludes these principles to apply in the case of damages to precious automobiles. (Paragraph 3 of article 8 of the Third Party Compulsory Insurance 2016). The paragraph expressly excludes the liability of the loser to the maximum amount of damages caused to a normal and usual automobiles. In This paper we analyze the Islamic and Iranian law and consider the basis of that exclusion. Analyzing the consideration of the economic situation of the parties, the rule of accepting possible risk (eqdaam) and the principle of the maintenance of the Islamic society order (hefze nezaam), we can justifay the basis of such limitation of liability and the lack of compensation for these cars over the particular ceiling. We believed that the principle of maintaining the Islamic society order (hefze nezaam) and the principle of accepting possible risk (eqdaam) can justify the mentioned limitation.

Termination is one of the instances of dissolution of marriage that end the marital relationships; among the factors of termination of marriage is difference of territories of the couples. The current research deals with issue of termination of marriage using the conceptdifference of territories and by descriptive-analytical of these findings, there are two different perspectives in this regard. The first approach is the popular opinion and based on narrative argumentation difference of territories is the reason of termination of marriage, in some conditions the termination is immediate and in some other cases is postponed. The second view is from a few jurists who, according to the traditions and practices of the Prophet as well as the preponderant interest, do not Count difference of territories the cause termination of the couples. According to the views and arguments on this regard and its adaptation to the circumstances and issues of the day, the judgment is preferred to non-dissolution. The order to preserve and maintain couple marriage life according to difference of territories of the couples (at least for a relatively long time) in the current conditions for the continuation of the marital life to prevent serious harm to children is essential.

Giving opportunity of modification is one of the sanctions against imperfect acts and measures which can be considered as the lowest cost and most defensive sanctions. Modification of acts has been analyzed in the light of “Theory of Nullity” and has taken important chapter in different countries. Civil procedure of France distinguishes between formal and substantive defects and devises special conditions and order for each of them. In Egyptian law, modification of acts can be done by perfecting or achieving to goal and purpose. It seems civil procedure of Iran needs to codification of system for modification. Accepting modification capacity for non-basic and subsidiary defects is compatible with our bases of Iranian civil procedure law and it seems first step should be taken on this basis in our law.

Islam has considered both sexual needs along with emotional needs. Since these needs could be fulfilled legally and ethically only in a family structure and a family is formed by combination of both man and woman, these needs must be recognized for both of them and a mechanism should be considered for providing it in Islamic jurisprudence. However some jurists believe that the woman is in accepting status and providing sexual services is her duty; but this research shows that sexual services is a mutual rights and duty for both wife and husband. Hence, wife's duty is to obey her husband but her husband duty is to fulfill his wife sexual needs in addition to provide spousal supports or alimony. So the order for intercourse incumbency in every four month for husband concerns about a situation that the wife hasn’t requested for intercourse in that period. Also, obeying incumbency for wife concerns about a situation that the wife tend to have intercourse. Therefore, making and having intercourse is a reciprocal duty and right which will not be legitimized except by the consent of the husband and wife.