مجله مطالعات فقه و حقوق اسلامی
پیاپی 13 (پاییز و زمستان 1394)

The enjoyment of the possession right for those who exercise legal activities is a feature whose absence leads to applying the term unauthorized interloping to a legal action. The study of written works of the Islamic jurisprudents shows that the discussion of validity or invalidity of unauthorized interloping legal acts has begun from unauthorized sale and made some of them to believe in invalidity of sale and the other unauthorized contracts. Whereas, most of the jurisprudents, in addition to accepting the capability of authorization of unauthorized sale, have extended the decree of validity to other unauthorized contracts this idea has also been preferred by the Iranian legislator. But unauthorized unilateral acts have been considered as nullified in the idea of those jurisprudents who have accepted the theory of validity of unauthorized contracts. These jurisprudents have documented the invalidity of unauthorized unilateral acts by intellectual and narrative evidences and particularly by consensus. In opposite, a few jurisprudents, by breaking the aforementioned evidences, have regarded unauthorized unilateral acts qualified of the decree of correctness as such unauthorized contracts. Amid these discrepancies, this paper proves the hypothesis of the validity of unauthorized unilateral act by independent evidences and also by accepting unity of criterion and evidence between contract and unilateral act. The evidences used for proving this hypothesis are: citing various documentary evidences, majority for person who makes unilateral act, lack of conditionality of conjunction of consent and will are the most important points which have been studied.

One of the cases of “plurality of crimes” is where from one behavior, emanate many criminal results. This hypothesis which is named by plurality of consequences was, for the first time, adopted in the Islamic Criminal Act 1392. previously the judicial precedent considered the mentioned assumption as the “unreal plurality of crime”, while the present legislation identifies the subject as “real plurality of crime”. Most Islamic Jurists believe if some different criminal consequences emanate from a given action, there is a punishment for any consequence.At the time being, as the subject is new, there are many questions on it including: what is meant by criminal consequences, what is the difference between plurality of consequences and similar cases like topical plurality of crime and plurality of victims?The results of this study shows that there are some differences between the plurality of criminal consequences and topical plurality of crimes including in plurality of consequences, the consequence is considered from “material” point of view, while in topical plurality of crime, the consequence is considered legally.

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.

The time of transfer of ownership in sale of specific goods, is an important and effective subjects in slamic jurisprudential issues. If there is an option in contracts transferring ownership, such as sale, when the ownership is transferred? Does, after the declaration of the offer and acceptance, the ownership of goods is transferred to the buyer and the seller will own the consideration or these legal changes are subject to lapse of option? Among slamic jurists, there are three opinions in this regard. We believe that as soon as the sale contract is concluded, it transfers the ownership and during the option period, the seller and buyer, are respectively, the owner of good and consideration. This is the major opinion in Shiite Jurisprudence and has been adopted in article 364 of Iranian Civil Code. The study of different reasons of this opinion, will assist to know the theoretical basis of Code Civil in this regard.

One of the most common issues that scientists face nowadays is related to the medical reproduction or artificial insemination. In Muslim Countries like Iran, it is of more significance due to the dependence of many issues on Islam. Therefore, it is frequently seen in jurisprudence and law that many theories have been proposed in this regard and it has been generally and not in detail dealt with. So, the present article aims to study perfectly the rightfulness of the artificial insemination of the artificial insemination of the deceased husband’s sperm to his spouse. Through studying the relevant evidence, it is concluded that due to the continuation of marriage, each of the operation of taking, combination and insemination of the couple’s sperm and ovule, after death of each of couple, is authorized unless taking the husband’s sperm after death, is deemed as disrespect or entails a religiously prohibited act like touching that in this case, shall be illegitimate and prohibited.

Undoubtedly compensation of damage is one of the most important aims of the tort law. For this purpose it is very important to evaluate compensable damage and their considerable norms. Like the process of proving the damage, some norms must be proved by plaintiff, according to the applicable laws. In the process of damage evaluation especially for the monetary cases, there are some principles which should be obeyed by court. While in some countries judges are able to adapt damages and have the needed options to aggravate or diminish of damages, in some legal systems the norms which are helping judges are called,»principle of full compensation«. According to this principle, compensation should be exactly the equal to the damages to put the victim in the position he was in before the occurrence of damage and this position is generally considered to be the same as situation where the victim does not suffer from any harm at all. Proposing this principle and its situation is the subject of the article.

Analysis of Islamic jurisprudential views on the duress in murder with emphasis on the relation of accepting each of them with the issue of public order is the main subject matter of this article. Thus, in adition to explaining the different Islamic jurisprudential views on durees in murder, the question that which one of such points of views can provide the society with utmost public order will be answered. The reason why public order is considered as a criterion in this respect is that the main and final goal of criminal law is to provide citizens of a given society with due public order. The paper clearly explains that how the acceptance of duress as a defense for murder and prevention of retaliation in this respect, may make public order unstable. However, whole islamic jurisprudential views are considered and on the basis of all of researchs and studies, it is recommended that the legislator should pay due attention to the view that prescribes retaliation punishment for main cause that is who makes duress. It seems that this view may provide the society with public order more appropriately.

According to articles 555 and 385 of the Islamic penal Code 92, if both perpetrators behavior and victim's death occur in the sacred months or in the holy shrine of Mecca, one third of the blood money, in addition to blood money, should be paid to the family of the victim. These legislations, that are known as the issue of "blood money aggravation", retrieved from the various narratives about the sacred months, that despite the documentary weakness of some of them, their weakness are compensated by the companions action so leaves no doubt about its validity. But the researches show that there is no explicit text about the shrine of Mecca and narratives narrated by Aban, either some of their narrators are deleted and therefore they can’t be trusted or their texts are more relevant to the sacred months than the shrine of Mecca. So, they may not be a basis to adjudicate. There is no trustworthy fame in this case that we can justify, relying on it, the concept of mentioned articles. So it should be insisted that legislator delete the issue of blood money aggravation in the shrine of Mecca from the above articles. Another point is that mentioned aggravation is only in felony on life and there is no difference among intentional, quasi - intentional and manslaughter in this case. It should be considered that there isn’t consensus on mentioned generality but it is based on trustworthy fame among slamic jurists and therefore the legislator has insisted on it in article 555.