فصلنامه پژوهش های فقه و حقوق اسلامی
سال پانزدهم شماره 3 (پیاپی 56، تابستان 1398)

In civil procedure code enacted in 1931, the legislator, was not accepted the witness of sanguinity or causal relationship of the third degree from the second floor. With approval of civil procedure code enacted in 2000, the legislator is silent about witness of relatives. Therefore, the question arises as to whether, despite the silence of the civil procedure code enacted in 2000, as well as relatives with one of the parties, prevented the acceptance of the witness or not. It seems, due to intentional silence of legislator in the new code of civil procedure, it shall be sentenced to a change of the legislator's idea and acceptance of the relatives' witness. However, the legislator in Article 154 of the criminal procedure code enacted in 1999 (Article 209 of the new code of criminal procedure), the judge shall be to question about the degree of sanguinity or causal relationship between witness and informed with the litigants. The sentence of criminal procedure code raises this question that if the witness of relatives in Iran's legal system is acceptable, what's the point of the question of the parties with respect to existence or nonexistence of the relationship. And if the lack of relationship, in the witness is required, why not raised under the terms of witness?

Sunni jurists have different views about the artificial simulation. Permission or forbiddance of simulation depends on its type: IUI or IVF. Most of the jurists who oppose IUI believe that it is against the Quran verses and Sunna of Holly Prophet and results in disturbing the lineage. In addition, IUI surgery pre-requirements are ejaculation by sperm donor and touching body of women by physician to simulate, which both of them are forbidden. On the other side, those jurists who are in believe of artificial simulation surgeries answers: there are no clear and explicit Islamic verses, which ban this kind of surgery, it never results in lineage disturbance and ejaculating for obtaining sperm from husbands by their wives will solve the forbiddance (Hurmat). In addition, there is a juridical rule saying: Necessities makes bans and forbiddance permitted. Arguments about simulating by sperm of dead or divorced husband are more controversial. In sum, most of the Sunni jurists believe that artificial simulation is permitted only if done in waiting time of death and divorce. These arguments are also true about IVF but some jurists depended it on some conditions including ensuring the right of the fetus life.

Today, in Islamic societies, especially in Iran, one of the most important social institutions for the promotion of Islamic culture is religious institutions. These institutions are molded in a society in the form of governmental and official organizations, as well as nongovernmental and popular ones. One of the main tasks of these institutions is to prevent crime through combating factors and processes, or situations and circumstances that are effective in the occurrence of crime and social abnormalities, by direct sampling of the teachings of the Islamic religion (Holy Quran and the Infallible Sunnah (AS)). Therefore, religious institutions can play a significant role in providing the moral and social prosperity of a society by drying up the roots, factors and situations that have an impact on crime, while Iran's lawmaker is also subject to various laws and regulations, including in Article 106 of the fourth economic, social and cultural development act of 2004 which approved the role of religious institutions. But nevertheless, these institutions have faced a number of legal and practical barriers and challenges to address this challenge and obstacles, and to provide the necessary and appropriate solutions. To confront them, it is more and more felt that these challenges and strategies have been addressed in this paper.

The value of credit money may increase due to some reasons. In the premise of devaluation, there are clear jurisprudential views about the amount of repayment of debt after maturity. However, in case that the value of money increases, how much the debtor should repay? Since the actual due (right) of the creditor and debtor is jurisprudentially an important issue, this question must be clearly answered. Answering to this important question, on one hand, requires a precise examination of some aspects of the issue of credit money, and, on the other hand, needs the presentation of clear jurisprudential proofs. According to the stated assumptions, the research hypothesis is as follows:The purchasing power of money in the debt is the criterion of payment of debt in the premise of the increased value of the money. Using a descriptive-analytical method and collecting library data, we concluded that in the event of a sharp increase in the value of money, and while the debtor is not able to pay the debt at maturity date, he must pay an amount lower than the nominal amount received to the creditor. However, in the event of a slight increase in the value of the money, the payment of the nominal amount is considered the full payment of the debt. If the purchasing power of money has increased since the time of its receiving until the time of its payment, and the debtor pays the debt after the deadline despite the ability to pay, he needs to pay the received nominal to the creditor to compensate the losses.

Profusion is one of the ethical vices in Islam and intellect and customary laws have confirmed its prohibition and indecency. Amid these, water as a vital element is one of the materials which are at the human’s disposal. Profusion means extravagance and trespassing the limit and waste means destruction as well. Knowing the concept of profusion and also waste will help noticeably to understand the obligatory and statuary prohibition which holds liability. The conceptual verses of the Quran contain the prohibition of profusion. Traditions are also divided into two categories encompassing phrases against the profusion of water. Some of them with the concept and some others with logic and clarity have considered the profusion of water as an unlawful action. The jurisprudential rules in use are the jurisprudence such as "La Zarar va La Haraj" rule: in Islam [being harmed and harming others], no waste or causing waste can prove liability for the profligate person. However, the fault with the above mentioned reasons is that waste and causing waste are on the other’s assets whereas it does not include the private assets. There is not an independent writing on the exiting documents related to prohibition or liability of profusion of it but there are more general decrees which are seen in practical writings. The results of this short writing are to prove the obligatory prohibition and liability of water profligate person. That is to say that the citizen cannot have excessive use of water under this pretext that they pay the cost of the consuming water and referring to the presented documents, the state can introduce the individual as a liable person.

The issue of animal rights has been considered completely in the last century. Activists and animal rights movements believe that the religions –in general- have had little or no concern with animal rights issues, and that there are many protests to the religions. The purpose of this study is to recognize the views of Islam towards this issue. This goal was carried out by examining the narrations of the Ahlul-Bayt (PBUH) and the words of the Shi'a great scholars, during which the rights of the animals were examined from the perspective of Fiqh Imamiyah on the basis of the right of alienation and presented a complete and comprehensive picture of the special interest of Islam towards it. According to this study, firstly, the religion of Islam,for all the beings of the world-according to their place in the creation-in order to attain their perfection believe in rights, and contrary to the beliefs of animal rights advocates, there are many doctrines and teachings regarding animal rights. In particular, in comparison with other religions, many of those rights have been expressed not only in the form of moral advice, but also in the form of a religious order and jurisprudence, which imply their importance and the guarantee of their performance. Secondly, Shi'a jurisprudents, in addition to acknowledging the necessity of observing the right to live animals in various ways, have also acknowledged in a variety of ways, also carefully considering their alimony, its cases, its responsibility, and how to provide and prepare it, using the great teachings of Islam, they delivered Fatwa.

In the legal interactions of humans, a contract is made and the people obligate themselves to this contract and the decree is prohibited and deserves compensation, and due to this contract, a person committed for doing something and on the other hand, these obligations have compelling powers that are crystallized in the form of its implementation and are distinguished from ethical promises. Where does the source of obligation come from? In responding to this question, many ideas were raised that each of the opinions has many followers, including the rule of will, constraint, law, justice etc. and among them, the advocates of this theory which emphasize on intention, make the will only the source of the obligation to contract. But it does not seem that the only will of the person who usually seeks to attract personal interests is effective in this obligation and commitment, but along with this individual will, one has to pay attention to the role of the collective will of humans seeking to attract the interests of the people, and finally it is acknowledged.

Family rights base upon moral values. The effect of moral factors in this emotional community is a matter of fact. The correlation between legal regulations and moral principles is a main characteristic of Islamic law; hence approved and disapproved things in Islamic Jurisprudence point to moral concepts. The present paper aims at investigating and adapting moral factors affecting marriage and divorce and tries to employ descriptive and analytic methods to answer   this question: Did legislators consider moral principles in family rights? The author emphasizes that since marriage and divorce rules are influenced by Quran culture, the influence of moral lessons is undoubtedly unavoidable in this area. Factors such as the responsibility of wife and husband to behave well, forgiveness, marriage portion due payment, commitment to justice among wives, moral principles of divorce, custodial, expenditures of wife and her relatives are all legal elements smoothened by moral principles.

Through amending the Islamic Penal Code in 2013, article 234 of the Islamic Penal Code has been amended in relation to the punishment of the sodomy (which the Islamic Penal Code of 1370 punished his absolute death sentence). In the current law, the slaughter of the subject is conditional upon the condition of the guardian, the Onf or the non-applicable subject, and otherwise the penalty is considered to be one hundred whistleblowers. This great change in punishment has led us to look at the legal foundations of this article, in line with the provisions of the general rule of law, and the view that changing the punishment of this crime from severe to mild punishment would be a huge loss for society. Concerning the punishment of sodomy agents, we encounter two theories among the jurisprudents: the famous jurists believe that the punishment for sodomy in the case of anonymity and murder; in contrast to the unusual theory of jurisprudence that punish sodomy in the form of scapegoat, murder or furious, and if you do not know, he knows the creeps. In the article, which is based on the analytical method and using the library resources, criticizing the legislator regarding the disproportion between the sodomy punishment and the definition of sodomy, has examined the opinions expressed in jurisprudence and documented their validity. We believe that the punishment for murder for the subject is more consistent with the narrative and jurisprudential accuracy.