نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و دوم شماره 2 (پاییز و زمستان 1398)

Computer theft is a crime which is done by a computer. Variety and complexity of that makes a question which is it possible to perform theft sharia law for computer theft like physical theft? In computer crime law only legal article 12 is about computer theft which is silent about sharia law of theft and has not sufficent deterrance. But studies of this article show that such these penalties are performable for computer theft. As the physical, spiritual and legal elements are the same so the nature of computer theft and traditional theft are the same and the only difference is about the crime environment. The conclusion of this article which is based on library method and existed sources is that if all conditions of sharia law happen we can perform sharia law of theft for computer theft.

Eruption tooth of victim of crime before and after retaliation is one of issues concern to crime on teeth that Imamiyah Jurists express various theories about it. Hereupon, legislator has adopted two different attitudes in articles 413 and 415 Islamic Penal Code Act 1392.  According to article 413 eruption tooth before retaliation caused that retaliation not enforcement and condemn criminal to paying Arsh[PB1] [PB2]  and based on article 415 eruption tooth after retaliation entail not responsibility for victim of crime. Whereas juristic opinion – Fatwa - that considered as criteria is equal in them and it necessitate above – mentioned articles to be consistent. This research that writed through a descriptive – analytic method, disregard to contradict one of mentioned articles to criteria juristic opinion, consequently to be necessary it reform.

The fourth verse of Sūrat aṭ-Talāq is about the divorcee’s iddah. Based on this verse, eminent Imamia jurists have inferred the number of iddah months for women with an uncertain menopause status and maintain that for women with a certain menopause status, albeit sexually penetrated, iddah does not need to be observed. This is while Sayyed Morteza Alamolhoda (RIP) argues that the iddah of divorce must be observed for post-menopausal women who have experienced sexual penetration, whether they are in the age of menstruation or not. Following eminent Imamia jurists’ opinion, the Civil Code of the Islamic Republic of Iran also states that for women with a certain menopause status, albeit sexually penetrated, iddah does not need to be observed. In this regard, opening the topic of ijtihad in Imamia Fqih provides a valuable opportunity for re-investigating[PB1]  this issue. Having examined both parties’ arguments as well as other verses of the Glorious Koran[PB2]  on divorce iddah in the light of the causes and contexts of their revelation, the present study found that the opinion of minority is ascertained and based on substantial jurisprudential fundamentals and it can be used as an acceptable well-documented basis for amending the provisions of the Civil Code of the Islamic Republic of Iran in this regard.

Practical Intellect has many functions in Usul al-Fiqh (Principles of Jurisprudence), however, considering the purpose of Usul and its status as an introduction to Fiqh (the science of Islamic Jurisprudence), merely[PB1] [PB2]  one of the functions of intellect, i.e. legislative intellect, and its criteria has been discussed. While acknowledged by some scholars, the function of this kind of intellect in jurisprudence is rare, which leads to disparaging intellectual topics in Usul; the function of intellect in organizing the topics of Usul and regulating the relationship between the legislator and people is of great importance, although this requires its own rules and regulations. Having[PB3] [PB4]  a descriptive-analytical approach, this article tries to introduce a structure of intellect according to the circumstances in which it conceives, and also the rules and regulations of each circumstance.

The discussion on the possibility and how to change the juridical instructions has attracted the attention of different intellectual currents and scholars have investigated it through different basics and motivations. The basic issue in this study is to explain the accurate meaning of “changing instruction” and analyzing the mechanisms of its venue; so that it clarifies whether this nomination is accurate and real or it is tolerant or virtual? The undesired effects of incorrect understanding of meaning and factors of changing instructions, especially the doubt on religious instructions temporality clarify the necessity to conduct such study. According to the results, factors including changing subject substantially, changing subject descriptions, changing the title of derivative in subject, changing the reason of instruction and…may –idiomatically- lead to the change of instruction; but all these factors are under the comprehensive title of “changing subject”. Accordingly, the expression of instructions change has tolerance and what happens in reality is that all fixed instructions of sharia are activated following the comprehensive achievement of their subject and by subject being disrupted, the previous instruction becomes inactivated and another fixed instruction activates. The mentioned result besides the verbal application in answering some doubts, offers a clearer understanding of overlap between instruction change and subject change before researchers.

Despite nullifying the concept of Qīyās (analogy),the jurists of Imamiya have no disagreement over the validity for “consistent meaning” and Qiyas al-awlawiyya (a fortiori qiyas) and believe it is permissible to generalize the ruling to non-specific issue because of its priority. However, regarding the interpretation of criminal laws, the main question which is raised here is: how valid is the concept of consistent meaning with regard to the legality of the crime and punishment principle and the interpretation in favor of the defendant?
It seems that wherever this concept is believed by the common statutes  to be part of connotative meaning of the word and attributing it to the legislatures does not require contemplating upon the reason behind the ruling and the priority of the trifling issue in the reason for the ruling, we can accept the “consistent meaning” in criminal statutes  . However, in some cases where the judge tries to generalize the law to  trifling cases through discovering the philosophy of punishment and prudence meant by the legislator to escape punishment, this does not match the legality of the crime and punishment and interpreting the law to the benefit of the defendant and also the “consistent meaning”.

The option of rescission in sale of animal is one of the divinely-ordained laws (Ahkam-e Toghifee) in Shiite jurisprudence, it is essential to find its aspects given the inadequacy of civil code in this respect and also given the fact that the laws are religion-based in iran. This option is not restricted to one specific kind of animal. This option does not apply to taxidermy animals and birds which are considered as mere objects. This option typically applies to sale contracts and certain types of barter, and is the specific right of the buyer. The scholors agree on the option of rescission when it applies to a specific animal but they are divided on the applicabililty of the option when it comes to the sale of an animal in general. The option is a complementary rule of which the appertaining right can be waived if assertedly conditioned or separately waived by the buyer or when the buyer”s possession of the object of sale implies his/her consent. the present study also addresses the applicability of the option in unauthorized contracts, the conferred of the right to the attorney-in-fact, and the consequences of this option.

Impotence due to lack of penis is a type of sexual disorder that in some cases affects the rulings of the infected person. One of the controversial rulings in this regard is related to the crime of Qazf. The jurists have offered two reciprocal views in this regard; Some have speculated on the condition of the presence of the penis in the vagina, and in the absence of the penis, they believe that the penis has not been fulfilled. On the other hand, a group, without considering this condition, also realizes Qazf in relation to the non-penis. This research has studied the jurisprudential sayings of this issue in a descriptive-analytical way. The findings show that in this case, the preferred word is to present a third theory according to which the complication of the lack of a penis in the removal of the condition is conditionally effective in the realization of the crime of Qazf; Assuming that the person's condition is obvious to others and that the lack of the verb attributed to him is unlikely, the lack of a tool eliminates Qazf and makes the opposite ratio an example.

According to the note of 1130 article of the civil law,leaving family life by the husband (in some cases), is one of the examples of hardship conditions and therefore gives the wife divorce right. But the question that arises is what is the sentence of this issue regardless of giving the divorce right to the wife? It seems that according to the wifes' division[PB1] [PB2]  right, the husband must be sinful by leaving family life[PB3] [PB4]  and the wife can ask the sharia  governer to make him execute her right. Most imamiyya and hanbali and some of the hanafi and maleki jurists recognize the division [PB5] [PB6] right for the wife.This right can be proved according to several narrations and the principle of no harm.

Some of the rulings delivered by Faqihs may not be consistent with the common sense, the rulings may not be compatible with their subject matters, and thus, they make Fiqh and Sharia seem insensible and incompatible. But a short review of Fiqh shows that many Faqihs – and on top of them Imam Khomeini – have confirmed the necessity of a 'reasonable compatibility in religious rulings,' and as a 'non-verbal implication,' it increases the likelihood of a compatible ruling. They also believe that when verbal sources contradict the common sense, people's common understanding goes first. In addition to forming such a 'likelihood' – which shows the importance of this compatibility in Usul al-Fiqh – we could also use four narrations to prove the necessity of such compatibility between the ruling and its subject matter. In many cases, Imam Khomeini has referred his arguments to this reasonable proportionality, such as; understanding the characteristics of the subject matter, generalizing a ruling, and the generality or individuality of some verbal sources. The great number of such arguments weakens the idea of incompatibility between the ruling and its subject matter in Fiqh.