مجله پژوهش های فقهی
سال شانزدهم شماره 4 (زمستان 1399)

There are different views in discussing the necessity or the lack of necessity of the transactions without contraction. One of the reasons referred to by those who believe in the lack of necessity of the transactions without contraction is the famous narration “truly, the word makes something lawful or unlawful”. There are disagreements among jurists as to whether the “word” has been used in its superficial meaning or it has a metaphoric meaning. There are various possibilities according to the reasons in this regard by analyzing of which it turned out that none of them are acceptable; rather, by the “word” it is probably meant the corresponding meaning: that is, a conversation carried out between the dealer and the customer, which has the capability of being both the rules of vindication and sanctity without being involved in the problems of other possibilities and it will not lead to any conflict with the validity of the transaction without contraction.

Making it easy to meet the legal requirements of the society is an expediency that has a special role in satisfying the essential and general requirements of the contracts. Meanwhile, a number of lawyers, innovating a new theory called “the hidden expediency of the contracts”, believe that the hidden expediency plays an essential role in recognition of the requirements of the contract. Therefore, the present article first analyzes the role of expediency in the emergence of the requirements of contracts. Next, it reviews the viewpoint of the hidden expediency. The results show that expediency both is the reason for making elementary and secondary rules and has a central role in the actualization of the new contracts and the formation of essential and general requirements. Resorting to the essential expediency of the contract and its presumed continuity in the case of doubt is a legal solution to recognize the requirement of the contract which is considered as the main solution by the Imamiyyah jurists. The solution of the hidden expediency, if it is meant the same contracted essential requirement, is not a new matter; rather, it has been referred to earlier by the jurists. However, if it is a flowing and unstable matter that changes over time it cannot be a way for recognizing the essential requirement of the contract, because it changes the nature and the essence of the contract.

Legislation is a complex process that is organized by ijtihad as a special model of self-reflection and rationality, and "a specialized and proprietary approach to the role play of reason" is one of its constituents. The methodology of ijtihad requires that the tripartite processes of socialization of the actors, the formation of the physical structures, and the operationalization of legislation be formulated in accordance with the truth of ijtihad and its constituents, and be reproduced in accordance with the time, place and social reality. Otherwise, the outcome of the legislative process will not be coherent and effective. Using a descriptive-analytical approach, the case study of negation in the Islamic Penal Code, adopted in 1392, seeks to answer the question of whether the role played by reason in the legislation with a specialized and proprietary approach would lead to a fundamental distinction in validating the legal material and streamlining the law. This question is rooted in the current situation of legislation, which, concurrent with widespread developments, suffers from frequent and multiple production and reproduction of negations which has led to the degradation of the efficiency of reason and the validity of ijtihad in managing social reality. If the validation is done according to a specialized and proprietary approach based on the requirement of the lack of negation, then the apparent and recurrent negations are not produced and reproduced and the validity of the role play of reason and the effectiveness of ijtihad in legislation is revived and promoted.

Based on some reasons in Islamic law, the confession is one of the evidences for proving litigation. There are different views, however, on the number of positive confession needed for proving offenses. Some argue that except exceptional cases, a single confession is generally sufficient for proving offenses, but, others believe that proving offenses generally necessitates multiple confessions. Meanwhile, some jurists and authors distinguishing the crimes related to the divine rights (haqqollah) from the ones related to the man’s rights (haqqonnas), asserted another theory in this respect. The present article, using a descriptive-analytical method, has criticized this viewpoint and concluded that it has many ambiguities and challenges in the fields of concepts and reasons and if it enforced, the judicial proceedings will face some problems.

Regarding civil responsibility, there is an institution called “punitive damage” in the laws of some countries, according to which in cases where the losses are caused intentionally and bearing ill will, the defendant is judged to pay more than just material and spiritual losses for the damage. Since we didn’t have such an institution in Iranian private law, it is of necessity to study and investigate whether to accept it in the Iranian law. The present research aimed at determining the status of this type of damage in the Iranian jurisprudence and law in order to answer whether it is necessary to recognize punitive damage in Iranian private law. This research uses a descriptive-analytical method and note-takings of the national and foreign books and articles are done through library research. Due to criticisms of punitive damage and considering the fact that there are similar legal institutions such as consideration, blood money, and general principles governing civil responsibility, it seems there is no need, for the Iranian national law, to accept this legal institution. The approval of the Act of the Jurisdiction of the Iranian Judiciary on punitive damage claims against foreign states is considered only as a reciprocity act against some foreign states and it should not be regarded as an accepted institution in the Iranian private and internal law.

Repentance is one of the legal instruments for the retribution or the waiver of punishment and one of the establishments of Islamic jurisprudence. The Qur'an has encouraged the people in many verses to repent and it has equalized the repentant people with the purified ones. The Quran says: “Indeed, Allah loves those who repentant and those who purify themselves”. Also, in the traditions issued by the infallible Imams (AS) the repentance and its effects are highly recommended. The repentance is the activity of reviewing one's activities and feeling contrition or regret for past wrong deeds and attempting to correct the action, and it will be accepted if it is done according to the proper conditions. The main objective of this research is to examine the status of repentance in waiving the punishment for the crimes against national security focusing on the punishment of the allegiance breaker from the jurisprudential and legal point of view. The research uses the library research tool and descriptive-analytical method. Anyway, in the jurisprudence and the Islamic Penal Code the repentance for the waiver of punishment is a means of reducing or exempting punishment and it is subject to the fulfillment of the conditions and it can never be a means of escaping the offender from the clutches of justice.

The mitochondrial transfer method is a phenomenon that has been formed in recent years in the light of the progress of medical science in the field of artificial insemination. This method is used to prevent the mitochondrial diseases. Since the origin of the disease in children is the malfunction of the mitochondria of the mother's gamete, scientists transfer the mother's gamete nucleus to the nucleus–free egg of another female. Due to the modernity of this type of fertility, no research has been conducted on its jurisprudential rules yet. Therefore, this article attempts to prove the legitimacy of this type of fertility treatment in order to answer the question as to what the reasons for the legitimacy of this method are. Accordingly, this research, using a descriptive-analytical method, first criticizes the matter considering the opposing theory with reference to the verses and traditions. Next, based on the Quranic and narrative evidences, as well as the jurisprudential rules of no-hardship, no-distress and constriction, no-damage, repulsing possible damage, and also the authenticity of porn and authenticity of righteousness, the mitochondrial transfer method is considered legitimate with the aim of safe fertility and the birth of healthy children.

What are the supervisory responsibilities of the municipality against public places and passages? Is it possible to bind the municipality based on the civil liability rules to compensate for the damages due to the lack of supervision in this regard? This study is a descriptive-analytical research conducted by library and documentary method and it aimed at answering these questions. It is specified that the legislator, in order to protect the citizens’ lives and properties, has delegated due authorities to the municipalities from the steps of designing to enforcement and completion of establishing the public places and passages to have supervision over all phases of establishment including technical and health principles of urbanism. Also, the municipalities are obliged to supervise over the good performance the above-mentioned principles in the maintenance and operation steps. The study proves that the municipalities are bind to compensate for the damages in the case of neglect and administrative fault in their duties specifically in supervision over establishing, operating and maintenance of the public places and passages. Finally, it was determined that the legislator should specify exact measures and regulations for these municipality faults in order for the sanctions to be more effective.

One of the institutions that has less considered analytically from different dimensions, despite having vast applications in law and jurisprudence, is the guardianship of father over the child. This writing tries to investigate the nature of the guardianship of father over the natural child and legitimate child from the viewpoint of right or rule in Imamiyyah jurisprudence and civil law. The study of jurisprudence resources shows that the interpretation of the guardianship in the traditions of infallible Imams (peace be upon them) and the statements of the jurists pertains to the general meaning of the right that includes the rule. Considering, in addition, the capability to waive the right that is regarded by the jurists as the main specification of the right in its specific term, the lack of capability to waive the right of guardianship shows the ruling role of this institution both for the legitimate child and the natural child. Despite the fact that it has not been stipulated in the civil code, since it is followed by the famous jurists, the civil code also agree with that. It is worth mentioning that according to the opinion of the contemporary jurists all of the effects of the guardianship except inheritance are applied to the natural child too.

In Islamic law and Civil Code, the contract of guarantee is considered a possessory contract due to the fact that it is based on the institution of religion and as a result of its possessory effect. However, paying attention to the customary instances of the contract of guarantee, a number of jurists have come to recognize another concept of the contract called customary guarantee with different nature and rules against the idiomatic guarantee. The contract of guarantee in this meaning only makes commitment without transferring the debt to the guarantor and its possession by the guaranteed one. The customary guarantee characterized by the lack of engagement of the guarantor, the lack of need to a fixed debt, the independent commitment of the guarantor is different from the idiomatic guarantee accepted by the Islamic law and the civil code. The present article uses a descriptive-analytical method to examine the customary guarantee as an instance of the general theory of commitments against the idiomatic guarantee which is based on the possession theory. As a result, it can be said that considering the needs of the society and identifying a new concept of the contract of guarantee in the Shi'a jurisprudence, as well as relying on the generalities of the law like the Article 10 of Civil Code, the customary guarantee can be considered valid in the case law too.

Rejection of contract is a widely used concept in law and jurisprudence which hasn’t been researched comprehensively till now. This research seeks to answer whether the rejection as a mere independent sanction contract entails proprietary rules and effects, or it is subject to the rules and effects of other institutions like termination. Therefore, it is necessary to review exactly the institution and presenting a criterion to distinguish it from other similar concepts in the cases of legislator ambiguity to avoid different and probably strange interpretations in the Iranian system of law. According to the findings of this study the rejection of contract both as to the rules and effects is an independent concept of termination. The main consequence of the independence and the difference of these two institutions is obvious in their retrospective effect. It is worth noting that unlike the termination which has no retrogressive effect, the rejection of the contract affects all previous cases, with the exception that the retrogressive effect is eliminated in the case of ineffectiveness of mara'i due to its contradiction to the rights of third party. To determine a criterion for distinguishing rejection of contract from the other similar institutions, whenever, due to incompetence or any conflict with the third party’s interests, the process of the contract’s effects depends on the satisfaction of one of the two parties (members of that contract) or a third party, it should be interpreted as the right to reject the contract.

Nowadays, the process of matching criminal law according to the circumstances of the offender has been of great importance; in fact, to operationalize the strategy of the deterrence of offences, it is necessary to equip the criminal law in proportion to the status of the offender. In this regard, the commission of some criminal offences that is the sexual and gender-based crimes by bisexual and transgender persons who have sexual identity disorder, is at the forefront of one of the most important challenges facing the world's criminal policy-makers. Therefore, taking an appropriate and effective criminal policy necessitates that the physical and mental condition of individuals whose sexuality and gender play the essential role in the specified crimes are taken into consideration. With an investigation into this paper, it is clarified that the activists of the Iranian judicial system have chosen to take a passive strategy against the perpetrators of sexual and gender-based crimes without identifying their bisexual and transsexual disorders. Therefore, there is a serious challenge to the bisexual and transsexual individuals considering the generalization of the attributes the offenders of these crimes to these individual. Thus, this study seeks to analyze and resolve the challenges facing bisexuals and transsexuals as perpetrators of sexual and gender-related offences and related punishments.