نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و سوم شماره 1 (بهار و تابستان 1399)

One of the most challenging issues in the field of jurisprudence and family law is childbearing and the right to demand child for couples. This issue has not been discussed among the ancients and the later scholars; in contrast, the fatwas of contemporaries have explicitly seen in the books of jurisprudence. The lack of argumentative study on the issue by jurists, in addition to believe in the inadequacy of the jurisprudential research in this field, justifies the need for discussion. This article has been done analytically and argumentatively in accordance to the customary collection of narrations on the subject to dismissal. Additionally, to the three existing views of the authorities, this article has adopted a fourth view entitled "Priority of the right of each couple who seeks a child." Last but not least, the result has been confirmed by the necessity of associating with the famous.

The issue of the Islamic Republic of Iran joining the FATF (Joint Financial Action Task Force) has become one of the most challenging issues in Iran's foreign policy. The group has submitted more than forty recommendations and requests to the Islamic Republic of Iran in the legislature, including criminalizing money laundering and terrorist financing. This study seeks to jurisprudentially and legally review the recommendations and offer suggestions on how the Iranian political and legislative system should act towards them. Research

the research is descriptive, analytical and inferential and data collection has been done through library search.

First: According to verses, hadiths and jurisprudential arguments, money laundering and terrorist financing are forbidden; Second: The group's views on the definition and examples of terrorism and how to fight them are contrary to Islamic principles and rules and national interests and the constitution; Third: According to the provisions of the relevant conventions, the possibility of using the right of bet by Iran is ambiguous and doubtful; Fourth: Accession to the relevant conventions is not correct according to the rules of jurisprudence and law and is considered interference in the country's legislative system.

Within the framework of the Islamic ruling authority and in the form of some limited crimes and government sanctions, money laundering and financing of terrorism can be criminalized and punished. Therefore, it is necessary for them to be criminalized independently and within the framework of Islamic principles and rules and national interests in the Islamic parliament.

Public hearing refers to absence of any barriers for people's participation in proceedings. This principle has been approved in international laws and Iran’s constitutional law. This right can be prevented only in exceptional situations. In this research, jurisprudential basis of this principle has been studied through a descriptive-analytical method. The practice of the Prophet and infallible Imams in holding public hearings in mosques, where people gathered, is the most important reason for proving this principle. It is also supported by Qur'anic verses and narrations related to social issues, the code of bidding good and forbidding evil, necessity of general supervision over actions, and prevention of violations and suspicions; furthermore, the principle is in line with rational approach. Although in the application of it, the law distinguishes between civil/criminal, private/public courts, if the fairness of the trial depends on openness of the trial, it would be necessary in all trials due to the obligatory premise and other rationale. In this way, the range of exceptions can be limited as well.

The classification of waqf (endowment) as public and private is one of the most important typologies in this field. The heterogeneity in the nature of these two types has become the basis for issuing sets of different rules regarding them. Nonetheless, in the field of law, the identification of and the distinction between the natures of the public and private types have been addressed only briefly. In this regard, with the support of the scholarly literature on jurisprudence, a precise criterion can be developed and established for the recognition of distinction between these two categories, which can serve as a basis for the difference among the rules. If the benefactor considers definite individuals as beneficiaries and they are ascertained in the composition of the endowment, then the endowment is private. However, if the benefactor has not regarded definite and ascertained individuals as beneficiaries, and, instead, the fulfilment of material or spiritual needs of a body of indefinite and fluctuating body of persons has led the benefactor to give his/her consent to the composition of the endowment, then the endowment is of the public type. Hence, private endowment is the vesting of money or property for the use or profit of definite and ascertained individuals, while public endowment is about vesting in an uncertain and fluctuating body of persons.

metaphor in the sense of the word transferred from the meaning of the lexical subject in another sense, is one of the realities of the Arabic language that lexicographers have discussed its lexical aspects.  The Qur'an introduces itself as a book revealed in the fluent Arabic language, and on the other hand, there are ideological issues about the names of God and their confinement, and other issues. These factors have caused differences among scholars in the discussion of the metaphor existence in the Qur'an. This question has been researched from different angles and scholars of the principles of jurisprudence have also entered into this subject in accordance with the word discussion in the science of the principles of jurisprudence.  Some have accepted what is metaphor in the Qur'an and some have denied it, and others have given a detailed ruling between religious and non-religious rulings.  Each of them has presented arguments and argued them from different angles and criticized and rejected the dissenting opinion. Given the strength of the arguments of the proponents and the weakness of the arguments of the opponents, the preference of the research is to accept the metaphor occurrence in the Qur'an as a fact of the Arabic language.

Among the functions of poison, has been for the committing murder. Jurists have various ideas on the evaluation and analysis of murder by poison. The reasons are the differences in the lethality of the poison, the effect of the poison based on the circumstances of the victim, and the quality of its use. These differences have caused the jurists to have different opinions in explaining the type of murder and quality of its punishment. As a result, a group of jurists consider the above-mentioned murder as intentional, and retribution is necessary, another group considers it as quasi-intentional and subject to diyeh. The present article uses a descriptive-analytical method to examine the verdict of murder by poison in Islamic jurisprudence in a reasoned manner. The result of analysis and examination of the evidence is accepting the intentionality of the murder by poison and retaliating the murderer at the request of the parents and other conditions, with a means other than poison to ensure that the punishment is not excessive.

The most famous view about "beating" which is represented in the verse: (An-nisa: 34) is beating the women or with some alleviation, hitting them with toothbrush stick. But due to: "many jurisprudential and moral generalities", "uses of beating in other verses of the Quran, Sunnah (tradition) of the Prophet (PBUH) and the use of it in Arabic language (especially without preposition)", beating wives shouldn't be assumed as "kicking them"; because with focusing on narrative sources (ravayaat) and dictionaries, there would be another explanation apprehensible from the verse, that is the intention behind beating women, is a practical reaction (probably gentle) in order to show the husbands nervousness about the future of their marriage life, and bringing back the peace between them. This reaction could have examples naming: permanent change in the behavior like Strictness in Alimony (as mentioned in the narrations (revayaat)) that is applicable by husband considering the situation. Also considering implication of the word "sivak" used in the hadith sources, can be another proof for (mild) practical reaction.

Murder in the sacred months is one of the crimes (criminal matters) affecting the aggravation of punishment, which increases the blood money by one third. The well-known opinion of the jurists implies that killing in the sacred months and the sanctuary of Mecca results in and requires a full Diya plus a third of a Diya. Article 555 of the Islamic Penal Code explicitly states this issue. The predication of killing (murder) to deliberate killing can be withdrawn and defamation does not apply to manslaughter. The defamation and disrespecting of the sacred month may be concluded when the killing is intentional. In the case of manslaughter, the rule requires that no more than one full ransom (blood money) will be paid by the convicted. In this article, we focused on the philosophy and criterion of aggravating the Diya (blood money) and the views of the pros and cons were reviewed. It is suggested that Article 555 will be revised and the non-aggravation of Diya in manslaughter seems to be more convincing and plausible.

The coincidence of the alal yad rule on the illegal transmission of data-message has faced with substantive difficulties, which must be interpreted based on custom. What is understood from the appearance of the word "acquisition" is palpable reception. In the cyber space, acquisition doesn’t imply the mentioned meaning and is merely the transmission of a series of information. Some scholars believe that the word acquisition does not appear only in the palpable reception, but also with the affidavits that exist from the verses, the subject of this word is expanded, which is also totally true in terms of data-message transmission. Since the data-message is considered ascorporeal property, in payment case the same existing credit will be refunded. The present study aims to compare the terms of acquisition and payment on illegal data-message transmission. The result is that transmission customarily, is an example of the meaning of acquisition that is supported by some evidences that.

There is disagreement among Muslim jurists about the obligation of khums on non-spoils of war, especially the gains of gains. Imamiyyah jurists agree on its necessity and Sunni jurists have issued fatwas on its non-necessity except in Rekaz, ie precious treasures. The origin of this disagreement, is related to the different interpretations of the sects of the word "spoils" in the forty-first verse of Surah Anfal, and in non-Qur'anic reasons for the necessity of khums on "ArbahMakaseb" (business profits). Other jurisprudential sects in Khums have referred to the prophetic hadith "and in Al-Rukaz Al-Khums", but the Imamiyyah have also relied on the hadiths of the Ahl al-Bayt (AS). According to the author, the difference between Sunni jurisprudence and Imamiyyah jurisprudence firstly, is due to the doubt and preference of evidence that such a procedure is not specific to the documents of Imamiyyah jurists, but it is common among all Islamic religions and is considered the accepted principle. secondly, its roots should be found in the jurisprudential interpretation that the jurists of each religion have presented from the reasons for the necessity of khums, which, of course, is not limited to the Imamiyyah religion.The present article intends to provide a critical studing of the theory of monopoly of khums on spoils of war and various theories about Rekaz based on the analysis of inferential arguments for the necessity of khums on gains by Imamiyyah jurists and its comparison with Khums of Rekaz by Sunnis.

Retaliation against an intentional crime is the right of the victim or the guardians of the tail, but a person may be killed by another before exercising that right. In this case, how will the rights of the guardians be realized? If the murder is intentional, will the murderer retaliate or receive ransom or even amnesty for the parents of the first victim? This research, which has been done by descriptive-analytical method, shows that firstly: the law is silent about this assumption and it has not been explicitly addressed in jurisprudential books, so it needs to be analyzed. secondly: Considering that the precedence over the entitlement of the right is considered prior to the precedence of the domination of the right, therefore the exercise of the right by the parents of the first victim is more preferable. Therefore, considering the priority of entitlement to the right, it seems that retribution or amnesty, as well as the conversion of retribution into blood money, is within the authority of the first-degree parents.

while Article 225 of the Islamic Penal Code recognizes the punishment of stoning in  adultery. Article 228, assumes that when the other party to adultery is immature, the adulterer is entitled to only one hundred lashes. but the punishment of adultery by adulterer with an immature girl, has been silenced without any mention to it. jurisprudential sources indicates  that Imami jurists do not have an unified sentence on this subject; So; the majority of jurists entitle the adulterer and adulteress to a hundred lashes, some have decreed to stoning of adulterer and adulteress And the third view make a differentiation and strongly believe that adulterer deserves to stoning and adulteress deserves to one hundred lashes.This study, with descriptive-analytical manner, re-reads the reasons of this verdict and surveys the received narrations. This article – in addition to reinforce the detailed theory (non-famous viewpoint)- prefers it. The main finding of the research indicates that cited Reasons such as the generality of narration of Abu Basir, the principle of innocence from stoning and the existence of suspicion, do not have adequate authority to repudiate the punishment of stoning to adulterer. The adulterer is condemned to punishment of stoning when the adulteress is non-adult girl. While the adulteress- in assumption of adultery with non-adult boy- is condemned to one hundred lashs. In addition, with the aim of removing ambiguity and conciseness from the above-mentioned article, it has been suggested that the legislator, by adding a note to Article 228, specify the punishment of "stoning" for adulterer in the case of adultery with a non-adult.