فصلنامه پژوهش های فقه و حقوق اسلامی
سال هفدهم شماره 1 (پیاپی 62، زمستان 1399)

Substantive Criminal Law has its roots in the dynamic and fabulous regulations of Islamic Jurisprudence. One of the principles denoting the capacity of the Fiqh teachings in conformity and even priority over the teachings stipulated under New Penology is the ‘Daar Principle’. The present paper attempts at clarifying the strategies employed under Daar Principle and the related issues aiming to determine the harmony between reconsidered Daar Principle strategy and twin strategy in New Penology. Noting that the ultimate aim of all the sciences is to reach at unity and bright future without having any kind of prejudice in their ways. The present research employs descriptive- analytical method in order to analyse the strategies mentioned herein. The paper concludes that the restriction of the scope of Daar Principles denoting the duality of its criminal policy may be considered as a proof for its harmony with Twin Strategy in New Penalog.

Inheritance is one of the most important means of transferring property to heirs. Although the transfer by inheritance is forced and involuntary, sometimes the legator for some reason does not like the transfer of his property to one or more heirs. According to jurisprudence, the Iranian legislature has invalidated a will to be deprived of inheritance. But is there no legitimate way to deprive the heir of the legacy? In this article, we look at common solutions and their validity. The use of a peace contract and the condition as an integral are common formats for this purpose, some of which are valid and in some cases are hindered. Among the common solutions, the commitment to transfer the share of the inheritance after the death of the legator in the form of peace or condition as an integral is considered as an efficient and valid solution. A will to be deprived of inheritance can also be considered as a legacy will for another heir and can lead to the deprivation of the heir from one third. In general, it can be said that there is no solution that can deprive the heir of his inheritance completely without compromise.

Article 202 of the Islamic Penal Code, adopted in 1370, states: "(If the thieves' fingers are cut off and after the execution of this limit, another robbery of him is proved that the thief has committed the crime before the execution of the sentence, his left foot will be cut off). The legal documentary of this article is a narration from Imam Baqir (AS). The jurisprudential documentary of this article is a narration from Imam Baqir (AS), which is expressed in two ways by Ali Ibn Ibrahim and Sahl Ibn Ziad. A group of jurisprudents with the purpose of this hadith sentenced the next execution. On the other hand, a group of jurisprudents also considered the narrative to be weak and the unit's news, and the rule of law, which calls for divisions between the two limits, or the preservation of blood, has canceled the next punishment. The legislator, in the new Islamic Penal Code of 2013, has removed Article 202, which appears to be the supersede.

Despite the consensus of jurists (fokaha) in safe custody of property as one of the punishable conditions when the larceny happens, most jurists made an exception in fruit case. It means that stealing the fruits would not subject to punishment namely cut off the thief's hand, according to some narratives.  Some of jurists, however, believe that there is no differentiation in punishment between stealing fruits on the tree and otherwise. They argue that if the tree is in safe custody, the one who stole the fruits would be subjected to HADD punishment because of larceny. The believers’ claims of first quotes invoked some narratives to conclude that stealing the fruits on the tree would not subject to HADD punishment, even though the tree was in safe custody. They believe that there are some verses and narratives about stealing that can be ascribed to. The believers’ claims of second quotes, on the contrary, argue that these verses and narratives provide no proof of eligibility to be ascribed to. Moreover, these narratives would be veracious if the tree was not in safe custody according to Isaac Ben Ammar. After reviewing the testimony and evidence received from jurists, the authors arrive at the conclusion that: First, some of narratives cited by the believers’ claims of first quotes are veracious. Second, although the punishment of cutting off hands for theft (stealing fruits on the tree) appears quite clearly in a narrative cited by Isaac Ben Ammar, there are some reasons doubting the veracity of this punishment which consequently lead to failure in implementing the punishment as cutting off the thief's hand. One of these reasons is the appearance narratives indicating there will be no need to cut off the thief's hand, if the case is the stealing fruits on the tree and the tree is not in safe custody namely it is not a sin to be deserving of punishment. The other reason is the famous claim of jurists who believe that stealing the fruits on the tree would not subject to HADD punishment, even though the tree was in safe custody.

Financing is one of the most important issues in the resistive economy. There are a variety of financing options available in Iran, including the capital market, but given the risk aversion of investors to enter this market, Islamic financial instruments such as securities emerged and were highly sought after. Islamic financial instruments known as Sukuk bonds have been widely accepted. Sukuk Al Ijara are the most applicable Sukuk in our country. One of the unprecedented topics in this field is the study of executable options as a means of terminating the securities. In this study, at first the basic legal and jurisprudential foundations of options such as rule of prohibition of detriment, interpretative law, the rule of will power, intention and consent of contract's parties, expediency, protective theory were described. Then, Enforceable options in Sukuk Al Ijara bonds as predictive and offsetting measures of contracts by mentioning examples of each option was examined. The results of this study indicates that it is possible to execute  following options  such as defect, deceit, lesion, conditions, unfulfilled conditions, inspection, sales unfulfilled in part, impossibility of delivery and  insolvency in relations of the contract's parties.

The principle of innocence from fundamentalist jurists’ viewpoint is as a judgement for not proving the duty for the obligee in case that the principle of the duty is doubtful. Fundamentalist jurists have explained the general conduit of the principle of innocence as doubt in duty and they have considered it currently in all suspicions of sanctions and obligations, in contrast to the Akhbaris, they consider this principle to be current only in suspicions and obligations and also they are cautious in the face of suspicions of sanctions. Attention and contemplation in the view of the jurists in all time showed the evolution in the implementation and citation of this principle in the history of Imami jurisprudence. In the earlier periods of principled jurisprudence, the issue of the principle of innocence was discussed along with the issue of presence and debauchery, but in later periods fundamental jurists focused on these two separate aspects of the principle of innocence. The discussion of the presence and absence of the observer of the wisdom of things in terms of the primary titles has been related to the use of ijtihad arguments, but in contrast to the discussion of the principle of innocence and precaution, the observer of the judgment may doubt in the real judgment.  In general, the authors in this paper studied this issue from the fundamentalist jurists’ viewpoint and contrasted it with other viewpoints.

In Iranian jurisprudence and law, the issue of reluctance to commit crimes against physical integrity is different from French law. In Iranian law, reluctance to kill is not permissible for murder in the opinion of most jurists, but reluctance in a crime affects the member and retribution is directed at the reluctant. In reluctance to commit a crime on a member, the fact is that the person threatened by the soul and the subject of the crime is a member has been effective, but if the person threatened by the soul and the subject of the crime is also a member, it has been silenced in jurisprudence and law. We conclude that the threat to the soul or limb must be higher than the subject of the crime in order for reluctance to be effective. Therefore, we came to the conclusion that what is not a license for murder is the order to kill, not reluctance to kill, and in the case of murder, the person in charge has the intention, will and full authority to carry out the order. The French Penal Code, enacted in 1992 (effective 1994), legislates reluctance to commit murder in the context of generalities and Article 2-122; The article considers reluctance as a general rule in all current crimes and states that the perpetrator has no criminal responsibility.

The present study examines vilāyat-i faqī (jurist’s guardianship) on a child without a specific guardian. Well-known jurists, assuming the absence of a father or paternal ancestor or the absence of a will by the father or paternal ancestor, consider the ruling jurist as the exclusive guardian of such a child. This view, in addition to having no strong reasons, faces several opposing arguments. This article first examines the inclusion of the reasons of vilāyat-i faqī in the two approaches of absolute vilāyat and vilāyat regarding the affairs of hisbi, and then concludes by providing reasons from verses, narrations and historical reports that the Holy Shāri’ did not have the opinion of the jurists but only demanded that the interests of the orphan child be observed, which is a customary stance. Finally, it is stated that the emphasis on the exclusive guardianship of the jurist and diminishing the role of the customary guardian like the mother and other relatives of the child is the product of and is a matter of the rationality which stands for past and old eras, perhaps emphasizing it in today's society is not only wrong, but also it will not have the appropriate efficiency that it had long ago.

In criminal offenses with restitution of property, such as robbery and fraud, if found guilty of the said crimes and attributed to the accused, in addition to the sentence of legal punishment, the accused is also sentenced to restitute property of theft and fraud by law. If the plaintiff files a claim for delayed payment of damages along with a criminal complaint, given that there may be several times in criminal cases (1. Time when theft or fraud was committed; 2, Time for filing a complaint in the court; 3. Time of final verdict), the court will sentence the accused to pay damages for the loss of value of the money, called delayed payment, at a specific time. According to Article 522 of the Code of Civil Procedure, which considers the claim to be the basis for delay payment in the above cases, one of the abovementioned times will be selected as the claim. However, it can be added that since Article 522 considers the basis of calculation to be the time of claim, should the liability determined so that the time of claim may be regarded as the basis of calculation. Whenever liability has not yet been determined or the accused refuses crimes (robbery and fraud), and on the other hand, the amount of debt is still uncertain, should the time of filing a complaint be the basis of calculating delayed payment or one of the abovementioned times should be the basis of calculations? It seems that the time for calculating delayed payment of crimes with restitution of money is the time when theft or fraud was committed.