فصلنامه فقه
پیاپی 106 (تابستان 1400)

One of the most important issues regarding waqf (endowment) is the scope of the Islamic government guardianship in nominating and dismissing the guardian. This problem has found a special place after the Islamic Revolution of Iran and the governance of the jurist for the affairs of the country, and since no comprehensive and integrated research has been conducted regarding this issue, the scope of the government intervention in the nomination and dismissal of the guardian of special and general awqaf (the plural form of waqf) is not that much clear. Sometimes a situation arises for the guardian that undoubtedly requires the intervention of the government such as in cases where the guardian does not have the necessary competence and the continuation of his guardianship over the Mawqufeh (the item that has been endowed) can ruin the interests of the mawqufeh and mawquf Alayhim (The person or people to whom the waqf is allocated). In these cases, a primitive confrontation can be imagined between the guardianship of the government and the guardian, and through a proper jurisprudential analysis, the guardianship of the government on the guardianship of Waqif (The person who endows the item) and the guardian is prior to the Mawqufeh. In the event of the death of the governor, the guardianship of her appointees in the position of the guardian of waqf is continuous until the living governor announces a dismissal. This study, through the library method and search in the above generalities and applications, seeks to clarify the limits of the guardianship and the governor's authority in determining, nominating, and dismissing a trustee in the waqf institution with or without dominating the waqif as well as the status of guardians appointed by the governor after his death.

In many cases, there is no quantitative diya (compensation paid to the heirs of a killed person or to somebody who is injured) for injuries to the body organs, and compensation must be determined by the courts. Today, the methods proposed by jurists to determine the arsh (compensation specified for offences relating to various kinds of hurt or injuries) are associated with failure. Methods such as enslavement and obtaining the difference between the price of a defective slave and a non-defective slave, to determine the arsh, which in addition to the impossibility of execution has other drawbacks. The Penal Code also includes cases in determining the arsh that cannot be proven according to religious evidence. It remains to be seen whether there is an applicable method for determining Arsh among jurisprudential sources. This current paper intends to present the jurisprudential criterion for determining the arsh through examining the available sources. The study of the mentioned sources indicates that in the existing narratives, the determination of arsh from the amount of diya has been left to the wise. Since the method of calculation is not considered by the Shari'a, in order to realize the rights of the victim, the ruler, with the help of two trusted experts, must calculate the crime from the amount of the organ's diya in the most accurate way that the rights of the victim can be exercised. Of course, with the advancement of science, more precise ways to determine the arsh may be found, which is closer to the principle of justice and fairness, in which case such a method should be the criterion for determining the arsh. The calculation is based on the quantitative diya of the organ and the level of injury in terms of length, width and depth of injury, or the amount of crime in terms of the organ disability, emphasizing that the other sides of crime such as the amount of recovery time and its effect on health are not considered in the amount of the arsh. As a result, the criterion for determining the arsh is the characteristics of the crime and the injury and the quantitative diya of the organ.

If the premeditated murderer, in addition to being sentenced to qisas (retaliation), has also been sentenced to death for hadd (punishments that under Islamic law are mandated and fixed by God), such as moharebeh (waging war against God), according to Article 133 of the Penal Code, qisas is prior to the execution of hadd, and the avengers of blood are asked to retaliate. However, if the avengers of blood refuse to demand the qisas immediately, the premeditated murderer will be executed as hadd. The problem of the current paper is whether in this case the qisas nafs (qisas for life) turns into diya (blood money) and is subject to death in Article 435 of the Penal Code or not. The law regarding the conversion of qisas nafs into diya is vague in this case, and this issue has not been specifically dealt with in jurisprudential books. In this paper, legal articles as well as jurisprudential views have been examined and a set of arguments and evidences have been used, which based on the hypothesis of this study, with the execution of the premeditated murderer, the issue of qisas is obviated and the conversion of qisas into diya also lacks valid legal evidence, and from a jurisprudential point of view, the view of not turning qisas into diya is stronger.

According to Article 448 of the Civil Code, throwing down all or some of the options can be stipulated in the contract. At present, in most purchase and sale contracts, there is a stipulation for throwing down enough options, which has a legal validity according to the mentioned law. This is while the issue of the invalidation of the mentioned stipulation in the option of inspection among the Imamiyah jurists and legal experts has been raised for a long time. Sheikh Ansari, by proving the essential difference between the mentioned stipulation of the option of inspection and other options, has proved that the mentioned stipulation - where the identity of the sold item is the product of the description of the seller - requires a conflict in the obligations of the sale, and therefore based on this stipulation the contract can be invalidated. Therefore, considering the essential difference between the option of inspection and other options, the question arises that how can the generality of Article 448 of the Civil Code be justified? Based on the findings of this paper, which was written in a descriptive-analytical method, his argument can be confirmed, and therefore, the mentioned stipulation can be invalidated. However, it does not seem to invalidate the contract. Therefore, it is suggested that the legislator, by adding an amendment to the above article, exclude the option of inspection.

A guarantee contract is defined in Article 684 of the Civil Code as guaranteeing the debt of another person and according to Article 698, the guarantee causes the transfer of liability. In addition, according to Article 691, a religious guarantee for which the cause has not yet been clarified is void. It is stated from the above-mentioned articles that according to the legislator, the subject of the contract should be transferable to another person, which means that it must be general. As a result, it is not possible to guarantee a contract in the realm of material property due to its externality and partiality, as well as its irrevocability. The terms of the Civil Code are ambiguous in this regard, because on the one hand, it has chosen to transfer the liability and on the other hand, in Article 697, it has accepted the guarantee of responsibility, part of which is the guarantee of rejection of the material property. There is no common law that is decisive in the dispute, the dispute in jurisprudence has not been resolved, and the religious texts have not written anything about it. However, according to Article 167 of the Constitution of Iran, the ruling on the issue must be determined based on jurisprudential criteria. Therefore, the issue of the present study is whether, according to the rules of jurisprudential-legal principles, it is possible to guarantee a contract of guaranteed property. That is, whether there is a possibility of development in the concept of guarantee or not. The conclusion is that based on the jurisprudential-legal rules and principles, it is not necessary that the subject of the guarantee of the contract be general, so there is no problem to guarantee the material property.

The urgency and certainty of the execution of final criminal sentences are emphasized by the Sharia and the penal system. However, in some cases, according to the propositions of Islamic jurisprudence and - consequently - the penal system, such as qisas (retaliation) of a pregnant woman until after childbirth, and in case of fear of losing the baby until the appropriate time, this type of urgency is prohibited. However, the scope of this prohibition has not been well clarified due to the lack of specific research. Therefore, the question of the scope of this prohibition in conflict with the avenger of blood's right is an issue that needs to be explored until the answer stage. How to respect the right of the avengers of blood and preserve the life of the fetus in the shadow of the conflict between these two rights is one of the basic rules of Islamic jurisprudence and the Iranian penal system, which legitimizes the commitment of judicial authorities and avenger of blood. The current study has been carried out with the aim of reducing the applicability of this ruling and removing ambiguity from the legislator's approach in the light of recognizing the arguments related to the aforementioned ruling and explaining the scope of action by eliminating the conflict between the two rights. Achieving this goal in the light of comparative description and analysis of jurisprudential propositions and criminal law is possible through collecting library data, the result of which is to explain the reduction of the prohibition and prevent its possible consequences in the criminal justice system of Iran.

Ijtihad is one of the most important conditions that jurists have set for the judge. This viewpoint is based on the first rulings. The question now is whether it is possible to decree according to permissibility of muqallid's (the person who performs taqlid) judgement, based on secondary titles such as urgency, fear, expediency, etc. The jurists disagree on this point. The majority of them seem to be right in the permissibility of the muqallid's judgment. This study has been carried out with the aim of recognizing the scope of this permissibility and its conditions and the duties of each jurist and the muqallid's judge, assuming the realization of secondary titles of urgency and expediency, through descriptive-analytical method in the field of jurisprudential thoughts and library date collection method. The finding suggests that the ruling should be in the circle of Shari'a, the most important should take precedence over the important, consultation should be used in recognizing secondary titles, and the muqallid should decree as a judge according to the fatwa of the appointed Mujtahid and Consult in judicial affairs. In addition, the ruler has duties in relation to a non-mujtahid judge; including creating a suitable context for his judgment, legitimizing the judgment of non-mujtahids and prioritizing the best to the better.