مجله مطالعات فقه و حقوق اسلامی
پیاپی 24 (بهار و تابستان 1400)

Nowadays, using the victim-offender participation model in the judicial process has become a common solution in the criminal policy of countries Which is much broader than the traditional view of them in the system of crime evidence. In other words, the correct intervention and participation of the parties to the crime in the criminal proceedings process by completing the probative phase and focusing on the evidence phase in order to fulfill the aspirations of the criminal justice system emphasizes the beneficial effects and results of the trial in society. This model is considered as one of the important components of the relationship between the legislative and judicial criminal policy of countries, regarding the extent of interference of victim- offender with the participation of the people in the criminal proceedings. Iran's Code of Criminal Procedure has shown its willingness to use this model by anticipating the provisions on mediation. The participation of the parties in the trial is not only accepted by the Islamic system, but it has also been highly emphasized. This descriptive-analytical article seeks to explain the pattern of mediation in victim-crime participatory litigation by emphasizing the position of this form of litigation in Iranian criminal law and the Islamic legal system. The results of this study show that there is a semantic difference between the patterns set in common criminal policy and what is called mediation in domestic laws and regulations. However, their principles and basis are the same in the legal system and customary regulations. Failure to pay attention to these principles has led many to mistakenly consider mediation in criminal procedure as a manifestation of restorative litigation in Iran.

One of the strongest and most important instincts in human nature is the sexual instinct. This instinct can be a threat to the human generation even though it guarantees human's survival. Out of the law's sexual relationship is considered among the offenses which threats one of the Islamic society's values. This research is explanatory- analytic. The aim of this article is to analyze Islamic criminal policies and approaches regarding prevention of sexual offenses. Islamic criminal policy base on the Holy Koran and tradition as the main source of Islamic jurisprudence has presented some approaches, for prevention of sexual offences. This result shows that Islam works according to special basis and resources regarding sexual offenses base on the basis for prevention of sexual offenses presented some non-criminal approaches. Which are mainly sociological. Such as training and cultivation, upbringing and teaching, creation of controlling internal power, recognizing the role of family, economical satisfactory, controlling look at the other, avoid mixing, correction in men and women's relation and delinquency. There are also some other preventive ways which are due to humanity of human such as giving insight, strengthening of faith, virtue, God being witness, propagation and facilitation of marriage as a preference. Therefore it can be said that prevention from crime is the most effective way to fight against social crudity such as sexual offenses.

Studying the sentences of jurists and legal experts concerning the definition of contract and enumeration of its effects, one can reach the conclusion that in their view, reliance upon the intention of construction and creation of a change in the world of mind are two inseparable features of contract. This approach has caused the term “contract” to be merely used in the course of time in its true meaning and the void contract to be identified with a contract that has not been sealed. Nevertheless, it seems that although both abovementioned states are the same in failure of creation of an effect, void contract is a real phenomenon that in some cases can create effect. The practical outcome of this claim is clear in such cases as the option of contract invalid in part, right of termination as a result of the nullification of the condition, even the principle of reduction of single contract into several contracts. Having assayed the ideas of the jurists and the Iranian laws, authors of current essay believe that the term “contract” is coined to refer to both correct and void contracts and thus, contract is considered to be a source of division and not a mentally posited entity that is taken as a real phenomenon.

The role of enjoining the good and forbidding the evil in preventing crimes related to social networks Fundamentals, resources, opportunities and challenges Abstract Social crime prevention is more fundamental than situational prevention, but the high cost and late achievement of the result have made criminal policymakers less likely to pursue social prevention strategies. However, in different cultures, strategies can be adopted for this type of prevention that are welcomed by the public to reduce the scope of crime to a large extent with public participation. One of the methods is enjoining what is good and forbidding what is evil, which has been approved as a religious duty by the holy shari'a and the constitution of the Islamic Republic of Iran, but it has still been neglected. . This article seeks to show how enjoining the good and forbidding the evil can, as an example of social prevention, eliminate the context of crimes, especially crimes related to social networks. Enjoining the good and forbidding the evil is not only a religious solution and a religious duty, but also has rational and logical foundations, and therefore in non-religious countries, it has been welcomed by policymakers under the title of public oversight. Accordingly, in addition to religious principles and sources, we have also explored rational and legal principles and sources. Of course, the implementation of this duty faces many obstacles and challenges. created by forming parties and non-governmental organizations and strengthening and supporting them, and this tool should not be used politically or factionally, and those who perform this duty should not be held accountable. Also, the conditions and levels of enjoining the good and forbidding the evil must be carefully observed and it must not be exploited as a tool, otherwise it will lead to the opposite result. .

One of the results of the marriage contract is the marriage license of the couple. The certainty of this license is conventional intercourse, but does it include a warrant in Dubai? Absolute permission and prohibition on the condition of the wife's consent are the three principles that have been argued for each of the narrations. The similarities of the narratives of authorization with those of conditional authorization have led some to believe that these two narratives are one and prefer the non-excessive version of the term to include the consent of the wife to the authorization and some have narrowed the narrative. Taken together, the narrations are known as Permitting and Prohibition. By relying on evidence the probability of Abi Ja'far's multiplicity of narratives is reinforced and the issue internally bound up in the debate. since the condition of female consent is central to all unconventional arguments, and the narrator's question is the origin of the verdict, the absolute narratives are not expressed in terms of female consent. Thus, the narrative of Abi Ja'far's remains unchallenged and the authorization of this act is bound to the consent of the wife. all narratives in Forbidding are either corrupted by the document or by implication, so they are not capable of conflicting with the permissible narratives. Of course, due to the frequency and popularity of the fatwas, the weakness of the prohibition narratives does not prevent the sentence from being disgusted and this act is considered to be abominable.

One of the new issues in the field of medical fertility is the use of molecular biotechnology in the correction of genetic diseases by artificial insemination of two different eggs in which the defective egg nucleus is isolated and implanted in the cytoplasm of an egg taken from another woman. It is then inoculated with male sperm. In this research, which is done by inferential method, the reasons that may be presented to prove the sanctity and prohibition of genetic interventions are reviewed and then by determining the reference principle and explaining the reasons for the legitimacy of treatment, explaining the jurisprudential criteria and rules of grammar. Genetics deals with the repair of eggs in the process of human reproduction, and it becomes clear that, according to the first principle, genetic modification is not in itself an obstacle if it is intended to correct physical defects or cure disease. And any genetic engineering or operation that poses a risk of possible birth defects or defective changes in human existence will not be permissible.

Aleatory contract is among contracts that are characterized by social transformations with many practical and practical implications such as different types of insurance contracts, pre-sales contracts of artifacts (Contract for Production), contracts of floating exchange (price), etc. Despite examples of these contracts in regulations, legislators have no statutory provisions about them. Therefore, the nature, rules, and effects of these contracts are ambiguous in Iranian law. The lack of proper definition about these contracts in rules has led to controversy over the contract definition and nature. Some lawyers have not considered an independent nature for these contracts and called them suspension contract, marriage contract, chance contract, and so. The issue makes problems for recognition of aleatory contracts nature, their terms and effects as well as it adds to existing doubts. Thus, comparing aleatory contracts and related contracts determines that the contract has independent nature and specific rules and regulations.

The Takfir thought has been able to reestablish itself many times through the use of two major Islamic sources ,the Quran and the Sunnah ,as well as citing some differences of jurists throughout history and imposed a great deal of damage on corpus of Islamic society . So it was appropriate to explain its intellectual foundations and exposed to public opinion .this research examined the historical background of Takfir thought and evaluated its major jurisprudential foundations from religious texts (more in Sunnah) as well as the objective debris of this stream of thought and proved that none of its jurisprudential auxiliaries were capable of proving the religious legitimacy of this process and its consequences.

Ijtihad has no meaning in the real sense of the presence of the Prophet of Islam and the first movements of ijtihadi have necessitated a short while after the accessibility to the source of revelation. When the caliphate's turn came to the second caliph, the storm of the Islamic conquests of the east and west of the world quickly swept through that era, and it was not until the Islamic revolution spread across the width of the two empires of the Eastern Roman Empire and the Sassanid Empire. Major political developments from Islamic conquests over a short period of time could have been the source of great changes in jurisprudential knowledge and the principle of political rule was established, but the caliph restored all of the public and political institutions of the newly created lands to its previous structure and allowed this jurisprudence to enter into legal areas Did not give a public rights. The second caliph according to his personal morals, went on to worship Ejtehadat. The letter of the second Caliph to the Shori'ah Ghazi is considered as the first charter of ijtihad and the giving of a fatwa, in this charter Ijtihad is considered very difficult and only a choice for necessities. The process of issuing fatwas and ijtihad during the caliphate of Usman continued in the same way. At the same time, a group of Companions who were known as the jurisprudents, were ijtihad.

One of the most important issues of today’s society is usury since the last years. Although it is denied in the religious emphases, it is unfortunately increasing in our present society, so recognizing the criminal policy is important to control it. The issue of usury is a subject blamed by the religious doctrines and since the Muslim countries such as Egypt is trying to enforce the religious affairs so as Iran does, recognizing their criminal policy about usury and comparing it with the criminal policy of Iran can be an effective step for the realization of the Islamic economy. So, it is tried to examine the guilt of usury in Iran and Egypt’s criminal policies in this article by an analytical method to recognize the suitable criminal policies for encountering the guilt of usury. In Iran, it seems that the answer to government usury is a general deviation, and in Egypt, in special circumstances and without jurisprudence, the answer is government, and in other cases the answers are comprehensive.

one of the financial obligations in Islam, which is legislated by the philosophy of poverty alleviation from society and is considered as one of the financial resources of the Islamic government, is Zakat. According to the text of the Qur'an, "poor" along with mentioning "poor" is one of those entitled to receive zakat, but differences in the meaning and nature of the poor and the poor, the criterion of poverty and wealth, and the amount of zakat paid to the poor are among the ambiguities that need to be explained. The research findings indicate that conceptually, the poor have a weaker financial situation than the poor, and the criterion for achieving poverty and wealth is custom; In addition, the payment of zakat in the amount of satisfying the normal needs and needs of the recipient of zakat is a suitable amount and criterion for the amount of zakat payment to the poor.

According to Article 72 of the Constitution, the contradiction of the laws of the Islamic Republic of Iran with the principles and rules ofthe official religion of the country has been denied and the jurists of the Guardian Council are also obliged to protect this important issue. From this point of view, considering the disputes that can be seen in the jurisprudential documents of Article 250 of the Civil Code, its study has a special necessity. According to the mentioned article, the condition for the effect of permission in a usurious contract is that it is not prior to rejection. However, the documents of this promise, which is in fact the famous jurisprudential promise in this discussion, including consensus, the decline of the title of the contract, the rule of domination and the principle of istihaab, are disputed and discussed. On the other hand, the Sahih of Muhammad ibn Qays is a compelling reason for another saying, that is, the effect of prior permission to reject; Therefore, according to the studies conducted in this issue, it seems that it will be necessary to amend and revise the mentioned article.

There is not a unique opinion in slamic jurisprudence on the basis of requirement of wife’s alimony against her husband. Majority believes that obedience is the cause which obligate the husband to pay alimony. But Civil Act apparently does not consider obedience as a condition of wife’s entitlement but recognizes her disobedience as an obstacle to her entitlement because according to section 1102 of civil Act, upon concluding marriage contract, the rights and obligations of couple come to existence and one of these obligations is the debt of husband to pay alimony although under section 1108 of the Act, disobedience by wife removes the husband’s debt. On this basis what requires the payment of alimony to wife is the conclusion of marriage and hence so long as the contract exists, the wife is entitled to this right and even she may claims for her future alimony. It seems that notwithstanding disagreements, this subject is justifiable also from the viewpoint of civil procedure regulations.

Judge independence guarantees fair hearing. Famous jurisprudents consider withdrawal of judgment for Mojtahed and consider his sentence to be effective. But according to note 3 of the Civil Procidure code: "If the judge is a mujtahid and consider the law unlawfull, the case will be referred to another branch for consideration", and it seems that Judge Mojtahed's scientific and practical independence has been challenged. The authors argue that preventing Judge Mojtahed from ruling without contravening the principles of judgment contradicts the independence of the judge, contrary to the law. The perverse implications of this are the isolation of ijtihad in the judicial process and, the excessive presentation of the virtues and dignity of Mojtahed. Therefore, by meditating on the narrative and rational documentation, the legislative approach in the note, as the only way out of the challenge, rejects the issue of referring the matter to the Guardian Council or the Jurisprudential Council or the Fatwa of the Supreme Leader, as a competent reference for recognizing conformity or noncompliance. Laws are recommended by law.

From challenging and controversial issues, the issue is the age of people in the enjoyment of social and political rights, as well as criminal liability, with no single procedure in this regard. In terms of maturity and the age of criminal responsibility, the two terms are different, yet related. In Article 91 Alongside growth, the courage of intellectuals under the age of 18 has been voiced in the context of the criminal responsibility of adolescents, which implies a dramatic development in juvenile criminal responsibility, which in terms of recognition of the growth and perfection of criminals under the age of 18 years of jurisprudential basis has it. Therefore, the present research seeks to answer the question of how well the growth and perfection are and what is the basis? Which initially explains the concept of growth and perfection, and it is proved that growth is not exclusively dedicated to a specific civilian concept and can be generalized to non-financial issues, including criminal affairs, since through the former or at least the unity of the criterion and the spatial , Growth is also conditional on criminal responsibility, and age is 18 years old for growth, and the growth of a person must be established for criminal responsibility; for this claim, while explaining the meanings, the narrations and precedence analogy are cited in the issue of growth and perfection.

A kind of contractual damages is contractual pure economic loss or death of contractual interests. In the law of vestern countries, regarding to principl full compensation damags and because creating of expectory interst and reliance interst promisee, recovable of pure economic loss is admitted. But inverse, Legislator of IRAn in Waver of 522 Article of civil procedur law is not adimited capability of pur economic loss.Regarding to term of this article can said that death of contractual interests is inclusive this rule and is not recovable; But because ressitance of this rule to international commercial custem and usage, in thia article is try similar to usage in the vestern countries and international codes is explain necessity of revocable and display councurrent interpretation of 522 Article of civil procedur law; Because According to opinion of author, this kind of damages is related to violated undertaker and is related to her act and therefor ther are elementa of responsibility in the cases and is recovable.

The cadastre, which is referred to in the Iranian legal system as "Hadnagar", is a type of registration mapping that has legal value and determines the status of the country's property. Cadastre is a new concept in property registration, ie electronic property registration. Despite the importance and position of this institution in the new registration law, in the legal system of Iran and Australia, some issues related to it, especially in the country, have been neglected. Although Iran's registration system is a coherent system and has the ability to create legal security, it is not compatible with the needs and interests of society, so it needs reforms to improve its efficiency so that in addition to securing the interests of owners, block possible abuses and To many disagreements about the registration regulations that result from not paying attention to the type of registration system in Iran. From a legal point of view, the cadastre seeks to identify four basic characteristics regarding real estate. These characteristics are: the owner of the property, the method and means of transferring ownership of the property, the geographical location and the four boundaries of the property based on the main and sub-registration numbers and the quantity and size of the property. By identifying these cases and recording them in single-page cadastral documents, it will be a great help to validate official documents and guarantee and facilitate transactions. Establishment of cadastral system in the country is very important today because this system plays a role in the position and validity of official documents and on the other hand provides security of tenure and ownership of real estate, facilitates investment and guarantee of real estate transactions, effective and transparent property valuation Guarantees and ultimately promotes the consolidation of official property and transactions and the elimination of statutory and ordinary transactions. The present study uses a descriptive-analytical approach to the cadastral position in the accreditation of official documents and the guarantee and facilitation of real estateion of transactions, and as a result causes the property to enter the economic cycle and shows that the use of objective property registration system in combination with cadastre In the Iran-Australia registration system, which has been done in a multidimensional way, it has been possible to achieve this goal despite some shortcomings.

In addition to the famous and recommended jurisprudential rules in the books of jurists, There are some general themes in verses, hadiths and jurisprudential fatwas that can be identified with the new jurisprudential rules. Including cases, There is a jurisprudential rule called "Anything that hurts parents is forbidden" that With this phrase does not found in any of the verses or hadiths. Considering the necessity of organizing family relationships, especially the child-parent relationship, proof of such a rule is of particular importance. In this study, which was conducted through a descriptive-analytical method, while examining the ruling of parental consent from the viewpoint of jurists and its semantic scope, the rationale behind this rule, which implies that any harassment of parents has been committed, has been investigated and after adaptation of rule With examples and expression of Exceptions And its conflict with other rules, It was concluded that This rule can be used as a general formula in the process of inference of jurisprudence.

scholars and jurists, mainly by challenging between facts and credentials. They have disputed the jurisprudents' rational argumentations as put forward in their works.   By induction in this regard, we achieve three important views: general prohibition of the use of rational rules in jurisprudential inference, non-prohibition of quoting rational rules in jurisprudential citation, permissibility of citing to rational rules, and promising in detail among the rules of reason.   Adopting a basis for this issue depends on the analysis of two minor and major debates; the minor discussion is that whether the Osuli and jurisprudential propositions are factual or credential.  Assuming on its credential nature, it is argued that if the major issue regarding the citation of rational principles in credential discussion is true or not.   In this paper, with the aim of focusing on the position of rational rules in jurisprudential inference, the authors support the rationalist principles and by analyzing the principles and arguments in both minor and major debates have focused on the problem of facts and credentials confusion to prove this assumption that in order to deduce the rules of jurisprudence, based on the real support that religious laws and credentials  have, we can use the rules of real and rational sciences, and in this regard, we will express a new detailed theory and standard to cite the rules of reason in deriving religious rules.

Where a person has caused damage, he or she has a civil liability. According to the waste rule, which is manifested in Article 328 of the Civil Code, the guarantor of the loss has the intention of a definite act, whether it has the intention of the result or not. The question is whether a person who does not intend to act like a baby or a sleeping person or a person who has a vibrating hand and who causes financial or physical harm without the intention of the act is also a guarantor or not. In this article, rejecting the theory of those who believe that just attributing the loss to the cause of the loss is sufficient to guarantee; Physically, he has been exempted from civil liability, but bail, which is a conditional sentence, according to narrations such as "the tail of the Muslim is the religion of the head," if there is a cause, and if there is no cause, it is due to distributive justice and social participation. The treasury is placed.