نشریه مبانی فقهی حقوق اسلامی
سال چهاردهم شماره 1 (پیاپی 27، بهار و تابستان 1400)

Hearsay evidence, including alternatives to evidence of substantiation and and from the background of legal testimony, which the provisions of 1320 of the Civil Code and 231 of the Civil Procedure Law are subject to acceptance. In the legal system of Iran, following the jurisprudence and signification of the words of the jurists, the following arguments were fixed but due to the plurality of expression in this field, it is essential to explain and respond to these issues. The authenticity of in Shi''''a and Sunni jurisprudence also indicates its development. In Sunni jurisprudence, the development of hearsay evidence is martyred. In Shiite and Sunni jurisprudence, the only difference is the acceptance of the hearsay evidence, the precaution and attention to the religious provisions that it is not acceptable , Which is mentioned in Sunni jurisprudence And only in al-Maliki''''s jurisprudence is the authenticity of hearsay evidence in your everyday affairs. Hence, the development of more than a tradition for hearsay evidence which is not accepted in Islamic law.Also in the context of the restricted of Hearsay evidence, the criterion in Sunni jurisprudence is the torment of presence But in Shi''''a jurisprudence it is a hardship to testify. The specific approach of this study is to examine the proper criteria for the hearsay evidence and to circumvent legal liability in accepting hearsay evidence as one of the alternative evidence of substantiation.

Inflation or continuum and general raise of prices, is depended on different reasons and factors. Sometimes incomes and spending of government are imbalanced and government is forced to commit inflation policies and realizing money in order to protect against the side effects of borrowing from Central Bank, and consequently raise to devaluation of national money. In this regard, from juridical viewpoint it is possible to survey that in such circumstances, is there any way to put the responsibility of compensating of money devaluation and losses of citizens on government or not. It seems that if the pills of civil responsibility are complete, so, appropriate is ready for civil responsibility of government. Because, based on no-losses-rule, harm defeat, causation rule, ownership right and the necessity of compensating lost interests assuming interest conflict, it is possible to put the responsibility for compensating the losses of citizens on government. In other hand, from Jurisprudential view point, there is no constraint for this sentence and therefore, government is force to handle this responsibility, anyway.

The analogy of the transmission of a sentence from the main to the secondary is due to the existence of a similar cause between them. The prevailing belief is that Imami jurists have not accepted analogy and this negative approach has been going on for a long time. Imami jurists have been skeptical about the application of analogy in all religious matters, but in jurisprudential and legal rulings, they have used the analogy of Mansoos al-Ala and the analogy of priority. And they have used it under other titles, such as denouncing the manats, but they have not accepted the analogy attributed to God. Shafi'i jurists, in the absence of a jurisprudential ruling in the Qur'an, Sunnah or consensus, have considered analogy as a reason for inferring and issuing jurisprudential rulings. And they consider it a religious necessity for issuing fatwas and legislation and one of the ways of recognizing and expressing rulings.In this research, the authority of analogy and the application of analogy attributed to Imamiyya and Shafi'i have been studied. Shafi'i because of the perception of the causes of the rulings in the rulings of jurisprudence and law with regard to their humanity, Also due to the impossibility of accessing the real reasons of all the verdicts, And the emergence of many new issues, the use of analogy is allowed. The Imams have accepted the issuance of jurisprudential rulings based on the revision of manat and rational implications. Both of these are functions of the intellect and therefore are very similar to the analogous analogy of Shafi'i. And in practice, there are many deductive rulings in the books of Imami jurisprudence which have been issued based on the analogy of the deduced analogy.

The issue of compensation is one of the most important legal issues. In this research, the role and authority of the judge in civil liability lawsuits from the point of view of jurisprudence and subject law and its comparison with French law have been carried out in this research using analytical-descriptive method. It was concluded that judicial systems are divided into different legal systems. The role of the court is different in each legal system. In this way, in the system of accusatory proceedings, the civil lawsuit belongs to the litigants and the judge is only a passive member who cannot play a role other than issuing a verdict based on the reasons presented by the parties. This is while in the investigative judicial system, the role of the judge is active in proving the claim, in civil liability claims, the role of the judge is more active and significant than the involved claims, and this activeness in ascertaining the elements of civil liability and interpreting it, choosing the method of compensation, The basic description of responsibility, mitigation, aggravation and adjustment of damage, change of sentence, etc. appears, which can sometimes and seemingly go beyond neutrality and take on the aspect of protection (of the victim). According to the amendment of the rule prohibiting the acquisition of evidence, the authority of the judge in changing the sentence and damages can be considered limited, and the role of judicial experts in determining the actual damages is undeniable.

What is always referred to as puberty as the beginning of the responsibilities and limitations of the obligated human being is the reaching of a girl and a boy at a certain age; But regardless of its religious basis, puberty is a natural phenomenon with the actualization of sexual talent and reproductive powers; The same criterion and rule is specified in verse 6 of Surah An-Nisa '. However, in narrations and news, various signs have been set for the interpretation of this stage of sexual ability and several ages have been set for it. Therefore, the lack of unity of basis and criterion in determining the criterion of maturity has caused the plurality of opinions of jurists on this issue; Most of the Imami jurists, citing some hadiths, which of course do not have sufficient and reliable meaning, have placed boys at the age of 15 and girls at the age of nine. The findings of this study show that in the field of understanding the narrations of puberty, what has not been given much attention is the audience at the time of issuing narrations and hadiths. While the Holy Prophet (PBUH) and the infallible Imams (AS) had paid such attention in their tradition and speech and in expressing the rulings, they considered the characteristics of the addressee of the word. Therefore, it can be seen that sexual maturity as the beginning of religious duties is not related to the age specified in the words of the jurists and is different in people affected by climatic conditions and climatic diversity.

AbstractThere have been many researches about usury, but none of them mentioned the damage that this crime causes to the economy. Therefore, in this research, we are trying to prove the necessity of criminalizing usury as an economic crime. In this article, using the descriptive-analytical research method, we come to the conclusion that usury can cause the growth of the inflation rate and between money markets and goods markets and markets. A separatist economy There have been many researches about usury, but none of them mentioned the damage that this crime causes to the economy. Therefore, in this research, we are trying to prove the necessity of criminalizing usury as an economic crime. In this article, using the descriptive-analytical research method, we come to the conclusion that usury can cause the growth of the inflation rate and between money markets and goods markets and markets. A separatist economy that disrupts the investment and production system, which is one of the clear examples of the crime of disrupting the economic system, so it is necessary to recognize it as an economic crime.that disrupts the investment and production system, which is one of the clear examples of the crime of disrupting the economic system, so it is necessary to recognize it as an economic crime.Key words: Islamic contracts, usury, economic crime

Studies and observations show that children have always been the most threatened, harmed and abused. Innocent children who are considered the capital of human society are subjected to violence, physical abuse and, unfortunately, the corporal punishment of corporal punishment and violence against children. It is documented as criteria and arguments that show the depth and breadth of this problem. In the international system, any violence and harm to children is prohibited under any title, and it seems that getting rid of the problem of corporal punishment of children in our legal system is based only on finding a proper view of Imami jurisprudence and derived from religious teachings. In this perspective, dignity The child and his / her best interests must be properly observed and any action contrary to the dignity and interests of the child is prohibited. It represents a complete and comprehensive legal and educational system for children, the findings of this study were obtained. The method of data collection is library and in processing data and information collected is a descriptive-analytical method.

Insight and expression of the framework in the Islamic penal system is the formation of the healthy life based on creating a healthy living environment and preventing the occurrence of crime, so that human beings, in order to become familiar with their individual and social duties: refrain from any deviation. There is a worldly punishment (hudud and punishments). In this article, the role of time end place in the punishments is more noticeable, so that in the main criterion of the punishments, which is less than the hudud. Depending on the requirements, deviation from it can be seen in some cases for special reasons. Time and place play a decisive role in enforcing the hudud, so in the event of a conflict of interest in enforcing the hudud or, more importantly, the limit may be temporarily shut down or enforced to another degree. It is a place in enforcing the hudud and approach of the Islamic penal code in suspending and changing it, findings show that the conversion of prescribed and non-prescribed religious punishments with other conventional punishments by reformist methods is possible in terms of rules and structures within the religion and from a perspective appropriate to the requirements of the time is a historical necessity.

Asylum in another country has a history for various reasons. Although our country, Iran, has a smaller population of asylum seekers than other Western countries, it still receives a large number of foreign nationals. This analytical-descriptive study seeks to examine the practice of the Islamic Republic of Iran in dealing with refugees, while comparing with the Western practice of this action. It was concluded that the Western practice of accepting refugees through unconventional sexual behavior is incompatible with the principles of health security as well as the responsibility of protecting the family. Acceptance due to political problems is considered a violation of the principle of neutrality, which is specified in the custom of international law. Admission through conversion has largely become a means of accepting asylum without the conditions of entitlement. However, the Islamic Republic of Iran, based on the principles of Velayat-e-Faqih, has accepted refugees from other countries in the framework of supporting the oppressed, and at the same time has always observed the principle of neutrality. International law sources oblige countries to prohibit arbitrary deprivation of citizenship, so there is no specific requirement for countries to grant citizenship, and the Islamic Republic of Iran cannot be criticized for not granting citizenship to Afghan citizens, due to the country's economic problems. Is to distribute job opportunities with the necessary measures, in which case the restrictions imposed are in line with international standards.

AbstractThe realm of the ruling interference in the implementation of religious rulingsIn the realm of devotional rulings at first it seems that their implementation is merely a personal matter; Because the consequence of doing or not doing it depends on the person's actions. But with all-round thinking, it becomes clear that in the implementation of some of the rules of worship, the Islamic ruler must intervene or due to an incident, and the intention of the obligated person is not sufficient, but in addition to the intention of the necessary ruler to intervene with his intervention. It can be said that Friday prayers and elementary jihad are considered in this category. This article, by reflecting on the jurisprudential opinions, separates the rules of worship from the perspective of the ruling, and concludes that: although in the implementation of the rules of worship, the principle of personality and intention is required, but in some cases, the implementation of this Judgments will not be possible or sufficient without the intervention of the ruler in essence or in breadth; However, the intention of closeness of the obligee is also raised, and vice versa, it is possible that the worship - the main element of which is the intention of closeness - is performed by the ruler, even if the performer has no intention of closeness.

Getting income through performing obligatory religious duty (Farḍ or farīḍah) is one of the issues that has been taken into consideration by jurists for a long time and about which different views have been expressed. Although the main focus was on the lease contract, it does not seem to be specific to it, and it can be taken into account in other barter contracts. In any case, how to make clear the relationship between what is obligatory, which is a religious duty (Farḍ), and earning, as an economic action, is a serious challenge. Presenting the subject with intensive reference to jurisprudential opinions, this article analyzes the arguments and tries to explain its jurisprudential legitimacy. In this regard, the opinions of jurists who believe in the inherent contradiction between obligation and earning income is concerned critically, and the arguments of those who expand the types of Farḍ is examined. Next, the issue of receiving remuneration for performing the act of worship of a hired is discussed, and finally, the factual and evidential dimensions of the legitimacy of the act of proxy (Niyabah) worship are debated.

The issue of child marriage is one of the most controversial issues in jurisprudential and legal circles. The present article examines the element of expediency in child marriage by descriptive-analytical method, referring to library sources. Most sects of Islamic religions believe that expediency is conditional on the actions of the guardian over the property.Because the ruling on the necessity of the expediency of the guardian's actions towards Molly against himself is governed by the ruling on the permission of all the guardian's possessions in Molly's affairs against himself. Therefore, if the expediency of child marriage is not observed, there are two views; Some believe in the existence of the right of termination for the child at the time of eligibility and some believe in the invalidity of marriage. The theory of invalidity is more correct from the perspective of this research. Also, in order to maintain the envy of the child in this marriage, it is suggested to the legislator to present the certificate of the expert board to determine the existence of expediency in this marriage instead of examining the expediency.

The importance of land and real estate in general, among other property that human beings deal with, has caused this property to be the subject of many conflicts between people in society;.The different legal systems have each tried to provide a solution so that the buyer can be sure of the absence of an adversarial transaction and facilitate access to information related to the ownership of real estate that is necessary for economic policy. This article tries to answer the following questions: Can the sale be made conditional on its registration? Can the transfer of ownership be made subject to sale? Can a transaction that has not been registered by the government be considered unreliable? Can a document of transaction or ownership of immovable property be considered only as proof of ownership? It has been suggested that if the solution to the problem is unique in the current situation in using the official property registration system, the capacity of the Soltanieh rulings at the disposal of the Islamic ruler should be used to legitimize it.

Suicide is contrary to nature and is strictly forbidden in Islam. The main question of the research is the possibility of determining the ta'zir punishment for a person who commits unsuccessful suicide according to the rule of "ta'zir for all forbidden acts". In the law, only the punishment of the deputy for suicide through media and telecommunication tools has been dealt with, and the punishment of imprisonment from 91 days to 1 year or a fine from five million rials to twenty million rials or both punishments is considered for the offender. Considering that it is not criminalized in the Islamic Penal Code and according to Article 1 of the Penal Code and the twenty-twenty-second and thirty-fourth principles of the Constitution, it is possible to determine the punishment for suicide based on the rule of "ta'zir for all forbidden acts". The jurisprudence of the five religions can be determined as an appropriate punishment according to the person and the act performed. The present research has been done in a descriptive-analytical method and has found that individuals are punished with ta'zir punishments or appropriate security and training measures such as; Advice by the judge of the court, warning and warning or obtaining a written commitment sentenced not to repeat the crime, imprisonment, corporal punishment, etc.

Talfiq (integration) is defined as a combination of the different views of religious scholars which is not fully consistent with the exact views of any of them. It is aimed at facilitating religious assignments. Therefore, Talfiq enjoy commonalities with Taysir (facilitation) as a tenet in Islamic tradition and under rules such “removal of constrictions” and the “Yosr rule”. On the other hand, however, Talfiq may take place to relieve the religious obligations of an obligated person or actually lead to such a thing. .Some religious scholars believe that integration over a Fatwa is allowed in case of necessity since it leads to openings as well as removal of constrictions. Others have considered a wider application for Talfiq, arguing that it is allowed not only when necessary, but also when needed. It is evidenced upon Taysir (facilitation) and removal of constriction that could be applied to the relevant obligator. It seems that Taysir and Talfiq overlap each other, because every case of Talfiq is not necessarily considered as Taysir, and every case of Taysir is not necessarily categorized under Talfiq, although all cases of Talfiq ensure Tatsir in practice and especially in contemporary Fatwas.

True repentance is rebirth. The great change in the soul of the repentant person causes him to wisely and unhesitatingly accept responsibility for his mistake and seek to correct the past and prepare for the future. The action of the criminal legislature to limit the influence of the institution of repentance in the partial fall of the government's punitive punishments and the inability of the judiciary to issue a moratorium on prosecution is contrary to the rationality and spirituality hidden in Islamic criminal policy and the judiciary being a judge. The organization of the judicial cycle of the Islamic Republic of Iran on the criminal policy of Islamic punishment requires the reliance of the penitentiary on the criminal response to the act of punishment. Therefore, it is appropriate for the divine institution of repentance in criminal law to be the muscat of punishment for all punitive crimes of the government by all judicial authorities. Avoiding criminalism and paying attention to moral values ​​and social interests in the legislative stage and preventing procrastination and increasing the volume of cases in the executive dimension, are among the goals of the author to take this position.

Sharia punishments were a title that in the past was considered a mystery in law; However, when the recent Islamic Penal Code, under the title of prescribed Sharia punishments, explicitly included it in the text of the law and imposed conditions on it, the nature of the definition and the determination of its instances became doubly important; An important matter that has not been addressed by the legislator and his assistants, nor by the few and limited efforts of the jurists, has reached a definite and consensus conclusion about its examples! This article is another attempt to find examples of this institution, which undertakes a more extensive exploration of the jurisprudential background of this discussion, carefully separates the limits and punishments, examines and categorizes different sayings in the number of limits, and tries to find examples of predestined punishments. Draw out from the opinions of the jurists. Finally, he takes a comparative look at the jurisprudence and the law of punishment and reaches different and astonishing conclusions about the examples of prescribed punishments in the Islamic Penal Code

With the marriage contract, commitments are made between the couple, including the commitment of the wife to the couple in obedience. In the contemporary world, where women, like men, have undertaken many jobs and social tasks and are forced to leave home, it is not possible for them to obey in any way. Encouraging women to work in a well-off society is a challenge that has plagued some families and, in some cases, provided the couples with a misconception. They were bound to disagree with the couple's arguments. This research, organized by the analysis method, aims to answer the question whether the appointment of a couple as the head of the family in Iranian jurisprudence and law will not lead to unconditional domination and authority of some men. The article emphasizes this view since obedience is not considered as a right of couples in the essence of marriage; therefore, a working wife can express her commitment to obedience during the marriage expressly and conclusively. Be transparent and adjust the couple's expectations using the condition of the contract.

Jurisprudential sources and Legal doctrine Call the woman's sexual Intercouse with her husband and the Response to his legitimate wishes,the Specific obedience that is one of the nonfinancial effects of marriage, which in civil law deals with The title of Marital Duties has been explained and the guarantee of its non-enforcement, namely non-compliance with the law, is the non-payment of alimony by the man. The consensus of the jurisprudents and jurists is that this non-financial right is reserved only to the man and he can When he wants to exercise his right to do so unless the woman is unaware of this relationship. Contemporary jurists and jurisprudents, the lawful and inexplicable jurisprudential rules, the provision and maintenance of women's chastity, attention to the nature of sexual instincts as a shared instinct between men and women, attention to individual and social excellence of women and the prevention of corruption in society show that This right can not only be confined to men, but sexual intercourse is one of the common rights and duties of couples and jender difference do not prevent balance in sexual affairs of couples whose rights in matters of the country should be subject to special scrutiny in light of these issues and rational conclusions. Keywords: Special obedience, Sexual rights, Divorce, Marriage

A review of the works of religious scholars shows us their ways of argument to find religious rules. Ibn Edris is one of the jurists who only relies on the facts that are attainable through reasoning such as the book, the tradition, the consensus, and reason. Therefore, he accepts reason as an independent element and as one of the sources where the three other sources are not available. He introduces reason as a way to achieve religious laws and certainty. Although, he sees reason as an independent argument, he does not clarify his perception of reason, the limits, and applications, which widens the borders of reason. Through examining the instances of using reason in his works, we can conclude that reason from his viewpoint even encompasses verbal aspects such as tone and laws of practice. From his viewpoint, reason is attainable directly or sometimes through a statement, both of which are considered as a proof.

Although there was a consensus on the permission of temporary marriage the beginning of Islam, Sunni jurisprudence, believing the prohibition of it by the Qur'an, the Prophet and the emphasis of the second caliph on it, is considered an illegitimate marriage. However, since the issuance of this sanction by the Qur'an and the Holy Prophet is doubtful, but the very issuance of the sanction by the second caliph is certain and agreed upon by the two sects, order to examine the principles of the sanction and contrary to Sunni scholars, expediency is very reliable and the sanctions imposed will not be valid for any time and place. Thus, the theory of absolute boycott of intermittent marriage will be incorrect. Imami jurisprudence, the analysis of this marriage is based on the definite precedent of its ablution, the validity of the sanctity of the sanction, and finally the advice of the Imams to perform it, and thus the removal of doubt in the sanction and the certainty of its immorality. However, contrary to the ruling attributed to Imami jurisprudence, is absolutely absurd, but it does not have this ruling in terms of examining the basics, and according to the requirements of time and place, includes five rules. Thus, terms of analysis and research in basics, and contrary to popular belief, seems that the two parties have a common denominator the absence of absolute sanctions and the absolute absence of this type of marriage. this research, the research method is analytical and descriptive

Protecting individual rights and freedoms is one of the purposes of criminal procedure law. Among the acts that violate individual rights are the rights and freedoms of the accused at the monitored stage. The rights of the accused have been taken into consideration by the legislature to some extent, although they have not been fully addressed and full requirements have not been set for law enforcement and the judiciary, and in general some have been pointed out. The accused was under surveillance; The right of the accused to remain silent, the principle of innocence, the right to know the reasons for arrest, the interrogation of the accused by addressing issues such as the observance of the principle of security in the interrogation of the accused, human dignity, protection of civil rights and fair trial, as well as the right to a lawyer. The right to understand the accused and the right to inform the family were among the cases that were examined in this research from the perspective of jurisprudence and law. Violation of the rights of others, including defendants, is an unforgivable sin, and hard-working judicial officers and judicial colleagues are expected to spare no effort to observe it carefully.