نشریه فقه پزشکی
پیاپی 43 (بهار 1400)

In civil law, based on Imami jurisprudence, particularly the rule of " Divorce is in the hands of the one who marriages " the authority to divorce is entrust ed to the husband as the first rule. However, as marriage is a contract that creates material and legal effects between the couple, consequently, there are a series of duties and rights based on the principle of justice between the couple, so the wife ’s ri ght to divorce can be granted in certain conditions; one of the predictable positions would be cases in which the wife suffers from excessive medical impairments. Now the authors' question is that considering the focus of jurisprudence and law on legal cas es under the rule of "no hardship" (La Haraj), are there any emerging medical predicaments based on which the right to divorce can be delegated to the wife?

This research has been written by a descriptive - analytical method and it has been tried to study some emerging examples of painful therapeutic incidences which grant the wife’s right to divorce according to the focus of jurisprudence and law on traditional examples under the rule of "no hardship".

Although in the early l egislative system or jurisprudential writings, the primary focus on granting the wife’s right to divorce was narrowed to a series of classic examples, by analyzing the original jurisprudential sources and isolating the adequate causes, it was found that in some cases in which the wife suffers from physical, sexual or Spiritual difficulties in the family, based on the criteria of jurisprudence and law, mainly based on the application of the rule of hardness and embarrassment , acquiescing the wife’s right to divorce is considered permissible and inevitable .

Infectious and viral diseases sometimes progress in society so much that special approaches such as general vaccination are considered to control them; because the vaccine, in addition to its preventive and causal properties in promoting health and community development, has a rapid effectiveness on the protection of human life. One of the characteristics of the vaccine used in national immunization programs is its safty. But sometimes, in addition to side effects, they have severe reactions, even with a very low prevalence. This article examines the harms of COVID 19 vaccine injection and proves civil liability in this feild on a jurisprudential basis.

The present descriptive and analytical study examines the conditions for the realization of harms due to the COVID 19 vaccine and the civil liability in this field and evaluates the civil liability against the harms caused by the injection of this vaccine based on library sources.

According to the theory of respect, which has the support of Qur'an and Hadith and emphasizes the sanctity of the health of individuals and its importance, as well as the impermissibility of violating the others rights, the right to health should not be ignored. So the warranty against losses due to COVID-19 vaccine has been proven and according to the observations and the samples indicating the damage caused by vaccine injection, in addition to accurate subject matter, as the case may be, vaccine discoverer, vaccine manufacturer, the government as its importer, and any person or organization that has caused the vaccine program to fail and caused harm at any stage, is recognized as responsible and must incur the loss himself or with the help of insurance through Arsh or Diyat.

Foolishness before being a jurisprudential or legal subject, is a mental state which is conceptually recognized in the psychological studies. Although transactional growth and how to identify it has been discussed in detail in jurisprudential sources with scales, but it is necessary to present them to the empirical scientific findings and re-evaluate them. The present study has been done with a basic look at the nature of the subject by comparing the criteria in the two fields of jurisprudence and psychology.

The present descriptive-analytical study is based on interdisciplinary studies and its data has been collected by library method and in addition to expressing the legal and jurisprudential views and evaluating them in the definition of foolishness, also examines the psychometric mechanisms in this field.

This study, while distinguishing cognitive intelligence from emotional intelligence, offers the idea that the foolishness as a psychological phenomenon can be identified with the help of measuring signs of emotional intelligence. This idea is compatible with some proposed jurisprudential scales. Lack of intellect, lack of subsistence intellect, irrational behavior and lack of physical maturity are the four criteria in jurisprudence to introduce the foolishness. Although in psychological researches, this phenomenon has not been discussed with this title, but it has been dealt with other concepts such as intelligence, growth, mental retardation, behavioral intelligence, cognitive and emotional intelligence. These titles, as similarities between the jurisprudenial and psychological perspectives, have provided the basis for a comparative study of the discussion, but it should be said that the above jurisprudential criteria are in fact the initial signs and symptoms of foolishness and without psychological tests in emotional intelligence, the growth cannot be accurately identified.

Jaefe is a title of an injury for which one - third of a full blood money has been assigned. In this crim e the criminal drags a dagger on the back of the victim, wounds his/her ear, injures his/her eyes, tears his/her lips and at last leads the dagger into his/her heart and penetrates it into the depth of his/her chest. Assuming that all mentioned crimes occu r at once and with a single strike in a few seconds, the legislator in article 547 of the Islamic Penal Code has prescribed the blood money as follows: "whenever a deep injury like Jaefe is occurred at once, only the blood money for same deep injury will b e paid". The present study has been conducted to investigate the degree of compliance of the mentioned article with the relevant jurisprudential principles.

This study is theoretical and based on a descriptive - analytical method by co llecting information in a library manner that tries to correct article 547 of IPC after examining the jurisprudential and legal sources related to the blood money of crimes and their interference and non - interference.

Although in the issue of int erference of blood money of Jaefe with non - Jaefe, in case of committing multiple crimes with a single strike, the legislator has considered the interference of blood money and condemned the victim to pay deep blood money. But according to jurisprudential p rinciples and also by citing materials of the penal code, contrary to the legislator's view, the theory of multiple blood money is preferred as long as the victim is alive.

Providing the patients’ needed organs through the organs removal and transplantation of sentenced to death has long faced serious moral and legal challenges. Approval of Article 47 of the Criminal Procedure Code in 2009 in which organs removal from sentenced to death has been allowed, provoked many objections and agreements. Some jurists have accepted it for various reasons under certain conditions. One of the most important of these conditions is the donner’s will or consent. However, other views such as permission with the sentenced parents’ consent and absolute permission and permission with the ruler’s authority have also been raised, which has caused problems. This study aims to assessing the jurisprudential feasibility of organs removal and transplantation from sentenced to death.

This article collects jurisprudential opinions and fatwas in a library manner and after stating the history of organ removal, critically examines the jurisprudential reasons of Pros and cons of organ removal from sentenced to death and also Article 47 of the Criminal Procedure Code and finally expresses the accepted view.

Analyzing the reasons of Pros and cons of organ removal from sentenced to death, it emerged that opponents of organ removal have argued for reasons such as conflict with dignity and human rights, the sanctity of mutilation and the obligation to bury corpses. But these reasons can be rejected by relying on two principles: the important and more important conflict and the rule of urgency. Although those who believe in permitting organs removal have set conditions, among them permission with the deceased's will and sentenced parents’ consent - in the absence of a will - are preferred due to compliance with human property rights and the reign of the deceased’s parents..

The phenomenon of human genetic biotechnolo gy, which is done with the aim of repelling human evil, building a desirable society, and achieving important advances in human knowledge, is not prohibited in the basic jurisprudential propositions. But due to the tension of this human knowledge with huma n ethics and manners, its scope is not very clear and no integrated research has been conducted. Therefore, the question of the scope of the license to use this human knowledge needs to be explored until obtaining a proper answer. The present study aims to identify and study the permissible scope of human genome engineering.

The present article has been written in a descriptive - analytical method using library data, both real and virtual. In this way, first the views on the acceptance and non - acceptance of genetic engineering, as one of the emerging issues and secondary topics of dynamic Islamic jurisprudence are Planned and then analytically the possibility of accepting the view of doing it in the light of jurisprudential and rational arguments is reviewed and the scope of acceptance’s license of this knowledge is assessed based on the mentioned arguments.

Jurists and religious thinkers do not have the same approach to the phenomenon of human genetic biotechnology. But from the analysis of their documents in the framework of jurisprudential and rational arguments, it seems that the reasons for the followers of this human knowledge are more solid. Provided that in addition to not approaching the jurisprudential and rational bo undaries of loss, damage, reduction, etc., it occurs only in the sphere of productivity and conquest of the phenomena of existence and it is a role - playing tool for the creation to create the social welfare and comfort of human life and the liberation of d ivine creatures from the bottlenecks in the evolutionary path.

The phenomenon of medical malpractice, before being a medical subject, is a state that its conceptual identification and understanding is in the field of jurisprudential and legal studies. The present study has been developed by criticizing the physician's responsibility if the patient refers to his previous permission with the aim of changing the criteria and differentiating the physician's criminal and civil liability. Although the physician's liability has been dealt with in detail in jurisprudential sources, often with criminal scales, his liability or non-liability in case of patient referral from his former permission has remained silent.

The researcher has used a descriptive-analytical method to strengthen the physicians’ legal structure with a new depth in the second paragraph of Article 308 of the Civil Code with the focus on "pseudo-usurpation" or "judicial usurpation" and intends to explain not to refuse treatment by the doctor if the patient refers to his prior permission by reasoning human ownership on its members, proving iodine in seizure (treatment) of other property (patient’s body) and replacing civil liability based on compensation instead of criminal liability.

The study shows that physicians have invoked the reasons for preventing self-harm and the prohibition of induction of death, the rule of medicine and the moral responsibility of the physician for not referring the patient after the initial permission; On the other hand, patients by arguing for self-domination, corruption of permission in case of patient referral, believe in physician's positional responsibility. To resolve disputes between the patient and the physician if the patient refers to his prior permission, the legislature should choose one of two methods either extend the non-recourse of the necessary contract to an agreement between the physician and the patient, or make the government responsible for the physician's actions, assuming the patient returns to his prior permission, by arguing for the rule of necessity, fostering a compassionate and responsible medical community, rescuing the person at risk of death, and the rule “whoever benefits from something he is responsible for the damage”, of course, the second method is more efficient.

Hypnosis is a multidimensional reality whose clinical psychological dimension, namely hypnotherapy and hypnoanalysis, has received more attention and the mind control and deprivation of the subject has been neglected and even denied. The introduction of Islamic jurisprudence and law in this field and the study of the nature of hypnosis and its effect in formation of criminal acts and how to punish such acts is an essential need. Accordingly, the present study has been written with the aim of analyzing the legal jurisprudential dimensions of the role of hypnosis or in other words, hypnotic trance in committing criminal acts and how to punish them in such crimes.

This descriptive-analytical resrarch uses the library method and fishing tools and tries to analyze the nature of hypnosis and its effect in formation of criminal acts and how to punish them, as well as some important examples of hypnotic crimes such as theft, murder and rape through hypnosis.

The findings suggest that degrees four or higher in hypnotic trance in which unrealistic indoctrination is possible, if they have a non-therapeutic (criminal) function, correspond to the components of magic. The three major types of hypnotic crimes are hypnotic murder, hypnotic rape, and stealing people's property through hypnosis. In all these cases, if the subject is involuntary, the crime will not be documented to him and the hypnotist will be responsible and punished, but if the subject presents himself to the hypnotist with the intention of committing the crime in a trance state, he will be criminally liable and punished. If the subject is the victim or the victim of a hypnotic crime, the hypnotist is considered the perpetrator.

Limitation of medical resources is one of the factors causing patients’ conflict of interests which is used from the prioritization system to solve it. Scientists have explained the concept and characteristics of "antagonism" and discussed the conflict between the mother’s life and the fetus’ life as one of its examples. However, so far no research has been done on the principle of antagonism to resolve the patients’ conflict of interest in the use of medical resources. Therefore, we intend to examine the capacity of jurisprudence to resolve this conflict.

The present research has been done by descriptive-analytical method with reference to library sources. First, the two concepts of "allocation of medical resources" and "patients’ conflict of interests and then the concept of "antagonism" and strategies to get out of this situation are explained based on the sources of the principles of jurisprudence.

The strategies have been presented in the science of principles to solve the problem of "antagonism" in religious rules and determination of the obliged person’s practical situation in the face of two tasks that he is unable to perform at the same time. Because the ways out of antagonism are rational and can be generalized to similar cases. If therapists despite their religious duty are unable to allocate these resources to several patients due to the limited medical resources, they should choose one. The criterion for this preference is the "importance" of one patient's treatment over others. This importance is measured by characteristics such as the priority of public interests over individual interests, the legislator's concern for the preference of an individual and justice.

Muslim jurists disagree on accepting labor pain as an illness that has jurisprudential effects. In addition to the principle of accepting labor pain as an illness, the influence of women's financial possessions at the time of labor pain is a matter for consideration. Therefore, two jurisprudential issues can be raised: one is whether Talgh is an illness in Imamiya and Sunni jurisprudence, and the second is if Talgh like other illnesses is the source of the order of financial effects?

This article uses a descriptive-analytical method to collect and review the opinions and fatwas of Imamiya and Sunni jurists regarding labor pain and its effects on financial possessions.

There are three theories about female possessions during pregnancy; well-known Imami, Hanafi, Shafi'i and Hanbali jurists consider the allowance of the woman’s possessions during labor to be limited to one third. Some jurists believe that she is allowed to seize the original property. Others calculate prenatal and postnatal possessions from the original property and possessions at the time of labor pain from the one-third. Since the diagnosis of terminal illness is customary, the opinion of medical experts and maternal mortality rates during pregnancy and labor pain is more accurate. Therefore, if the results of these two justify the mothers’ fear of death, the woman's possessions during this period will be limited to one third.