فصلنامه حقوق اسلامی
سال هجدهم شماره 3 (پیاپی 70، پاییز 1400)

With the expansion of cyberspace and crimes committed in this area, the development of specific criminal laws for this area became necessary and the Iranian legislature in 2009 passed the Law on Computer Crimes, two articles of which were indefinitely allocated to theft and fraud. In the mentioned law, committing the crime of cyber theft was not considered a crime, but with the approach of the Islamic Penal Code adopted in 1392 in expanding the scope of committing a crime, it can be examined whether committing the crime of cyber theft is considered a crime? What are its jurisprudential and legal principles and documents? And if it is a crime to start cyber theft, what is the punishment? In this article, while presenting legal views, jurisprudential and legal documents and principles of committing a crime in cyber theft have been studied and pathologically, and this result has been obtained. There is a revision of the subject.

One of the important rules in the Islamic judicial system is the rule of "prohibition of indoctrination of reason", which is known in law as the similar title of "prohibition of procuring reason". It is that the judge teaches one of the parties to the dispute a reason or guides him in how to cite the reason in order to overcome the other party; Like instilling denial to someone who intends to confess or instilling repudiation to someone who intends to swear. Although this rule has been considered in general in legal research, but this article seeks to analyze the principles, exceptions and guarantees of the implementation of this rule in the litigation process, which has been neglected so far. The findings of this study show that it is not permissible to induce evidence to one of the litigants and in addition, it has a guarantee of execution. However, this rule has not remained in force at all, some cases have been excluded from it. Now, the main questions of the research are what are the principles of indoctrination of reason? What are its exceptions? And what is the executive guarantee in Islamic proceedings?

One of the most important legislative criteria in the Islamic government is the necessity of observing the sharia rules. Sometimes factors cause the Shari'a ruling to lose its effectiveness within the legislature, and to fail to achieve its goals. The subject of this article is to examine the role of efficiency and inefficiency of Sharia law in the legislative position; It is assumed that the jurist, as an inference, has observed all the rules of ijtihad and has reached a fatwa; Therefore, we are not talking about the role of efficiency and inefficiency in the inference process.The most important maps of the efficiency and inefficiency of the Shari'a ruling in the legislation are: 1 Determining the standard fatwa in the legislation based on the effectiveness of the Shari'a ruling. 2. Obliging the legislator to remain silent due to the temporary ineffectiveness of the Shari'a ruling; 3. Determining the appropriate fatwa in judging in cases where judges refer to fatwas, and interpreting the law in cases of legal silence of the law.The findings of this article show the exact role of efficiency and inefficiency of sharia law in determining the standard fatwa in legislation; And it determines its role in referring judges to fatwas and interpreting the law in cases of real and legal silence of the law.

The need to acquire new sciences, the establishment and construction of a national economy based on new knowledge and technologies, and finally the need to support thinkers, were highly valued by the constitutionalists. With a deep understanding of the causes of Iran's backwardness, they saw support for what we now call a knowledge-based economy and intellectual property rights, including the necessary steps for the country's development. This article studies the history of Iranian law and analyzes the first regulations adopted by the government, seeks to explain and analyze the intellectual foundations of the matter among intellectuals and clergies, and identifies and briefly analyzes the first Iranian regulations on the protection of intellectual property. Accordingly, by studying the treatises and regulations of the constitutional era, we observe the germs of intellectual property rights in Iran and it is observed that the provisions protecting the cases of intellectual property rights, especially industrial property, were formed very early, which are historically due to grace. It is an honor for Iran and its scholars compared to other similar countries

The nature of the concepts of human rights and citizenship rights and the relationship between them has always been a matter of debate and challenge. The concept of citizenship rights can be divided into two categories of traditional citizenship rights and modern citizenship rights based on existential factors and historical trends. Accordingly, human rights are divided into natural and contractual human rights. Consistencies in the existential factors of each of them led to the formation of a relationship between them. Initially, the relationship between traditional citizenship and human rights was contractual, and then, in line with modern human life, the relationship between modern citizenship and natural human rights emerged. The constitution contains both of these relations in the form of mechanistic and substantive principles, so that the relationship between modern civil rights and natural human rights is enshrined in substantive principles and the relationship between traditional citizenship rights and contract human rights is enshrined in mechanistic principles. The Constitution of the Islamic Republic of Iran adheres to this rule and devotes its essential principles to the concepts of natural human rights and modern citizen rights and the relationship between them, and in the principles of mechanism to the concepts of traditional citizenship and conventional human rights and the relationship between They pointed out.

Examining Plato's views is not only about examining a historical issue but also having a living influence in shaping contemporary thought. This is well known in the context of the feminist movement, so that some radical feminists take Plato's views into consideration in any program that proposes women's liberation. Just as his theory of justice is very important and has long been accepted.Many scholars regard Plato as the first feminist theorist. They regard her as an advocate of women's freedom and human rights and equality with men; some consider her to be the first true feminist philosopher, yet some have questioned whether Plato is a genuine supporter of women's rights. This article, by examining Plato's views on justice, women, their status and duties in society, shows that Plato was not only not a defender of women's rights but also a very difficult position for women if her views were implemented.

Reasonableness is the main principle in contract law,which, according to the characteristics of all kinds of rationality and custom,with the aim of contractual justice and with the guarantee of certain performances,assesses the real and objective conditions of the contract.This principle has wide legal implications in the legal systems of the world and must be observed in the formulation of law,conclusion, execution and interpretation of contracts.In many important international documents including the principles of European contract law and the domestic law of some countries,including the United States,Germany,Italy,it is explicitly recognized as one of the important principles of contract law that protects individuals in contractual relations.The economic efficiency of this principle is such that as a legal standard and tool it helps contractors who are trying to achieve contractual justice in the exercise of their rights,given the available economic and information resources.The effects of this principle are such that the parties,despite the principle of freedom of contract, can not ignore it.In Iranian contract law,Reasonableness as a legal principle has not been considered so far;While its legal grounds and sources,including Article 167,existed;and the use of this principle,especially in the interpretation of the legal rules of the contractual field,can create a fair basis in the qualitative method of legal citation and argument.Some findings indicate the possibility of modification and cancellation of the contract or its terms by appealing to the principle of reasonableness.Ultimately,the goal is to incorporate the principle of reasonableness into the general rules of Iranian contracts to aid the contractual justice process

Principles governing restorative justice and criminal mediation as new principles in restorative criminal justice, officially entered the realm of legislative criminal policy in 2002 with the adoption of the UN Economic and Social Council resolution. One of the criminal cases in the family court is custody, which requires criminal mediation in the custody institution in order to protect the foundation of the family and the parent-child relationship, with emphasis on the said resolution. In this regard, recognizing the principles of criminal mediation and observing them will lead to a significant reduction in the volume of incoming cases to the courts. This research has been written with the aim of policy-making by collecting information in a documentary method in a descriptive-analytical method. Finally, according to the principle of reducing criminal intervention in the field of family, a text can be proposed as a legal provision: Respect for the interests of children in custody is mandatory: the principle of referring family disputes to restorative processes at all stages of criminal proceedings, the principle of admission of guilt, the principle of prohibition of invoking the defendant's statements, the principle of mutual agreement, the principle of validity of agreements, the principle of immediate intervention, "The principle of neutrality and the principle of collective responsibility, the principle of the right to express the opinion of children in custody."

What is intellectual property and what is its function? An Effort to find an appropriate answer to this question form the basis of the present study. In the two legal systems of the US and Iran, the concept and function of intellectual property is different; In the US intellectual property right system, this property is considered, at least in the post-granting stage, to be a response to social changes, and there is an instrumentalist view of that property. In contrast, in the Iranian legal system, both at the stage of granting the right and after it, there is a traditional view to this property and it basically follows the general rules of property. The legislature and the judiciary force, do not consider social changes in legislation and enforcement, while it seems that there is no obstacle to this in Iranian law, both jurisprudentially and legally. The completely traditional and naturalistic view of this property in the Iranian legal system, is not compatible with the special nature of such property. In this article, in an analytical-descriptive way, it has been proven that in Iranian law, the way of looking at the concept and function of intellectual property can be changed by relying on some jurisprudential and legal principles and rules, such as the rule of preserving the system and the free region.

Some jurists use the criterion of fault as the philosophical basis of civil liability. This article, aims to exploring relationship between this criterion and some epistemological, ethical and ontological debates; Or to be more precise, dependence of using this criterion on some main philosophical debates. It has been argued that Fault-based civil liability (1) at least in some of its versions, implies free will; But not in all its versions; That is, it can be impartial to philosophical disputes over free will, (2) depends on the idea of naturalism about human persons and the idea of nature as a deterministic mechanism, (3) In combination with cognitivism, implies realism; But again, not in all its versions, (4) when the fault is considered non-personal, is not consistent with non-realism but it does not depend on taking sides in naïve-critical realism debate and at last (5) considering fault as non-personal, in itself does not implies cognitivism or non-cognitivism, but in the right and justice paradigm, implies cognitivism.