مجله مطالعات فقه و حقوق اسلامی
پیاپی 26 (بهار 1401)

Contract is one of the means of creating an obligation, and depending on its nature, the subject of the obligation may be the transfer or delivery of the same goods, provision of services, performance or omission of a deed or revocation of rights. By fulfilling the obligation voluntarily, the expected result of the parties is obtained from the conclusion of the contract. Sometimes it happens that after concluding the contract correctly and the contractors commit to the obligations arising from the contract, events occur that make it impossible to fulfill the contractual obligations. It is also clear that the commitment to the impossible affair is an irrational and futile commitment and is legally invalid. As a result, it is reprehensible for contractors to adhere to a contract on the assumption that it is impossible to enforce it. In the statute law, the impossibility and the reason for impossibility of executing the contract and non-fulfillment of the obligations arising from it, should not invoke the obligor and it is outside his authority, otherwise the obligor is still responsible for non-fulfillment of the contract. In jurisprudence, a rule has been stated under the title of "invalidity of the whole contract with the impossibility of fulfillment in content", and it does not matter whether the impossibility of fulfillment of the contract is from one of the parties or from both parties. This rule expresses the concept that if after concluding the contract, it is impossible to fulfill the obligations arising from the contract forever, the execution of the content of the contract and its obligations is not necessary and the transaction is void and there is no difference between contracts and this rule in all contracts. Even licenses will be valid. Iranian law has dealt with this in Articles 227 and 229 of the Civil Code, and there are conditions for fulfilling impossibility for the performance of the contract, without which they cannot rely on this rule. Obviously, assuming the necessary conditions for the fulfillment of the obligation are fulfilled, the parties will be released from fulfilling the obligations.

The analysis of the standpoints about the criteria of rational approbation and disapprobation gives two major criteria which are "general prudence or depravity" and "justice or oppression". Furthermore, the conducts of the wise are formed based on rational approbation and disapprobation. Considering the two major standpoints about the criterion of approbation and disapprobation, the question at hand is: what is the impact of each criterion on the formation of the conducts of the wise? Have Osuli scholars noticed the impressibility of the formation of the conducts of the wise from both of the criteria? Is there any sample of the conducts of the wise impressible from each of the criteria? Research in the sayings of Osuli scholars shows that they have paid attention to the role of rational approbation and disapprobation in the formation of the conducts of the wise and because of this attention, the theory of "the impossibility of the rejection of the conducts of the wise" is proposed. Nevertheless, most of Osuli scholars' attention is directed towards the role of the general prudence or depravity in the formation of the conducts of the wise. But there are many examples of the conducts of the wise that are impressible from rational approbation and disapprobation that is based on justice and oppression. Some of the rules of the penal codes and international human rights customs fall into this category.

Article 59 of the Iranian Constitution mentions the possibility of refer to popular vote through referendum on very important issues. One of the examples of this direct legislation is to enact laws about crimes and punishments; until today, the Iranian legal system has not referred to the referendum in general and to the legislative referendum in criminal matters in particular. It may be argued that given the impact of Islam on some crimes and punishments in Iran, Basically, referring to the opinions of the people on the mentioned issues should have a religious restriction. However, governments like Italy have used legislative referendums about criminal issues; according to Article 75 of the Italian Constitution, a referendum can repeal a parliamentary law, and this rule has been implemented at various times, even in criminal policy. In this study, using a descriptive-analytical method and after examining the principles of referring to public opinion in criminal matters from an Islamic perspective and presenting the features related to the Iranian and Italian systems, we will reach the conclusion that holding a referendum to determine criminal policy in Iran, provided that certain conditions are respected, not only has no legal and religious prohibition, but getting ideas from the Italian procedure can be considered a significant help in achieving the following issues: Improving the quality of governance of the Islamic Republic, increasing the level of mutual trust between people and the rulers and finally adapting the situation of crimes and punishments to the current concerns of society. This does not mean that the state should not monitor the implementation of referendums to avoid non-rational decisions by the people.

Protecting the lives of oneself and others is one of the key religious and moral obligations. Besides, sometimes saving the lives of others will depend on actions resulting in one’s own death. The validity or invalidity of such actions is not agreed by the jurists and they have praised or condemned them respectively under the headings of “sacrifice” or “suicide”. In this regard, the main arguments are related to the association between two verses of the Holy Quran. In this paper, in addition to criticizing the believers’ arguments for the sanctity of sacrificing deeds, foundations of the other opinion have been strengthened; moreover, the principle of the existence of wide-ranging disputes in this issue has provided a basis for considering its validity. In addition to rejecting the doubts concerning the legitimacy of sacrificing actions, the accurate explanation of the abovementioned issue provides the society with an educational and bio-ethical model.

Although civil code and most of the Islamic jurists have accepted the guarantee for a deceased person, there are some controversies in this regard. Some belive that the lagd personolity end by the death but some others believe in the continuation of obligation after death. There are some traditions about this issue. Regarding the controversies about this theory, it is necessary to study that the guarantee made for the deceased person is based on what foundation and analysis. There are also different views about the nature of guarantee for deceased person in the jurisprudence and law and most Islamic jurists and some lawyers believe that it is real guarantee. But some studied it under the titles such as assignment, guarantee conditioned to original payment. Apllxing for wasting property inexehing considrationand novation. On the other hand, and according to some Islamic jurists, the presence of principal debtor is not the necessary condition for the realization of the guarantee; however, some jurists opinon consider it as the basis of the contract and consider the guarantee contract null and void due to the lack of this element in guarantee for deceases person.

Belonging the terminating right for the contract or to the object is one of the basic principles for analyzing issues such as the fall or non-fall of the terminating right for the contract with the loss of the object, the acquisition of the object and its transfer to others. Despite the importance of this problem in drafting legal concepts, its arguments have not been considered by lawyers in details. The fundamental question is that is it the fact that terminating right for the contract disappears with the loss of the object, or contract is the main subject which by losing the object, terminating right for the contract remains and the payment of the object is imposed? This research illustrates that the basic practical principle is that terminating right for the contract related to the object, but the existing jurisprudential rules and the IJTIHAD reasons of the wise approach, indicate that belonging the terminating right for the contract is such that by object losing, the wise still consider the object tax as their own self. On the other hand, the reasons which proving the terminating right for the contract are divided into two categories: arguments without any term and arguments with certain term. Also, the arguments with certain term is divided into two categories, including the arguments contain the terminating right for the contract as a certain term and the arguments contain the main object rejection as the main term. Awareness of the arguments without any term and arguments with certain term related to the terminating right for the contract confirms the belonging the terminating right for the contract. Only in the terminating right for the contract, due to the existence of consensus, existence of the object is introduced as an important subject and terminating right for the contract is belonging to the object.

Either private or juridical persons who grant agency to others is not principal; however, grant as legal, judicial, or contractual representative. The main question is, “what is the effect of extinction of position of the agent, as the grantor of representation, on the contract and relationship between a principal and mediated agent”? The examination shows that the effect is different from the origin of representation. If the grantor is a guardian or testamentary representative, extinction of position will be lead to termination of the agency contract. If the mediated representative grants agency, there will be various presumptions to examine. In the case of an irrevocable agency or position of purchase, the non-termination of the contract is preferable; furthermore, if a representative of a juridical person like the manager of a company, administer of endowment or director of a public organization, extinction of position of agent does not affect on agency contract.

Penal deterrence against e-money laundering has two major disadvantages compared to the prevention deterrence: First, it causes inflation in criminal cases, and inevitably, in the case of any financial predicate crimes or any crime related to property, a money laundering case is also raised, which itself leads to inaccurate investigation and consequently inadequate determination of penalties for the predicate crime and Money laundering. Second, money laundering is a subsidiary of the predicate crime and is dependent on it, and the determination of penal sanctions for money laundering is generally subject to the determination of the criminal obligation in relation to the crime of origin. In contrast, the prevention of e-money laundering (preventive deterrence) does not harm the two; On the contrary, in guaranteeing preventive enforcement, the predicate crimes are not central, and money laundering itself is the focus of measures. Preventive measures, both situational and social, have the ability and flexibility to be used directly in connection with money laundering in cyberspace and eliminate the grounds for the formation of criminal cases in the field of money laundering.The present article, using library and Internet resources and by the method of description and analysis, has come to the conclusion that confronting the phenomenon of electronic money laundering through criminal and judicial measures has an outcome other than inflation, inefficiency of bail guarantees and opportunities for perpetrators. Does not have the legal responsibilities to escape, and the proposal of this article is to replace criminal and judicial measures with preventive measures or security measures that make electronic money laundering impossible by using various electronic methods and measures. Hence, e-money laundering, like other crimes, is not so much based on punitive or utilitarian analyzes of punishment, but is a phenomenon that can be controlled by a priori measures rather than a posteriori measures.

One of the things that causes responsibility under the doctrine of causality, is the rule of causality in the law and jurisprudence. This rule also applies to the crimes and violations found in the building and construction.Sometimes this rule conflicts with other rules in the subject matter.The present study examines the relationship between the rule of causation and its relationship with other rules in construction crimes and with the rules of warning, benevolence, no-harm, waste and deception in a descriptive-analytical method, using library tools with the aim of knowledge raising and awareness. The results of this research are:If effective warning conditions are observed in the construction industry, the warning rule governs the rule of causation, and also if benefactor has done the conditions of benevolence in the subject under discussion, that is, acting according to the laws and regulations, the rule of benevolence takes precedence. In the no-harm rule, the opposite point of which in the causality is the rule of domination, if the action of the owner is in his favor or the repulsion of the loss from himself, the rule of domination prevails, otherwise the no-harm rule is followed by that

According to the civil code, the right of pre-emption does not prohibit the purchaser from performing any proprietary act on the purchased share. However, Article 816 of civil code, states that the exercise of this right void the transactions of the purchaser in respect of the subject of pre-emption. According to the fact that the correctness of the contract from the beginning and its nullity after exercising the pre-emption right is exceptional in our law, it is necessary to determine its interpretation and principle by investigating the juridical literature of the issue in order to answer the essential questions that may rise on this issue. First, what is the condition of the proprietary right of the purchaser before and after the exercise of the pre-emption based on? Is the nullity of the contract in Article 816 of civil code used in its real meaning? If the right of pre-emption on the subject of pre-emption belongs to shafi, why will this right not prevent the purchaser from doing the proprietary act on the subject of sale? There are several points of views from lowers and jurisconsult in this regard such as nullity, voidable, being observed, cancelation and non-opposability. But the bases of these views are not determined. In the present study, after analyzing and criticizing the present views, we concluded that the right of pre-emption on the subject of sale belongs to shafi, but the sale of it by the purchaser is valid. Because the transition of the subject of sale doesn’t defect the right of pre-emption and the exercise of the right of pre-emption will cancel the sale and this rule is more compatible with the two parties of the sale and the real correctness of the contract.

The development of new technologies and the advancement of medical knowledge have led to the implementation of measures in the field of treatment of human diseases that have jurisprudential, legal and moral effects, including the practice of "abortion" in high-risk pregnancies. . The challenging thing is that sometimes after the soul is blown, there is knowledge and certainty that the continuation of the pregnancy endangers the life or physical health of the mother (complete embarrassment), but nevertheless, some jurists consider abortion have became; Therefore, the mother, knowing that it is harmful to continue the pregnancy, will be obliged to protect the fetus; Therefore, in this article, an attempt has been made to review the ruling of medical abortion after the onset of the soul with jurisprudential documents.This research has been done by library and documentary methods as well as descriptive-argumentative and analytical-interpretive writing methods and studies indicate that in high-risk pregnancies, preserving the life or physical health of the mother is necessary and prior to preserving the fetus. . Therefore, just as abortion therapy is permissible in the time before the onset of the soul, it is also permissible and obligatory to perform this type of treatment in the time after the onset of the soul; Therefore, the words of some jurists, who have interpreted it as "forbidden" in this regard, are a place for reflection.

Cybercrime is one of the types of crimes that are born of the technological and modern society. Therefore, there are many ambiguities about the nature and background of such crimes on the one hand and the characteristics of these crimes and their perpetrators on the other hand. Also, the differences between cybercrime and other crimes, prevention and combating cybercrime require special police actions, including preventive measures in this regard can be the effective presence of the police in the field of cyber, public education and providing special training to individuals and He pointed out the organizations that are exposed to cybercrimeDealing with cybercrime and their pursuit by the police requires special expertise and steps, because cybercrime is a disturbing feature that the crime scene is such that officers at the crime scene in addition to the general action at the crime scene must also take visa measures. DoIn this article, while enumerating the police actions in the scene of electronic crimes, we will explain the most important of these crimes with regard to the law of computer crimes.

Unlike governmental banks funded and run by the government, non-governmental banks are a subsidiary of public limited companies, thus always experience a conflict of interest. An obvious example of these conflicts may be found in the decisions of managers transacting on behalf of companies whose family members or relatives are there, or who have a worldly enmity or lawsuit with the other party. This will in turn lead the bank manager not to be neutral in this situation. Referring to Islamic and jurisprudential principles is one of the ways to solve these conflicts. Although there is no explicit order in the holy Sharia law regarding the duties of this group of managers, given the lack of a jurisprudential equivalent, this issue may be solved to a large extent by unitizing similar laws like rejecting the judge, prohibiting testimony about enmity, managers’ duties regarding the property of the wards, the advocacy affairs and the explanation of the appropriate regulations, and with the help as well as continuous legal supervision, especially the religious supervision by the jurisprudential council of the Central Bank that is still active but its decisions are not binding and only are advised. Relying on descriptive-analytical method, the present study explains the issue and compares it with similar cases in jurisprudence

Imami jurisprudence, in order to repel any domination and domination of the enemies of Sharia, has opened the door to jihad, which has both a defensive aspect and an offensive aspect. Defense against the aggressor in the absence of adequate military facilities takes a special form, of which martyrdom operations are obvious examples.Martyrdom operation is a new method that is carried out to resist and confront the enemy of Islam with new deadly tools, with the intention of approaching God, and the perpetrator has a prevailing certainty or suspicion that he himself will be martyred during the operation. Since the martyrdom operation is similar to suicide in form, it has no legitimacy in the minds of some experts.The present study, by analytical and library method and by analyzing jurisprudential books and various researches and examining the jurisprudential arguments and principles of the opponents of martyrdom operations, came to the conclusion that martyrdom actions, while different from suicide, have legitimacy and the reasons given are: Opponents, in terms of differences in intent and purpose, have a thematic exit.