فصلنامه پژوهش های فقه و حقوق اسلامی
سال هجدهم شماره 2 (پیاپی 67، بهار 1401)

The victim's consent and permission to the commission of a crime cannot eliminate the specific characteristics of a criminal act and cannot be considered as a justification for the crime, because it is in conflict with the general principles governing criminal law, and on the other side, the purpose of enactment of laws is the maintenance of law and order as well as the fulfillment of the public interests and rights. Hence, the consent of the victim against the commission of the offense cannot have a legal effect as a reason to approve an action and to prevent the punishment execution. However, in specific cases, the legislature has considered the victim's dissatisfaction as one of the basic elements in the development of crimes, so that the commission of such crimes requires the victim's dissatisfaction with the act committed against him/her. Thus, the victim's consent prevents criminal liability from being proven. In this article, it has been attempted to analyze, evaluate, and criticize the importance and effects of victim satisfaction in criminal responsibility from the perspective of Iranian law and the views of Islamic jurists.

Multiplicity of crimes is one of the aggravated factors for punishment. In the Islamic Penal Code passed in 2013, has intensified the punishment of the person who committed several first to sixth degree crimes that its result is the execution of the most severe punishment from numerous convictions. On the other hand, the legislator did not predict intensification of punishment in seventh- and eighth-degree crimes and predict the rule of summation of punishments in the both degrees. Also, the punishment of accessary in one to two degrees lower than the punishment for the committed crime. If a person assists in two or more fifth- or lower-degrees crimes, his punishment increase from the main perpetrator. So, the purpose of this article is checking the objectives that the punishment of accessary is more severe than the main perpetrator. In this article at first, we investigate the articles about multiplicity of crimes and assistance in crime and different assumptions in the degrees of custodial crimes. Also, we explore the consultative theories in this issue. At the end the result is when check the procedural unity votes and consultative theories that have common criteria with this issue and according to priority analogy, we conclude that the punishment of the crime assistant cannot be more intense than the main perpetrator. Also, the justice and fairness confirm the theory. However, there is legal objection in this context and the only solution is correction of related articles in the Islamic Penal Code.

In the banking system of Iran and within the framework of money and banking law, the law on banking operations without usury; regulations, instructions and directives of the Central Bank, numerous and various transactions between the bank and their customers are concluded. Eqalah has been used effectively as one of the solutions to break the necessity contracts in this system, and the main application of Eqaleh in the banking system is the transfer of ownership of banks' properties. In this regard, each bank, due to the lack of clear regulations, with the withdrawal of taste from the current regulations and laws, at the request of the bank's mortgage or customer, the property is transferred. Due to the fact that no practical research has been done in this area and in the implementation of aqala in the banking system, this article tries to examine the position and function of aqala in Iranian banking system, relying on banking procedures and related laws and regulations and also

Jurisprudential analysis of the unpopular views of Sheikh Sadouq on inheritance Sheikh Sadouq is one of the fourth-century jurists in a period that is related to the absence of the Imam. Almost all jurisprudential fields have opinions contradictory to the famous Imamiyyah jurisprudence. The authors of this paper examined the legal jurisprudence of their subjects on inheritance and showed that Sadouq’s five cases of inheritances are: 1- Inheritance of not having child of child in the presence of a deceased parent. 2- Partnership between grandpa and grandchild in inheriting deceased property. 3- Inheriting the mother of a deceased woman by imagining one-sixth spouse as a share and the rest by return. 4- If the sole heir is his wife, the woman inherits a quarter of the property at the time of Imam's presence and, in absentia, will inherit all. 5- Inheritance freed from liberator. The result of this research is to show that the opinions of the not famous jurisprudents, including Sheikh Saduq, also have valid and reliable narrative support. Therefore, their views appear to be able to stand up to prominent promises and can be effective in Iranian law and may be a factor in changing the inheritance of civil law disputes, which have largely followed prominent pronouncements.

With the change in people's lifestyles in the contemporary world, some of the previous priorities such as marriage and childbearing have faded, but issues such as continuing education and employment have become top priorities, instead. The delay in the proper timing of marriage among young people prevented the couple from having children in the golden opportunities of fertility. Evidence suggests that sometimes this plague of delay has deprived some families of the gift of having children. The use of gamete storage technology in adolescence is a way to achieve childbearing for couples who, for whatever reason, have delayed fertility. The present study seeks to answer the question of what the ruling on this new achievement of genetic science in gamete storage is. The author considers the ruling to be permissible in view of the various benefits of this technology, citing reasons such as the principle of correctness, impropriety, the principle of treatment and the treatment of secondary topics, due to precautionary aspects.

In the present work, we have tried to find out the result of the combination or aggregation of contracts; therefore, by descriptive and analytical methods in jurisprudence, Iranian law, French law, and UNCITRAL legal guide on international mutual trade transactions, we conducted a comparative study and concluded that, connecting different contracts with each other in the form of contract sets, can lead to “merged contracts" or "comprehensive contracts". The terms, conditions and effects of merged contracts are subject to the mutual will of the contracts and the general rules of them, unless it is a specific contract. However, in comprehensive contracts, individual contracts retain their independence, so the disruption in the implementation or validity of one of the subcontracts has no effect on other contracts subject to the comprehensive contract, except by the will of the parties and the determination of the law. We face a shortcoming in the jurisprudence and law of Iran and France regarding the issue, so it is necessary to consider the future changes in the civil code of Iran and France.

According to the Eghtefar rule that has been adopted from jurisprudential texts, the non-conformity of the subsidiary and followed is the essential and undeniable principle. The rational rule describes the relationship between subsidiary (subordinate) and followed (origin). Thus, what is obligatory to be observed in followed, may not be necessary in subsidiary. One of the important and practical implications of the Eghtefar rule is the condonation of usury in contract functions. Hence, although conditions such as similarity and taking delivery and handing over in contract are necessary in followed, they will still be ignored if they are obeyed. Given that, some have believed the contractual penalty clause that is more excessive than the original amount of the contract to be usury and invalid. In this article, based on Eghtefar rule, this issue has been doubted. It is proved that contractual penalty clause is not usury and invalid.

The actualization of the expediencies and the repelling of the depravities from the people’s lives are intended by the canon’s legislation of rules. Therefore, when an issue falls between two depravity extremes and none can be repelled, the common sense rules the repelling of the maximal depravity based on such a maxim as the necessity of repelling the worst as compared to the worse. The present study aims at investigating the documents of the foresaid maxim and its applications in jurisprudence and Iran’s laws using an organized descriptive-analytical method. It will be expressed that the maxim “the necessity of repelling the worst as compared to worse”, though not having been inserted independently, has been clearly stated in the legislators’ books along with such other axioms as no-interference is permitted, the necessity of taking the more important as compared to the important and emergency situation; it is, in practice, one of the jurisprudential axioms most widely applied in the personal, ethical, social, political and legal lives of the people. The obtained results indicated that it is necessary for a judge to verify the internal will and piety of the wrongdoer in regard of repelling the worst as compared to worse in line with preventing any contingent misuse and deception. Also, it is the wrongdoer who should persuade the judge in regard of his or her intention for doing a wrong action. Moreover, the above-mentioned maxim should repel a sort of depravity that is deemed to be the worst and it has to be used as the only way for getting rid of the worst wrongdoing according to the distinction made between the worse and the worst depravity. Thus, the institution and the authority qualified for the implementation of the before-mentioned maxim is the legislator as stipulated in the penal laws like legitimate defense and staying adherent to legality.

Undoubtedly the marriage is one of the paramount events in life of each person and socialogically it can be the foundation of a safe and successful society. Regarding this, it is crystal clear that choosing a proper spouse is really important because a successful marriage can pave the way of maturation, physical and moral development. On the other side choosing improper spouse brings about disillusionment and mental and psychological problems and causes both the person and the society numerous problems. Meantime, the Sharie’s effort to marriage issue and presentation of appropriate criterions is not denyed by anyone. However, what makes writing of this paper very important is the famous fatwa between Emami jurisconsultants that on assumption existing a proper proposal, the girl is obligated to accept this request and if she refuses the proposal, she will commit a sin. Due to the importance of the case and also the probability of being pushed under corruptive acts, this article following a problem-based research through descriptive analytical method referring to jurisprudential legacy cash the jurists’ documentation and with taint to validity of presented cases rejects this view. The writer believes that the result of proofs eventually authorization of granting the suitor that have a religious equality conditions, therefor by observing other preferences like common equality and with contemplate matters like level of education outward enjoyment, nonexistence of any special illness, we can act in this case.

One of the evidence of proving mass in the Iranian criminal system is several. Given the constraints that encounter problems in order to prove crime, providing an alternative to the institution seems vital. One of the alternatives that can play a role as several, is the Emirates of judiciary (scientific evidence), which due to the advancement of science, has a certain position among other evidences. Jurisprudential reasons are also certified by the legitimacy of the judiciary, and it is one of the valid ways in the implementation of justice. According to the notation of the proof of criminal proof, the evidence of proving crime in al-Nas, particularly the crime against the physical integrity of individuals, the advancement of science and techniques and the existence of scientific and accurate methods such as fingerprinting, faculty, biology, science, reference to the expert and likewise, the judicial emirate can be benefited from the proof of crime as an alternative. The present study relies on the sources of jurisprudence, seeks to explain this alternative.