مجله مطالعات فقه و حقوق اسلامی
پیاپی 27 (تابستان 1401)

One of the issues of social jurisprudence is the relationship between unfamiliar men and women which itself includes several issues, including the amount of coverage and its quality with regard to each other. The obligation to cover ornament for women in front of unfamiliar men is one of the small issues in this field. In this article we examined,  the examples of this  sentence. The main challenge of this discussion is that the jurists have provided similar criteria for the ornament to be covered; But there are many differences when it comes to examples. This research has investigated the status of "imitation in subjects" and "task of identifying the subject". Studies show that there are two types of issues sentences: It is either a legislative invention or it is customary or lexical. Recognizing the issue in the first part is the duty of the mujtahid and in the second part it is the duty of the obligee. In this regard, the duty of the imitators in case of the opinion of the jurists and also the duty of the obligated in case of customary anxiety are examined.
This article has been done in a descriptive-analytical method and in a documentary way.

The population and its control is one of the significant topics that has been and still is the attention of  philosopher, governors and politicians. Population issues are one of the most controversial issues, especially among Muslim thinkers, and opponents and supporters have given reasons and documents to prove their claims, and each has tried to prove their claims in some way.Opponents of population control have stated reasons such as verses and narratives that indicate the desirability of marriage and the increase of generations and the need to increase the power, economic prosperity, glory and greatness of Muslims, and those in favor of population control in addition to narrative reasons , imply to  Indication Per Nexum of documents related to educational issues and have mentioned quality improvement;; In addition to the above two views, a third view known as the population proportionality limit theory is based on the belief that under normal conditions the order to increase the generation is recommended and under certain conditions it is permissible, and there is no reason in the Holy Sharia for the necessity or sanctity of population control; The present article, which was written in a descriptive analytical method and using library data, aims to present a fourth point of view as the chosen theory, which is that the Shari'a ruling of population increase is a sufficient obligation, and and according to the above ruling, Any action that is in conflict with the aforementioned ruling will be forbidden.

Throughout history, women have endured many forms of male oppression. The historical oppression of women led to the emergence of a great movement called feminism in support of women's rights from the eighteenth century onwards, which promoted equal rights for men and women. Islam, on the other hand, considers legal equality between men and women to be unjust, despite very physical and psychological differences. Gender justice in the field of criminal law means that the conditions of the offender, the victim, the crime and its effects are examined for each class and case and the appropriate punishment for the conditions of the offender is considered. Based on verses and hadiths, it seems that in order to achieve gender justice, the holy shari'a has considered three important characteristics of women, namely centrality in the family, the need to observe hijab and physical and mental gentleness in determining the type and method of punishment That has brought a system of massive discounts for women in criminal law. Naturally, it is conceivable to observe the interests of the offender and his family in the punishment of individual crimes, because considering social interests takes precedence over individual and family interests. In this article, after explaining and separating individual and social crimes, by considering and systematizing the fatwas of jurists based on the prescribed interests, the Islamic protection system for delinquent women in the field of individual crimes has been examined in the form of a jurisprudential rule. The establishment of this rule can be effective in cases of silence of the legislature, especially penalties and due process.

Today, one of the most important issues in banks is the right of the winners of the lottery, about which there are two promises among jurists: the adequacy and inadequacy of the lottery in the necessity of the right of possession. The famous saying in this matter seeks to prove and confirm that there is an incomplete lottery and discovery and revelation. Bank lottery is from instence of ownership right or a rule that states, someone is owner of something (قاعده ملک ان یملک) and according to this rule, lottery doesn't cause a person be owner of something and it needs the other factors. The result of the conflict will be the time of ownership and consequently the ownership of benefits and appearance and added value. This research has studied explanation of lot and its kinds and then winner situation and theory of the something that belongs to someone (ملک ان یملک) .It seems efficiency of lottery obtained just as a determination and and occasion that ownership of winner and it's legal effects after delivering reward and formal transition of actualized ownership.

Temporary marriage is one of the specific contracts of Shiite jurisprudence, which in some rulings differs from permanent marriage, including the issue of inheritance of couples. Accordingly, the main question that the present study tries to give a descriptive-analytical answer to is, "Do couples inherit from each other in a temporary marriage?". According to research, while there is no difference among Imami jurists regarding the inheritance of couples from each other, there is disagreement about the inheritance of couples from each other in temporary marriage, and some believe in the absolute permission of inheritance and in contrast to another group, it is believed that the nature of temporary marriage is not appropriate for inheritance. In the meantime, a third group of jurists has presented a detailed theory and, by considering the principle of inheritance or non-inheritance, has added to the existing differences regarding the ruling of the mentioned subject. In the present study, while explaining the opinion of Imami jurists and analyzing the available evidence, the well-known view that there is a "principle of non-inheritance unless the condition of inheritance" has been strengthened.

New approaches by the legislator can be seen in the regulations on the limits of the Islamic Penal Code adopted in 2013. It seems that eliminating the legislative gaps in the previous regulations is one of these approaches. Therefore, there are less ambiguities in issues such as adultery while intoxicated and sleeping, the amount of Ta'zir (indefinite punishment) in case of abolition of definite punishments and also the stipulation of crimes related to Moharebeh (Armed uprising( and also specify the criminalizations of Moharebeh and Ghavadi (Panderism)crimes in the Islamic Penal Code approved in 2013.Generalization of similar rules in matters such as the application of the judge's knowledge, the effect of repentance on the abolition of Had (definite) crimes, the effect of denial after confession, and also the repetition of Had (definite) crimes, along with the elimination of unnecessary regulations, such as the removal of the hidden clause from the definition of theft, the removal of the general conditions of criminal liability from the conditions of Had theft is also among the legislator's actions in the 2013 Islamic Penal Code. Explaining prudent approaches in the new penal code does not mean that there are no formal or substantive shortcomings in the mentioned regulations. There are some legislative shortcomings in the penal policy governing the Hodod crimes (with definite punishments), which the authors have tried to provide with corrective proposals to address them. Therefore, the need to develop adultery in the sentence of rape to deceive adult women, along with the need to change the legislator's approach in full support of the principle of legality of crimes and punishments is among the suggestions of the articleauthors have tried to provide corrective suggestions to address these issues.The need to develop adultery into rape by deceiving adult women, the need to criminalize Ta'zir (indefinite punishment) adultery, and also, full support for the principle of legality of crimes and punishments are among the suggestions of the article.

In punishments, "Ta’zirat” is of special importance and several rules have been established for it. The decision-making authority in understanding its quantity and quality and the fact that who is responsible for it; is discussed under the rule of “Punishment is according to what the ruler sees". On the other hand, the realm of ta’zirat and what it includes is called "Punishing for every forbidden action", but the missing link in ta’zirat is how it is in terms of circumstances, time and places. This article deals with it from a jurisprudential and legal perspective. The provisions of the rule of "The punishment of each person is based on what is related to him/her” imply that in the present age, according to the requirements of time and place, the state of individuals and societies should be considered in the manner of Punishing. Nowadays, according to the rule of “The punishment of each person is based on what is related to him/her", cases such as deprivation of government jobs, deprivation of the license to practice law, judging, medicine, ban on attending sports venues, ban on teaching, conditional students, ban on photography and etc. are the cases of “Ta’zirat”. Examining this rule, we came to the conclusion that the punishment for each violation is according to the requirements of the job and profession and its deterrent aspect and the creation of immunity for society. The provisions of the rule of “The punishment of each person is based on what is related to him/her “indicate this conclusion. Among the documents of this rule, we can mention the non-monopoly of ta'zir in whipping, the role of time and place and the interests of society, the abolition of characterization and the denunciation of manat, the application of evidences and narrations. In addition to the above documents, the sayings of some jurists can be used to support the rule in question.Keywords: rule, ta'zir, Person, relation

Chapter 5 of Chapter III of the 1980 Convention on the International Sale of Goods deals with "common rules governing the obligations of the seller and the customer". In the sixth part of this article, entitled "Preservation of goods", according to Article 88, the parties are allowed to resell the goods in six cases: unconventional delay of the customer in delivery, unusual delay of the seller in returning the goods, unusual delay of the customer in Payment of the price, unusual customer delay in paying the maintenance costs of the goods, exposure of the goods to rapid corruption and following an unusual cost for the maintenance of the goods. Benefiting from this article, resale is that after the sale and transfer of ownership of the exchanges, without dissolving the sale, the contracting party can in the direction of seeking compensation or compensation or preventing the loss of the other party, the goods belonging to him to the person Third party to sell. In Iranian law, this institution apparently has no place, but its theoretical origins can be found as a whole in Imami jurisprudence. The present article intends to investigate all six licensed resale titles in the Convention separately and in detail in the criterion of jurisprudential principles by descriptive-analytical method. The result of the research is that the right or obligation to resell the goods is generally acceptable and can be found in the structure of the original jurisprudence, but in some cases, the application of Article 88 can not be applied to the jurisprudential principles, unless the secondary title is applied.

In French law, ownership is the legal relation between a person and an object. Accordingly, a lease contract is not deemed a possessory contract proper. Because the property interests are actually nonexistent (i.e. imaginary) and intangible. In this light, Article 1709 of French Civil code provides that a party binds himself to have the other enjoy a thing during a certain time. That is, the contract is of a liability nature. However, in Article 466 of Iran’s Civil Code, itself based on Emamieh Jurisprudence, a tenancy contract accords ownership of interests to the tenant. The reason is that ownership in Emamieh Jurisprudence and Iran’s law is more extensive than that in French law. In the former, ownership is arbitrary and the object of the contract can be as much arbitrary. To affect ownership, there is no need for tangible or concrete thing, because ownership is essential and does not require a substance. This theory can help shed light on contract consequences such as destruction of hired object or leasehold and the contradiction between Repudiation of Contract and a Void Contract in Article 483 and 489 of Iran’s Civil Code, respectively. This study draws on analytical – descriptive methods.

Man is a social being and with acceptance of social life, he is obliged to respect the rights of others in society. One of the basic human rights is the right to life. The Islamic Penal Code, in accordance with Islamic jurisprudence, emphasizes the right to life and has determined the punishment of retribution for intentional crimes; however, if these crimes are committed by the father against the child, retribution will not be proven. Sometimes, due to the use of new methods of infertility treatment, children are born with donated sperm that have a father other than their apparent and social father, and this creates problems in the implementation of this exceptional sentence. The main purpose of this study is to investigate the basis and cause of retribution sentence and its inclusion in relation to the owner of the sperm and the recipient of the sperm. The research method is library and documentary, using books, articles, legal, religious sources and internal regulations, in an argumentative and analytical manner and is a practical research that can facilitate the legislator in formulating more appropriate laws to explain and determine the exact status of such children. The findings indicate that although the right to use donated gametes is recognized in Iranian law, Iranian law, in the form of a few articles, addresses many of the problems that arise in the long run due to shortcomings. It can have adverse effects on the legal and social status of individuals.

Humans have been familiar with political crimes since the beginning of human existence, so this article aimed to identify political crimes in Iran and the United States. According to the law, any offense of insulting or defaming the heads of the three branches, the chairman of the Expediency Council, vice presidents, ministers, members of the Islamic Consultative Assembly, members of the Assembly of Experts and members of the Guardian Council is an insult to the head or political representative of the country. Foreigners entering the territory of the Islamic Republic of Iran In the election laws of leadership, presidency, Islamic Consultative Assembly and Islamic councils of cities and villages, spreading lies, if committed with the motive of reforming the affairs of the country against the management and political institutions or domestic or foreign policies of the country, without intending to strike To have the principle of the system is a political crime. All crimes can be considered political; Because behaviors are legally through a political process, according to which the interests and views of a particular group are served. Political crimes can be distinguished from other types of crimes; Because these kinds of crimes attack the whole value system of a government, not a small part of it. Such acts pose a threat to the ruling political power because they are a criminal act by a conflicting regime.

The epistemology of Principles of Islamic jurisprudence (usul al-fiqh) expressed in Descriptive and normative domains. The descriptive approach discusses about “is” problems and includes Usuli’s and Akhbari’s jurisprudence that will be discussed in this article. The normative approach talks about “oughts” and the nature of jurisprudencial knowledge, its sources and its possibility. The normative approach could be examined in other articles. Here, Alongside with revealing the position of Principles of Islamic jurisprudence in jurisprudential derivations (istinbat fiqhi), we tried to mention the centrality of essential validity of certainty as a common epistemic element in all of jurisprudential arguments.  To do so, first of all, the origin of this issue, the reason of its posing, and various bases adopted by Usulis about essential validity of certainty will be considered and afterwards, according to precise intellectual and epistemic Considerations of Usulis for proving the essential validity of certainty, their epistemic presuppositions will be determined and eventually, the epistemic disagreement of Akhbaris vs. Usulis (realism) will be introduced and the disefficient confrontation of Usulis with Akhbaris (subjectivism) will be assessed. According to our findings, still the more effective explanation of validity’s structure in usul al-fiqh could be given as an alternative theory of essential validity of certainty and it could be taken as a reply to Akhbarism.

Civil Act, in the article 214 has separated two words “property” and “action”. The mentioned separation may produce the image that the Civil Act does not consider the property for the action, but this is not so. Interest or action are “competence and capacity and the capability of resulting” which exist in human body, would be produced in nature or acquired and be considered as property. The submission of interest can be in form of creation of a transient affair like teaching or creation of a description of real object like painting or creation of a physical object like building an industrial piece in the objective world.In case of the realization time of interest submission, in the first case, there is agreement and its time is the time of end work, but in the two other cases there is disagreement. A group of scholars believe that for the realization of submission the mentioned object should be delivered to the tenant, and another group of scholars know the end of work as the time of submission realization. The mystery of disagreement is in the understanding of interest submission and it is “to realize and accomplish” of the mentioned capacity which would be realized as the work ends and the delivery of the created object which is “the object submitted” and not “the object transacted”; is an affair both extra and unreasonable. In case which the worker follows the employer, according to Labor Act, the costs of submission is burdened on the employer and the other cases are burdened on the hired servants.

People use their personal data in different contexts, the use of personal data is inevitable. On the other hand, the protection of personal data is a citizenship right and personal data must be legally protected. Such legal protection is fully achieved by the General Data Protection Regulation (GDPR). This European regulation is the most comprehensive legal framework for the protection of personal data. Despite the importance of personal data protection, many countries do not yet have an independent legal document in this regard or have not yet finalized their draft documents, Iran is also one of these countries that does not have an approved legal document in this regard. Therefore, the present article seeks to introduce a suitable legal framework for the protection of personal data in the Iranian legal system and identify the nature of personal data. The nature of personal data and the right to personal data is special.