نشریه دین و قانون
سال ششم شماره 19 (بهار 1397)

Helping or causing the committer of a deliberate crime to escape has been criminalized in Islamic fiqh and the Islamic penal code, and following the existing shar’i nossous[1] a special punishment is assigned for it. In the present study, after reviewing and presenting a report on the deficiencies and inconsistencies in the materials of the law and the ambiguity in fiqhi texts, a particular point of view in fiqh has been defended and some suggestions for removing deficiencies and ambiguities have been made.

Civil law in the field of options refers to a kind of option called option of condition. This option is the result of a corollary condition wherein the parties to the transaction turn it on or off for the sole purpose of measuring their profits and losses. Article 399 stipulates that the cancellation authority of the transaction must be determined based on agreed certain conditions within agreed time constraint, and the guarantee of breach of it is the annulment of contract (Article 401). The base of the article should be traced in the commentaries and explanations which exist in the famous prophetic hadith(tradition); i.e., نهی النبی عن بیع الغرر [nahyannabi ’an bay’il-gharar[1]][2]. Foqah (faqihs) disagree on the concept of the word "gharar", the most accurate of which is uncertainty or unknowingness in the good itself or in the thing which is going to be purchased, and not in other things related to the transaction. Relying on Articles 216, 563, 564, 694, 761, and 766 of the Civil Code and the opinions of foqaha and jurists, based on the tolerance of uncertainty in contracts, they can be categorized as ’oqoud-e moghabeneh[3] against ’oqoud-e mosameheh[4], ’oqoud-e mohabati[5], and the like. Therefore, by disclosing the basis of Articles 399 and 401 of the Civil Code, some contracts that are in the category of ’oqoud-e mosameheh, that is, they are based on amicability or bilateral benefit (such as peace-based contracts) and specially they fall out of the scope of the aforementioned hadith and other contractual provisions in whose essence there are risk, one can create condition of unlimited option

An effective criminal policy is formulated and implemented when all social, economic, cultural and environmental aspects of society are taken into account. Given the widespread domain of fiqh in all aspects of human individual and social life in Islamic society and the need for laws to be based on them, the development and regulation of criminal policy, taking fiqh and its all subcategories into account, undoubtedly has a significant impact on the functioning of law in relation to social facts. Moreover, with regard to the fact that the extent of criminal policy is very large, especially in the non-criminal field, in order to create a favorable society and with the least rate of crime, paying attention to criminal policy, even in fiqh of business, marriage, divorce, worship, and other types of fiqh, is inevitable. Proper or inappropriate application of fiqhi teachings, especially in the field of criminal policy, plays a key role in reducing or increasing crime. Fiqh in its policy of dealing with delinquency not only does focus on reactional and criminal measures but also it focuses continuously on the use of actional and non-criminal approaches in dealing with various jurisprudential issues such as contracts, marriages and divorces, enjoining good and forbidding wrong, preventing munkar (wrong), khums[1] and zakat[2], waqf[3], e’aneh bar ethm[4], paving the way for an unlawful or a lawful action, hijab and chastity, child custody, rules of judgment, and some principles such as  la-zarar[5] and the like. Dynamic fiqh is concerned not only with an intrinsic and partial view but with a comprehensive and structured view of its sentences along with its terms and conditions, since many non-appropriate sentences will have the opposite and criminal effect. In addition to addressing the necessity and fundamentals of efficient fiqh-based criminal policy, the paper addresses the implications of various jurisprudential issues from the perspective of criminal policy.

 

[1] In Islam, khums (literally in Arabic means 'one fifth') refers to the required religious obligation of any Muslims to pay one-fifth of their acquired wealth from certain sources toward specified causes. It is treated differently in Shia and Sunni Islam.

[2] Zakat (Also zakah) is a form of alms-giving treated in Islam as a religious obligation or tax, which, by Quranic ranking, is next after prayer (salat) in importance.

[3] An Islamic endowment of property to be held in trust and used for a charitable or religious

[4] Cooperation in doing wrong, or in doing a sin or an unlawful action

[5] A fiqhi principle according to which, in Islam nobody is eligible or has the right to hurt him/herself.

In spite of the criteria regarding the independence of the company's legal personality from the legal personality of its partners, from a business enterprise perspective, it is clear that the economic fate of the shareholder and company will be intertwined and the success of the company is the success of its shareholders. Accordingly, the confluence of interests and legal differences among shareholders and the company or corporation diminishes the economic success of the company and may in some cases jeopardize its economic life. One of the important issues in this regard is the lawsuit regarding the dividends of the corporate, which in some cases leads to the confrontation of the leading shareholders and some executives against the company initiating a lawsuit that, apart from the separate personality of the shareholder from that of the company, is a litigation against oneself. As a matter of fact, the continuation of this situation may lead to termination of the economic life of the corporation part of which is the shareholder. Paying careful attention to the bourse companies, this article addresses the existing legal vacuum by explaining the legal challenge of this important issue and examines the issue from the functional aspect of such disputes in protecting the company and its interests in legal protection of the economic life of the corporation and the problems of litigation of the macroshareholders to claim the dividend.

Since the introduction of the concept of law into Iran, i.e. the constitutional age, the issue of converting Sharia into law has been the focus of Muslim thinkers. In this regard, disagreements have arisen - especially among Shiite jurists - about whether or not to authorize human-made legislation. Subsequently, some faqihs[1] have forbidden the conversion of sharia into law, and others have found it necessary to implement sharia provisions in the context of present-day laws with the aim of operationalizing and enforcing those helpful Islamic rulings that have been neglected or not used. The present article uses a descriptive-analytical method to answer the main question of whether it is possible to convert the sharia orders into statutory law [esp. for the present issues that are new due to the dynamic nature of the world and societies]. Then, the arguments on legislation are presented by proponents and opponents from the people's representatives (members of parliament) and the arguments on converting sharia into law is discussed. The study leads to concluding that in sharia-based political systems, the principle of human-made legislation is permissible by the parliament, but the desirable situation is when the current parliament be active only in planning and identifying issues, since the responsibility of discovering, recognizing, modifying, and formulating religious rulings in the age of the Major Occultation is on the shoulder of faqihs. Moreover, the study discusses that legislating sharia is outside the scope of the parliament. Until the desired outcome is reached, however, the current system of the Islamic Republic of Iran can be considered a transitional period with minimal legitimacy provided by the legislature wherein the parliament plays an active role in legislating sharia and that the Guardian Council of the Constitution prevents the law from violating sharia