نشریه مبانی فقهی حقوق اسلامی
سال چهاردهم شماره 2 (پیاپی 28، پاییز و زمستان 1400)

Reward is one of the legitimate contracts in the school of Islamic Jurisprudential that can be used as a basis for contracts in today's process. An analysis of the truth of Reward and its judgements suggests that new contracts in the field of services and supervising the actions and work of individuals, which are called anonymous contracts, can be interpreted as contracts of Reward. In this regard, the generalization of the judgement of Reward on emerging contracts is based on the characteristics that have been proposed by the jurists for Reward, and we can briefly mention some of them: Non-conditionality of knowledge to action and exchange, non-conditionality of determining the agent, non-contradiction of Reward with negation of negligence and also belonging of Reward to action and omission, possibility of coming together term and action, possibility of belonging of Reward to any kind of action and benefit, including commercial, industrial and service, etc. In this paper, among the new contracts in progress, four contracts were addressed that have received less attention in other researches, which are network marketing, oil contracts, CODE-SHARING and medical contracts. The result of the adaptations indicted that contracts can be concluded in the form of Reward contracts.

The concept of concept is very important in all branches of science. Conceptual discussion in criminal law, especially in the field of security and public comfort, is of double importance. Since this field is closely related to the materials of Khamsa, and then there are conceptual inadequacies and ambiguities in some of these concepts; Based on this, the explanation of this category of concepts is an inevitable necessity, both theoretically and practically. Brief recognition and explanation of concepts such as terror and terrorism, and bioterrorism, war and corruption in the land and rebellion, political crime, assassination, coup d'état, and their difference and separation from each other are among the concepts that familiarization and explanation of them, both in terms of It is important both theoretically and in the practical aspect of law making, as well as in the position of judging and applying examples. This research analyzed some of the most important concepts in an analytical-descriptive way. First, these basic concepts were explained and described. Then attention was paid to the brief analysis of the attributes and dimensions, angles, territory and them. As a result of this research, the discussed concepts were disambiguated, and with the knowledge obtained of the elements and nature of each, their differences and distinctions were recognized and explained.

Government employees and agents as the executive arm of the government may commit crimes in line with their job duties that cause Weakening or depriving the public of trust in governments, so in this study, while examining the nature of these crimes, we seek to implement the criminal policy of Islamic and Iranian criminal law in the financial crimes of government employees.This research has been done in terms of practical purpose and in terms of collecting information by documentary method and by studying valid laws and sources and the obtained information has been analyzed descriptively-analytically.A progressive criminal policy seeks to minimize the criminal phenomenon or, ideally, to remove it from society. The realization of this important issue depends on the use of the facilities, capacities and pillars of society, and the effective and efficient participation of civil society in this regard can have a huge and tremendous impact on its realization. Iran's criminal policy in the legislative, judicial and executive types in relation to specific crimes of government employees is of the type of government repression. But the criminal policy of Islam, which is based on a religious and doctrinal view and is inferred from the Qur'an and hadiths, in the face of corruption, contrary to repressive models that seek the participation of civil society to suppress, seeks to take advantage of the participation and role of civil society for rehabilitation and It is a correction.

Today, with the advancement of science and technology and its undeniable impact in the field of justice, the evidence of litigation has been removed from the monopoly in certain cases. And the evidence under the heading of scientific reports and the judiciary has come to the aid of judges and courts, which, due to its high degree of scientific validity and customary certainty, has created a dramatic change in this regard.Proofs of lineage have not been without this situation and have gone beyond monopoly in the framework of proofs such as testimony, confession, rule of thumb and lottery, so that new methods of lineage, including DNA testing due to intellectual and scientific support, play an important role in realizing the science of judge and Prove the lineage in this way,However, paying attention to the principle of family expediency and the rights of the child in order to prevent the disintegration of families and to observe the envy and expediency of the child has led to the question that if using new methods of lineage and attributing the child to adultery, such an action Is the family system and the rights of the child and the public order of society compatible? Therefore, in the present study, the views of the jurists of the two sects on the validity of the principle of expediency in establishing ancestry are examined.

Following the opinions of the jurists of Islamic schools of thought shows that the contract of guarantee for the validity of ajj includes several types with the titles of absolute guarantee, deferred guarantee, current guarantee, temporary guarantee, and malimjab. The question of this study is, what are the main evidences of the invalidity of conflicting forms? And on the assumption of concluding a guarantee on these forms in custom, can they be justified in a way that they are considered correct? Or should they be annulled? In this research, with a descriptive and analytical method, an attempt has been made to strengthen the idea that it is permissible to enter into a guarantee in the form of a dispute by rejecting and refuting the arguments for the invalidity of conflicting guarantees and presenting evidence for their validity. which is sometimes common among customs, give it a shari'i aspect and free their impermissibility from illogical justifications.

Trick in Imamiyyah jurisprudence means to reach the desired Shariah and legitimate goal, whether the way to reach it is lawful or the said way itself is illegitimate, and trickery in Sunni jurisprudence means resorting to permissible ways to perform a forbidden act or cancel an obligatory one or Invalidating the right or proving the wrong, which are the ways to escape from the forbidden and to achieve the lawful and trickery in the terminology of Iranian law means the ability to use the silence or summary of the law in order to acquire the right for the unjust by ways that are against the nature of the law, these different definitions cause The difference is in the examples of trickery and consequently the strategies to deal with it. The present research is carried out in a descriptive-analytical way and aims to answer questions such as: "What are the tricks, examples and solutions to deal with them in Iranian jurisprudence and law?". Examples of trickery in Imami jurisprudence are divided into three categories: examples of real positive and legitimate trickery, examples of true negative and reprehensible trickery, examples of fake trickery. Iranian law can be divided into two parts; He divided examples of tricks that violate formal laws and examples of tricks that violate substantive laws. In Imami jurisprudence, there is no countermeasure for permissible tricks, but two solutions have been proposed for forbidden tricks; The moral solution is piety, and the jurisprudential solution is the ruling on sanctity, and in Sunni jurisprudence, the only way to deal with the trick of obeying the jurisprudence ruling is by citing the evidence of the Qur'an and narration. Strategies to deal with trickery in Iranian law include: theory of motivation or direction; Good faith theory; the theory of preventing

According to Imami jurisprudence, if a man intentionally kills a woman, then the woman can retaliate by paying half a diyat to the man. This sentence, in addition to the fact that the ransom is conciliatory in premeditated murder and requires the consent of the killer, is sometimes problematic in practice; Because sometimes a woman is not able to pay the ransom and the killer is not willing to compromise; As a result, a woman's blood is exposed to waste. There are several ways to solve this problem, including the equality of male and female retaliation, the payment of a woman's ransom from the treasury and not recognizing the ransom, and the possibility of forcing the killer to pay half of the ransom. In this article, the first and second ways are reviewed and the third way is proposed.In verse 32 of Surah Ma'idah, the Holy Qur'an emphasizes the sanctity of human life with a beautiful interpretation and considers self-murder as one of the greatest sins, and legislates the guarantee of retribution and blood money to prevent its commission as punishment for criminals and compensation for some damages.

One of the most important crimes against peoples' spiritual personalities is qadf (accusation of adultery or sodomy to a person) upon which there is a controversy among scholars in its related rulings. The majority of Imamiyah Jurisprudents considered it to be a crime confined to the words, while some scholars such as Ardabili consider it beyond the words. Seemingly, Ardabili's viewpoints include the contemporary methods and the article 246 of the Islamic Penal Code is adaptable to Ardabili's standpoint. Deploying an analytical-descriptive method, the current research is carried out. Having investigated the concept of qadf and having proposed the scholars' popular opinions, the researchers reviewed Ardabili's viewpoint to investigate issues of qadf the researchers try to know that what is Ardabili's viewpoint controversy to the majority of scholars' and how much is the Islamic Penal code applicable to Ardabili's viewpoint? The findings of the research reveal that although the law-maker has followed the majority of Imamoyah scholar's opinions, it has approved Ardabili's viewpoint in some issues such as the method of attributing qadf.

In his most important work, Al-Kitab wa Al-Quran, Mohammad Shahrour, a contemporary modernist from Syria, has presented new issues and theories in the field of Islamic sciences. By criticizing traditional jurisprudence, he has explained his theory of limits under two new terms, "endurance" and "being a Hanifi", and based on that, he has presented novel opinions in the field of rulings. Shahrour believes that human beings and beings in the universe tend to change and deviate (being Hanifi) and need God to guide them to the straight path (endurance). In addition to the above-mentioned book, his jurisprudence opinions are mentioned in the book "Syntax of New Principles for Islamic Jurisprudence". This article seeks to analyze and analyze his theory of limits by descriptive-analytical method to obtain the answer to this question: Why and how did Mohammad Shahrour introduce the jurisprudence theory of limits? The result of the research showed that the theory of limits of consciousness is influenced by his mathematical mind, which with the help of mathematical and geometric functions considers the possibility of curvature of the straight path in six states and explains the types of limits of Islamic law in the same framework. Shahrour believes that the verses of Hudud are the basis of legislation and the verses of rituals are the basis of individual piety. He considers twelve conditions for legislation in the contemporary period, such as: understanding the Arabic language, considering the scientific background of the present age, contemporary economic and social laws, and so on. He believes that in order to understand the problems of inherited Islamic jurisprudence, which is not appropriate to the knowledge and conditions of the present century, it is necessary to find a solution by recognizing the causes of this crisis.

Velayat-e motlagh-e which means "absolute guardianship" is a term used in different sciences. In this paper, the application of this term in Fiqh "Islamic jurisprudence" has been discussed. The paper hypothesizes that the assignment of iitlaq for Velayat "guardianship" does not have the same meaning in Fiq'hi "Islamic jurisprudential" terms. An overview shows that this word is used differently according to the topic under discussion. At least six meanings and concepts of this word can be seen in the phrases of fuqahā (Islamic jurists), which is a sign of the relative nature of its meaning and concept. The Velayat that "it is not bound by expediency", "in addition to the public sphere, it also includes the private sphere", "beyond the scope of the necessary affairs of the society, it contains all public affairs", "in addition to the implementation of Sharia rulings, tries to enact laws in the realm of Sharia principles", "in addition to the implementation of rulings, establishes laws in the realm of Sharia Mubah "permitted" and obligations" and "Velayat over the property of the Imam (AS)" is referred to as Velayat-e motlagh-e (absolute guardianship). This variety of usage shows that the assignment of iitlaq in the term Velayat-e motlagh-e does not have the same meaning and concept and it has a different meaning depending on the topic under discussion and in dispute. The purpose of this research paper is to show relativity in the idea of iitlaq in the Islamic jurisprudential term of Velayat-e motlagh-e. The research method will be descriptive-analytical based on reliable Fiq'hi "based on Islamic jurisprudential method" sources.

A comparative study in the theory of imprevision after the amendments of French Civil Code in 2016 and comparision with the similar jurisprudence rules in Imamiah jurisprudenceAbstractAlthough in jurisprudence the reference to the theory of Imprevision is relatively limited, but nevertheless some rules and principles of jurisprudence such as the rule of hardship, new swindling and harmlessness in justifying such theories have been cited by legal writers. Although some jurists have equated the harmlessness, hardship and new swindling rules with the theory of Imprevision in French law, a distinction must be made between the above rules and the theory of Imprevision. However, the theory of hardship has enough consistency to resolve the troublesome situation of unpredictability and prevention until the ambiguity is resolved and a new rule is enacted. In other words, judicial modification or revocation of the contract, like the theory of non-contingency after the amendments to the French Civil Code, can be deduced from the rule of hardship.Key Word: theory of Imprevision, harmlessness rule, hardship rule, the theory new swindling

The institution of Velayat-e-Faqih, as one of the manifestations of Islam, has a strategic and decisive role in the criminal policy network of the Islamic Republic of Iran and its orientation. In the theory of political discourse of the Islamic Republic of Iran, the Supreme Leader is the ruler of the Islamic society, whose powers and guardianship are present at all levels of legislative, judicial, executive and participatory criminal policy. Legislative criminal policy oversees the enactment and oversight of the country's criminal laws and regulations. Vali-e-Faqih, based on the powers arising from the religious arguments of the province as well as the Constitution of the Islamic Republic of Iran, has the power to make policy and criminal legislation directly and indirectly. Implementing direct policy and legislation of the authorityThe institution of Velayat-e-Faqih, as one of the manifestations of Islam, has a strategic and decisive role in the criminal policy network of the Islamic Republic of Iran and its orientation. In the theory of political discourse of the Islamic Republic of Iran, the Supreme Leader is the ruler of the Islamic society, whose powers and guardianship are present at all levels of legislative, judicial, executive and participatory criminal policy. Legislative criminal policy oversees the enactment and oversight of the country's criminal laws and regulations. Vali-e-Faqih, based on the powers arising from the religious arguments of the province as well as the Constitution of the Islamic Republic of Iran, has the power to make policy and criminal legislation directly and indirectly.

In this research, for the first time, based on normative futures studies in Islam, the physician's commitment to deny ignorant deception with emphasis on Imami jurisprudence and Iranian law is discussed. The present study, which was carried out by descriptive and analytical methods, verse 29 of Surah Al-Nisa ', has considered the narrations and the construction of the wise as the reasons for denying the deception of the ignorant. If the doctor or his / her secretary refers the patient to a laboratory, hospital or other doctor inappropriately and unnecessarily, and allocates a percentage of the examination and visit for himself / herself and pays for the patient, who has trusted him / her, this The action of the physician or his secretary is under the jurisprudential and legal title of deceiving the ignorant, and also the doctor does not prescribe a placebo, assuming that there are alternative ways for it, even assuming that he wants to benefit the patient, depending on the patient's reward. He receives, it is not possible to remove the guarantee and responsibility from the doctor, he has paid, that due and proper attention to this commitment, the doctor can achieve a better efficiency of tomorrow's health system.

In corporate law, the rule that a company has a separate legal personality from the partners is a fundamental rule. Separation of the legal personality of the company from the partners and the limited liability of the partners towards the debts of the company has caused the companies that are subject to the limited liability system of the partners to provide suitable coverage for high-risk and sometimes fraudulent activities of the partners. This puts the company's property and assets at risk, but at the same time the risk of such risks is due to the limited liability of external partners and is imposed on the company's creditors. The rule of law veiling in English law is a guarantee of fair enforcement, which removes the legal personality of the company and abolishes the rule of limited liability of controlling partners and their direct liability to creditors. In Iranian law, citing Islamic rules such as no harm, prohibition of abuse of rights (Article 40 of the Constitution) and the rule of prohibition of fraud, the theory of piercing the corporate veil can be applied to these rules. In this article, first the rule of piercing the corporate veil is explained and then the judicial procedure of England and Iran is examined by referring to the rules of jurisprudence and common law.

According to most of environmental experts, the main reason for the Enviromental crisis is due to some legal defects that cause conflicts of interest in implementation of environmental laws and regulations. Meanwhile, in the light of the provisions of Article 2 of the Law on Environmental Protection, some governmental agencies which are in charge of the environmental protection are one of the main parties to this conflict. The solution to this problem can be reached through reviewing the provisions of Article 2 which has delegated the legal structure and status of the most important custodian of environment, The High Council of Environmental Protection, to an Intra-Departmental and Inter-Ministerial Administrative Council. In this context, some governmental agencies have preferred the interests of the ministry over the environmental interests of the country, whose decisions and approvals in the field of environment are drawn within the framework of the government's short-term economic interests, and in practice, environmental laws and regulations are overshadowed by these interests. Based on the rule of Prohibition of Detriment the position of this council should be upgraded from the Administrative Council within the branch to an inter-force (between Executive, Legislative, and Judiciary Forces) and governing council. This can be an effective step in resolving conflicts of interest and in implementing environmental laws and regulations.

Cause to sustain a loss, is haram and against the benefit and causing a defect in something. Assassination also means creating fear and terror among the people. Perverseness is going beyond moderation and is contrary to reform, and it means to defect, annul and make useless and ruin. Bioterrorism means mass killing by biological materials. This type of pollution, which is done intentionally and aggressively, is considered haram from the Islamic point of view. Cause to sustain a loss, pollution and perverseness are all among the concepts for which Islamic Jurisprudence, have issued rulings in jurisprudential books, and in most cases, they have issued a fatwa, to quit or commit, on the various issues. Meanwhile, the social system order and the maintenance of this order are of special importance for Islam, and this is the obstacle to doing things that cause disruption of social order. Cause to sustain a loss and pollution can sometimes lead to murder and sometimes injury. In both cases, the ruling is taken from the verses of sanctity. The ugliness of this act is clear even executing them about non-Muslims and the enemies. In addition, assassination and surprise murder has also been condemned. Treason or betrayal and disturbing the public order of the world are other reasons for being forbidden. Therefore, assassination or pollution with the intention of harm, which usually leads to the murder of a person, is haram for many reasons. It can be understood from these meanings and concepts, for any kind of action that is equal to what has been said, adapting the rational and narrative prohibitive arguments can lead to haram ruling for them.

Heresy means introducing what is not from religion into the realm of religion, it is considered undesirable and forbidden. On the other hand, because people have intellect, authority, creativity, to improve the quality of life, always have better ideas, tools and methods to meet the needs. They enter social and economic life, and as a result, the requirements of the social and living environment change in each age and time, and the ideas, customs and traditions of the believers and the lifestyle of the believers are also affected by these changes. It penetrates into religious traditions and mixes religious traditions with heresies. Hence, in the history of Islam, Muslims have been faced with the requirements of the age and time with caution and sensitivity.For example, some Kharijites were of the opinion that one should adhere to the religiosity of the prophetic age, and any difference with that religiosity is considered heresy. Also, some Salafis considered the beliefs and traditions of the first three centuries as religious beliefs and traditions and fought against any new thing. Truth gives originality to new ideas and insights by linking new religious knowledge with religious teachings and teachings, so religious and jurisprudential modern thinking and its results can not be considered heresy.In this article, by gathering information with library tools and using descriptive and analytical research methods, the boundaries of heresy from religious and jurisprudential modernism have been obtained, and only those categories of heresies that contradict the indisputable religious teachings of the Islamic Ummah are heresies. It is counted.

Ziyāra (pilgrimage) has been for long discussed in muslims` scientific and theological societies. Among all ziyāras (pilgrimages), Sayyid-al - Shuhadā`s Ziyāra (pilgrimage) is of such a special importance that his Ziyāra (pilgrimage) has been specifically recommend by Imams. Numerous riwāyats (narrations) are there about the virtues of Imam Husayn`s Ziyāra (pilgrimage) which have emphasized on his Ziyāra (pilgrimage). In Islam, Ziyāra (pilgrimage) of no other person, even the other Infallibles has received such an emphasis. The specialities of Imam Husayn`s Ziyāra (pilgrimage) in the Infallibles` words and the mutawatir riwāyats (unbroken chain of transmission of the narrations) about the virtues of his Ziyāra (pilgrimage) motivated us to conduct the present study, through taking notes, and do a thorough review on the most important and reliable Shi'a riwāyat (narrative) resource, i.e. Kamil al-ziyarat by Ibn Qulawayh, Al-Shaykh al-Mufid`s teacher. Looking at other resources such as Zad al-ma'ad by al-'Allama al-Majlisi, we extracted riwāyats (narrations) in which there are not any weaknesses or flaws regarding chain of transmission. Hence, any faqih (jurist) or principle decreeing according to it, can`t give any decree except indispensableness of Imam Husayn`s Ziyāra (pilgrimage).Then, using Rijal reviews and Usul al-fiqh principles (Islamic jurisprudence) , alongside with Ijtihad evidences, we proved the indispensableness of Imam Husayn`s Ziyāra (pilgrimage

The map of custom in deriving rulings is very serious, so that we can claim that many of the differences in jurisprudence are the result of customary statements. Therefore, the understanding of the Shari'ah evidences for the next generations depends on their understanding of the custom of the time of issuance, and according to this understanding of this issue, they analyze the Shari'a evidences and attack it at the same time.Regarding custom, it has been discussed in the past among the books of jurisprudence and principles such as Sharia al-Islam, Jawahar al-Kalam, Arwa al-Wathqa, Kifayeh al-Osul, Fawaid al-Asul, etc. In the present era, books have been written separately in this field. And has been examined. But what is different in this research is the conflict between custom and custom, which is not addressed in books and articles. In this research, first the meaning of custom and its types are briefly discussed, then we dealt with the main issue of the conflict between custom and custom and the preference of each of them. That is, when and where general custom takes precedence over specific custom. Or when practical custom is preferred to word, we have brought the criterion of preference here.Keywords: conflict, custom, preference, preference