مجله مطالعات فقه و حقوق اسلامی
پیاپی 28 (پاییز 1401)

In Islamic jurisprudence, there is not consensus in this respect that if principal is or is not bound to the contract not concluded by owner also about the basis and nature of dissolution of such a contract by principal. Section 252 of civil code, however, says: “it is not necessary that permission or rejection to be instant. If delay may cause the principal to incur a loss, he may dissolve the contract”. According to the section, the principal is considered bound to contract but in respect of dissolution of contract by him when delay by owner may cause a loss to the principal, phrase “dissolution” is used; a phrase which has no exact meaning in Iranian legal system although some jurists consider it as cancellation. In this research, section 252 of civil code concerning being bound of the principal to the contract and its effects also meaning of dissolution of contract, is analytically and critically studied and at the end, an amendment proposition is rendered.

One of the challenges that human society is seriously dealing with its consequences and the problems caused by it are increasing day by day, is virtual innovations by cyber criminals. Since many laws in the world do not have the same efficiency and effectiveness in cyber space, it is possible to easily violate them without the worry of facing criminal and non-criminal responses. Anticipating criminal sanctions in new fields such as information and communication technology, in addition to the protection and stability of order and security of the society, also provides the human rights standards of citizens. It is obvious that the effectiveness of the criminal and non-criminal sanctions regarding the offenses Virtual space depends on deep, wide and multi-dimensional research, but before this, there was less research about the efficiency and effectiveness of the responses mentioned in this field, as well as providing a perspective of a suitable criminal and non-criminal response system. Therefore, with the aim of obtaining the desired response, this research has been written with a descriptive-analytical method and using library and internet resources. According to the results of this article, it is necessary to use the capabilities of the restorative justice model to grow the efficiency and effectiveness of the guarantee of criminal executions.

After many demarcations, the new Islamic penal code has been finally approved by the parliment and came into force since the May 2013 following its confirmation by the Guardian Council. Compaired with the former code enforced since 1991, the last code include some innovations which have made it larger. One of these innovations is concerned to prediction of proofs of evidence in the penal code whereby, the fifth part of the first book of the new code has considered the general rules of proofs of evidence. Considering that the legislator for the first time has collected the proofs of evidence, normally concerned to the formal legislation, in a substantive criminal code, an analysis of the new approach seems to be so essential to study. In this article we have tried to study critically this policy from different aspects. This approach leads us to a new perspective on the Islamic Penal Code, which, while not as prominent, raises important issues in legal analysis.

" expediency " is the basic element of the philosophy of laws and rulings, and this is the case of Islamic schools, which is in two general areas: jurisprudence and law, on the one hand, and jurisprudential propositions and articles of statutory law, on the other hand. Other, it is seriously discussed and the role of expediency element in the final decisions of jurisprudence scholars and its executors is considered inevitable. Although the independent role of expediency as a source is not a matter of coincidence, but its instrumental role, apart from the fact that it is a matter of consensus, is undeniable in Islamic punishments. What this article aims to explain is that today in the legislation and implementation of Islamic punishments, one should also pay attention to the element of expediency and the philosophy of punishment, and in case of discretion, the ruler of Sharia can use the secondary rulings and the element of expediency for some determine alternative punishments, or not implement some. Therefore, in the opinion of expediency, both in the stage of enactment and in the stage of interpretation of laws and their application to examples and the implementation of Islamic punishments, it is effective and it can even change the quality and manner of the implementation of Hudud; Because if a law is passed and is not implemented for any reason, it will lose its declaratory nature. This issue is also true regarding the punishment of stoning, amputation, amputation, and amputation of hands and feet, for crimes such as adultery, robbery, and moharebeh.

The possibility of using criminal tools in legal affairs is a matter of dispute between jurists. If a person is accused of committing a crime, the possibility of his arrest has been accepted in some cases, but the use of such punitive measures in legal matters requires the examination of its authorization or prohibition from a jurisprudential and legal perspective. The conflict of rights between creditors and debtors has led to disagreements in this regard. Considering that the principle in initial treatment of individuals is that their actions are based on integrity and innocence, it seems that if the debtor claims insolvency, it will not be possible to detain him until the truth or falsity of his claim is proven. Imami and Sunni jurists have also examined this matter- an examination of the evidence of their rulings will also demonstrate that it is not possible to order the arrest of a debtor claiming insolvency. In this article, the correct ruling in this case will be determined through the epistemology of this important point of view from perspectives of the jurists of both sects and judging the proposed opinions. Noting the correct theory in jurisprudence, we will provide a detail interpretation of the relevant laws applicable to the debtor claiming insolvency.

The possibility of using criminal tools in legal affairs is a matter of dispute between jurists. If a person is accused of committing a crime, the possibility of his arrest has been accepted in some cases, but the use of such punitive measures in legal matters requires the examination of its authorization or prohibition from a jurisprudential and legal perspective. The conflict of rights between creditors and debtors has led to disagreements in this regard. Considering that the principle in initial treatment of individuals is that their actions are based on integrity and innocence, it seems that if the debtor claims insolvency, it will not be possible to detain him until the truth or falsity of his claim is proven. Imami and Sunni jurists have also examined this matter- an examination of the evidence of their rulings will also demonstrate that it is not possible to order the arrest of a debtor claiming insolvency. In this article, the correct ruling in this case will be determined through the epistemology of this important point of view from perspectives of the jurists of both sects and judging the proposed opinions. Noting the correct theory in jurisprudence, we will provide a detail interpretation of the relevant laws applicable to the debtor claiming insolvency.

Economic analysis of law is a theory that evaluates and corrects legal regulations by using economic tools, considering efficiency as it’s main goal. Reviewing some of the critiques, raises doubts about the possibility of utilization of it’s whole achievements in Islam. Despite some efforts to prove the theory on the basis of pure rational propositions and jurisprudence rule of expediency, those reasons cannot prove the theory totally. The important question that hasn’t yet been answered, is that can any foundation be found in Islamic jurisprudence that proves it totally? This article has been written on the basis of this necessity, proving the impossibility of concluding the totality of the theory from Islamic jurisprudence. It also presents, for the first time, a new attitude in light of the rule of system disorder negation. Although, it seems difficult to admit the possibility of correcting Islamic verdicts in order to gain private utility as a general rule, but if the inefficiency of verdicts or lack of them creates disturbance in economic subsystem’s interests in a big scale, lifting inefficient verdicts or issuing efficient ones will be allowed but necessary, because governmental verdicts, based on economic system disorder negation, are prior to primitive and secondary verdicts. Economic analyzing of Islamic rulings in order to preserve general interests is permissible just in cases of contradiction with governmental economic expediencies, it is also reliable as long as expediency necessitates and it doesn’t appose stronger expediencies. so it has a more restricted domain compared to the theory.

Conservatism is one of the influential matters on jurisprudence and has two types of admissible and inadmissible. The effects of these two on jurisprudence have to be known distinguished. The question is how inadmissible conservatism has influenced our Inference. Study shows that unjustified conservatism has had effects in reducing the use of the Qur'an, reason, and the criteria of rulings, although in optimal situation there has to be no such an effect because these have vast capacity in Inference and conservatism has prevented their admissible use. conservatism has also played an important role in increasing reliance on consensus and narrative while some of them are both eligible and should be removed from the realm of jurisprudential inference so that jurisprudence can grow with expectations of anytime.

Undoubtedly, dust collection has negative effects and negative consequences for humans and may endanger their physical and mental health in various aspects. Regarding the general liability of the Islamic State against the citizens, the responsibility for coping with this phenomenon lies with the government and the Environmental Protection Agency. Due to the importance of coping with this issue, the legal jurisprudential analysis of the civil liability of the state against the harmful effects of dust on the health of citizens is of particular importance. This descriptive-analytical study analyzed the issue based on well-known jurisprudential and legal principles by examining Jurisprudential principles and mandatory rules and It has been concluded that the civil liability of the government for damages caused by dust can be justified on the basis of the rule of respect.

Interference   is the important issue in  methodology  and   intellectual   debate   by  which  Usulis   can  solve  problems  of  the  contradiction   among  edicts  in  obedience   position.  Shahid Sadr   has   excluded   the  interference   from  real  conflict  and included it  in the entry   part.  From the  view  point  of  object  of  association ,  despite  of   difference  in dividing , it  can be   summarized  in  three  sentences:  interference  from   lack of   capacity  of legally  commanded   person(mokallaf) , interference  from precedence  of   unlawful issue  for  obligatory  and  interference  from casual correlative  two external act Conflict arises in the field of rules and criteria ;  when    preference  of object  of  association  of  one  of them  is  forced , the  preference  in the  first   issue( edicts) of  duties  of  the   legally   commanded  person  and  the  second  issue ( common basis)  is  by  the  master.  The requirement  of the  primary  rule  in the  interference  among  edicts  is  disambiguation  and  it  is  not  among  common basis, because,   it  is  impossible  to  gain   the  intellect.  The  most  important   result   of  balance  and equality  between  two  interference   edicts   is  unity and plurality  of  punishments.   If   interfered  edicts  are  not  equal    importantly ,     the  edict  which  is   more  important    precedes other  one.  However, Usulis   have  mentioned   different   preferable  edicts in terms  of object  of association  of  edict, each  of  them   has  many effects in different issues of urisprudence. Since  jurists   have   difference  in   interference  and  its    categories   and  are  responsible  for   it  and  its  correction  ways ,   it  is  important  to  investigate  it; thus,   authors    have   investigated   it   by  descriptive-analytic  method.

Well-known Imami jurists believe that marriage contract, are not permissible  by conduct. in addition to the intention and consent of the parties, requires the form of offer and acceptance. In the form of acceptance, they agree that it is not exclusive to certain words and accept the correct with any word that indicates the consent of the couple, but they have considered the form of offer only in certain specific words. Contrary to this view, Sunni jurists, in marriage, like other contracts, have not considered the word of offer to be limited to the words of the Qur'an and Sunnah, and consider any word that indicates a purpose to be useful in marriage. This view can be considered the flow of this ruling in other contracts and the exception of marriage in the rival view. This article re-evaluates the reasons for the monopoly of the form of offer in marriage and criticizes the famous view of Imami jurists. In this regard, he has benefited from a comparative study of the opinions and fatwas of Sunni scholars and their arguments in this regard.

Despite the legislative accuracy in the enactment of laws, there are times when one is unable to enforce two rules of the law at the same time. In these circumstances, it is necessary to clarify which rule the individual will implement. one of the most important issues is the necessity of interpretation of laws, incongruity among the legal provisions which constitute the ambiguity in the manner of law enforcement. incongruity occurs in the implementation phase of the rule, and at this stage they are not aggregated, meaning that it cannot be done at the same time. in the present study, there are various types of incongruity and solutions to solve it with regard to whether there is preferential between the two sides. it also tries to analyze one of the examples of incongruity in criminal law, that is, multiple criminal identities, so that in material multiplicity, as the basis of the legislator is a punishment for two acts of crime, it is accepted as the basis of two offences. it is necessary to obtain a rational method in order to provide coherence within the legal system.

Usury is one of the most important issues that has plagued various human societies since ancient times and has always caused significant economic and social harm to members of society. Accordingly, in the religion of Islam, many texts have ruled that usury is forbidden. However, some Muslim jurists and thinkers have included a chapter in their works entitled "The Trick of Usury" in which they have introduced methods through which transactions are made that appear to be similar to non-usury transactions. They have usury and accordingly, they are not subject to the ruling on the sanctity of usury. The most important question in this regard is the ruling on using the trick of usury. There has been disagreement among jurists about the ruling on methods of escaping the usury deal, and some, citing the conflict between the use of these methods and the philosophy of the sanctity of usury, believe that this action is illegitimate, and on the other hand, some claim based on the content of certain narrations. They have said that cheating usury is out of the sanctity of usury specifically or professionally. According to research, not only is the use of usury tricks free of problems, but also the sale of object can be used as a way to avoid committing usury transactions.