نشریه مطالعات فقه اسلامی و مبانی حقوق
پیاپی 45 (بهار و تابستان 1401)

Among the challenging and important issues in Iran's criminal law is the investigation of the relationship Muharabah and Ifsad – fi al- Ard (corruption on the earth); Crimes that entered the discourse of criminal justice in Iran with the victory of the Islamic Revolution. The Islamic Penal Code of 1392, in articles 279 and 286, has provided for the two mentioned titles as independent crimes, which ended several decades of disagreements in judicial procedures. The examination of the legislative process shows that after the Islamic revolution, regardless of the lack of substantive law codified until 1361, the Revolution Courts issued numerous verdicts with the titles of Muharabah and Ifsad – fi al- Ard, accusing some of the leaders of the previous regime and groups involved in regional disturbances and conflicts until the title of "Mohareb" was defined in the Hudud and Retribution Law of 1361 and despite the differences in the actus reus, mens rea, the scope and even the influence of motivation in these two titles, article 183 of the Islamic Penal Code of 1370 considered Muhareb and Mofsed fi al-Ard compatible with each other and placed them in the same row. A look at the jurisprudential sources also shows the difference of opinions in terms of inference from verse 33 of Surah Ma'idah. Many Islamic jurists and commentators consider these two titles to be the same description, and some consider them to be independent in terms of meaning or example, and have considered the general-special relationship between these two titles. Using the library resources and with a descriptive and analytical approach, the author has investigated jurisprudence texts and judicial procedures and has come to the conclusion that the relationship between the two titles Muharabah and Ifsad – fi al-Ard, is Absolute General-Specific.

Borrowing is among contracts that lead to acquisition according to the Iranian law, but there is disagreement among lawyers about the type of property, and since the appearance of Article 648 of the Civil Code is such that states the possibility of borrowing fungible property, some jurists do not consider the loan of non-fungible property to be correct. There is also a difference of opinion among the jurists and, consequently, among the lawyers about the borrower's responsibility to pay the price of the fungible property in case of difficulty in giving a parable and also about the borrower's responsibility to return the non-fungible property. But the basic question is that is it not possible to borrow the non-fungible property? Also, in the case of the borrower's excuse for rejecting the parable, what will be his responsibility to return? The results of this research show in a descriptive-analytical and critical way, that First; According to the opinion of the majority of the jurists, borrowing the non-fungible property is also possible; accordingly, there is no need to use other contracts such as the loan contract and Article 10. Second; in paying the price of fungible property in case of impossibility of returning the parable property, the price of the day of payment is the criterion according to the popular view, and in rejecting the price of the non-fungible property, given the borrower's responsibility as to the parable property in both fungible and non-fungible property and replacement of it with the price in non-fungible property, the price of the time of payment is valid. It seems that the legislator has paid attention to the final opinion of Mohaghegh Helli in Sharaaye’ al-Islam, an opinion that is more compatible with Articles 648 and 650 of the Civil Code.

Societies have norms and values, the violation of which is considered a crime and the perpetrators will be punished. Based on one idea, any person who ignores these values ​​should be punished only once; this issue is discussed under the rule of "prohibition of re-prosecution and re-punishment". In Iran's criminal law, the legislators of different eras have had different orientations towards the mentioned rule. According to the criminal laws before the Islamic revolution, the acceptance of the rule was limited and conditional, but after the Islamic revolution, in the laws passed in 1361 and 1370, re-punishment was accepted. However, in the Islamic Penal Code passed in 1392, the prohibition of re-prosecution is accepted with conditions only for Ta’zir crimes. In the criminal law of Afghanistan, from the distant past, the rule of prohibition of re-prosecution was accepted in a limited way following the Hanafi jurisprudence, but today, the legislator of this country has properly supported it in various laws, including the Criminal Procedure Law and the Penal Code.

Addition of the Shahadat-e-Thalethah (third testimony) to Azan (the call to prayers) and Iqama was discussed more or less among Imamiyah jurisprudents from the early centuries. But the important question is how the third testimony influenced by the society has changed from prohibition to obligation despite strict discipline in the jurisprudential method? The answer to this question contains methodological points in jurisprudence and also shows how society affects inference. In this article, the opinions of Imamiyah jurists have been collected in a descriptive way and by referring to jurisprudential sources from the period of Companions of the Imams to the contemporary era about the third testimony in the Azan and Iqama. While examining the jurisprudential views in four time periods (Shia narrators, Sheikh Sadouq until the 10th century, the 11th and 12th centuries, and the 13th century until the present age), their jurisprudential evidences and methods have been analyzed. In addition to the fatwa documentation, the social conditions of each period have also been examined and its effect on the fatwa has been shown. As a result of this research, it becomes clear how jurisprudence has evolved over time and how it is affected by social realities; Also, if the influence of the society on jurisprudence is in the form of more accuracy in ijtihad and discovering more precise reasons to answer the issues needed by the society, these developments do not conflict with the discipline of the method of inference. The mastery of the jurisprudential method, the final product of this development, has preferred saying the third testimony with this additional clause that it should not be considered among the parts of Azan in the eyes of custom. This is an additional clause derived from the general rules of jurisprudence and is not influenced by the society.

It is God's will for man to cultivate the earth and enjoy its goodness and blessings. The request for the development of the land has been issued by Master to His servants, which indicates the desirability of development for Him and its obligation in exchange. It seems that this development is formed by settling in the land and planning to live in it. But the question is: What is the initial rule of housing development and construction? What are the reasons for it? Due to the verses of the Quran, residential use is obligatory in some circumstances and in some circumstances it reflects other mandatory rulings. From all the narrations such as revitalization of dead lands, building of walls, caravansary, etc., it is inferred that the initial rule of construction is permission, but according to the manner of the wise and jurisprudential rules of preserving the order, negation of harm, construction and providing welfare, house building in an a adequate and desirable level is obligatory. In order to obtain the findings of the research, which has been obtained with a descriptive and analytical approach, legal sources and rules, as well as the manner of the wise, have been used.

Administrative system is one of the most fundamental concepts in the field of governmental administration, administrative law and fundamental rights, and corruption is one of the most challenging phenomena in the contemporary world and a serious obstacle to comprehensive development in all countries, especially Afghanistan and Iran. In recent years, due to the spread of the destructive consequences of corruption, attention to the factors, methods of combating it and providing the necessary measures has increased. There is disagreement about the positive or negative role of bureaucracy on the administrative system and, ultimately, the occurrence of corruption, and the popular opinion in the third world countries such as Afghanistan and Iran reflects the negative function of bureaucracy on the administrative system of these countries. The present study uses a descriptive-analytical method to examine the role of bureaucracy in the development of corruption in Afghanistan and Iran. The achievement of this writing is that bureaucracy, instead of making the administrative system efficient in the path of economic, political, social and cultural growth and development of these two countries, has caused the inefficiency of the administrative system and caused it to suffer from various corruptions.

The contract of sale is one of the oldest and most common contracts in societies. This important contract has been signed by the holy legislator in the sacred Shari'ah of Islam and due to its customary nature, the jurists have provided definitions of it. By carefully reflection on most of the definitions it is understood to mean that the object of sale must be a concrete object, whereas nowadays properties that do not exist externally, such as digital currencies and various types of rights, including copyright, goodwill, etc., are commonly bought and sold. Examining the viewpoints of the jurists, it is clear that there is disagreement among the jurists regarding the obligation of the object of sale to be objective, and some of them have defined the sale as "transfer of possession" and others as "transfer of object". There is also disagreement in this regard in the opinions of lawyers. In the Quran and tradition, there is no mention to the necessity of the objectivity of the sold property. Also, no text has been found for this issue in jurisprudential sources, and earlier jurists have specified this condition based on the fatwas of other jurists. Although in 1928 AD the definition of the contract of sale was considered as a definition compatible with society and custom, but in the current period the arguments of the proponents of objectivity are unacceptable and subject to criticism and the term "object" should be removed from the definitions and a term compatible with the customary reality be replaced. According to the authors, this term is “property”, including concrete object, right, benefit, etc. This research has been done with a descriptive, analytical method based on library sources.

For some criminal acts, the Holy Legislator (God as the law-giver) has mentioned some ancillary punishments in addition to the principal punishment. Murder is considered as an impediment to inheriting anything out of the estate of the murdered person if it is deliberate or out of their blood money(Diyah) if it is not deliberate, i.e. manslaughter. The idea that murder prevents a murderer, just like the case of inheriting, from being a beneficiary of the murdered person’s will is in need of jurisprudential and legal analysis. The issue lacks any explicit statement in our sources of Islamic narrations and legal articles, hence it was tried to find the taste of the legislator by examining similar subjects such as the murderer heir, the validity of the content of a will in case of suicide committed by the testator, or a liberated slave who is the murderer of his/her master and the spirit of the law was utilized for discovering the superior opinion in legal doctrine. Detailed examination based on the chronological order of making a will and the oppressive intentional deadly act, as well as detailed inspection based on the ability to modify the will after a deadly act, leads us to this conclusion that in case of any deadly act by the legatee after a will is made and also of the inability of the testator or his/her lack of opportunity to modify the content of the will after the deadly act, the legatee is sentenced to testamentary deprivation.

The African continent, for reasons such as ignorance, sectarianism, political and economic changes, the absence of a national government, the spread of corruption, etc., has always been prone to the emergence of terrorist groups and non-state actors in creating insecurity. A quarter of the world average terrorist violence occurs in Africa; because terrorist groups are active in half of African countries. therefore, despite the ratification of several documents by the international community and creating structures in the framework of Rome Statute for establishment of the International Criminal Court (ICC) and also establishment of case and complex international criminal courts, the legal mechanisms of these courts was not somehow effective to counter international crimes in the African continent by implementing the Jurisdiction of ICC; because the position of the court to deal with crimes under jurisdiction, faced the African governments with challenges, which in many years and recent decades caused non-cooperation, threatened to leave or resign from the court with the claim of not considering the immunity of high-ranking heads of government, as well as discriminatory proceedings in the jurisdiction of the court. Therefore, the non-cooperation of African governments with the court led to the establishment of the African Court and the addition of the "Malabo" document to it in 2014, which according to Article "28F" of the annexed document to the statute of the African Court, dealing with terrorist crimes was included in the jurisdiction of the African Court. Therefore, in order to identify the scope of the Court's jurisdiction, while studying the attitude of the Additional Document in the evaluation of terrorist crimes, this article evaluates the challenges facing the African Court in legal achievements according to the framework of the Additional Document. [English]

The legitimacy of Waqf (endowment) of bank note has benefits due to the economic transformation that society needs. The legislator in Article 58 of the Civil Code, which has a jurisprudential background, considers the subject of endowment as non-consumable property. Money is consumable property; therefore, the validity and invalidity of its endowment for the purpose of normal use and transfer of ownership is a matter of controversy. Some reasons have been established for the validity of that endowment some of which have been accepted by a range of jurists. The latter group is of the opinion that if that contract is not valid as a Waqf, it is legitimate as an independent contract. The other opinion is also correct according to some other authorities. The nature of paper money, the legitimacy of endowment of banknotes and the nature of that contract are questions that we are seeking to answer. Considering this legal act as a Waqf is, due to the weakness of the evidence, ijtihad against the text, but the said Waqf as a nameless contract, with regard to the acceptance of the principle of freedom of contract in jurisprudence and statutory law, the unity of the criteria of Article 758 of the Civil Code with Article 10 of that law, the principles of correctness, permission, necessity and lack can be correct.

One of the most commonly used terms in jurisprudence and the basics of jurisprudence about the enactments of Shari'a is that whether they are instructional or mandatory? Despite the widespread use of the term "instructional rule" in the basics of jurisprudence and jurisprudential texts, there has been no independent discussion of the multiple meanings and concepts of this term that has created the context for confusing topics and unclear content. Based on this research that has been done in order to explain the meanings of "instructional rule" searching on different topics and areas of jurisprudence and theology, the terms “Mawlavi” (mandatory) or “Irshadi” (instructional) has been found sharing between several meanings and concepts. 1. Instruction as to the factual ruling, not the mandatory ruling; 2. Instruction as to the divine Shari'a ruling not the government's mandatory ruling; 3. Instruction as to worldly goods without otherworldly influence; 4. Instruction as to the understanding of the intellect in the discovery of the ruling of Sharia; 5. Instruction as to the manner of the wise in the assumption of its independence in the discovery of the Shari'a ruling and 6. The statement of the previous or later ruling from the proof of the Shari'a ruling (the chain of causes). Except for sharing the lexical meaning, there is no common denominator between these meanings, and each of the Shariah rulings may be instructional according to one meaning and mandatory according to another one.

One of the crimes in Shiite criminal jurisprudence is the crime of "Appearance of drunken non-Muslims in the streets and public places". The crime in question, for the first time has entered the Iranian legal system with the enactment of the Islamic Penal Code in 1392. However, the law is silent on describing the circumstances of the crime. According to the findings of the study, "drunken" or the strong and overt drunkenness is a condition between mild drunkenness and involuntariness. In this case, the perpetrator exhibits drunken behaviors, but he is aware of his behaviors. Also, this crime is committed by only the appearance of non-Muslims in public places and passages; therefore, there is no need to be seen by another. Apart from this, the legislator has chosen the Ta'zir punishment for this crime, contrary to the popular opinion that the punishment is Hadd. This deliberate deviation from the Hadd punishment and the adoption of an unpopular Fatwa in this regard and some other articles in the field of Hadds, is due to the use of the "policy of reducing the implementation of Hadd punishments". The legislature, within the framework of the fourth article of the constitution and the acceptance of the realities of the contemporary world, seeks to reduce the implementation of Hadd punishments.