مجله مطالعات فقه و حقوق اسلامی
پیاپی 29 (زمستان 1401)

When there is doubt in the obligation and there is no reason, it is the time to implement the practical principle. What is the verdict of basic rule in case of doubt in the obligation? There is disagreement among fundamentalists. The famous fundamentalists believe in the implementation of the innocence by virtue of reason and by citation of the rule of ugly rule of unspoken punishment.Contrary to the popular opinion some people, by rejecting the popular view, considered the rule of reason as a necessity of caution. Martyr Sadr (RA) called this theory the right of obedience and he believes that as long as the release is not from the legislator, whoever opposes the suspicious duty, deserves the punishment.From these two professions, we have accepted the theory of obedience. But in accepting this theory, we have a nominal understanding and a fundamental disagreement with Martyr Sadr. Because Martyr Sadr considered the issue of the right of obedience as an obligatory task, but we considered the issue of the right of obedience as a duty in the real world according to the practical rational rule.While reviewing criticizing and rejecting the two mentional professions, we have explained and presented arguments and defended our point of view and we have named it finalized of duty or new method.I invite you to read this article to get more accustomed with the new method.

The general public, and especially patients, are regular customers in the field of medicine and treatment; Operators and practitioners in this field, including the medical community and traders in various pharmaceutical items and medical devices, like other people, may commit high-risk behaviors that can injure many individuals and legal entities. The primary and secondary victimology also intends to identify the victims in this field, by providing solutions to provide assistance platforms and improve their situation; It is clear that any action depends on identifying the various spectrums of victims and the types of injuries inflicted on them. The mission of the present study has been to identify the victims of drug trafficking and to explain the support gaps for them. As a result of this descriptive study, it can be said that although many people consider drug trafficking and smuggling of any kind of goods as crimes without a victim, but the government, economy, drug manufacturers, consumers and activists and those in charge of combating drug trafficking They are among the most important victims in this field.

According to the article 25 of the Iranian Criminal Code which was ratified in 2013, the only criterion for determining of the accessory punishments has been encapsulated within the principle punishments of the committed crime. Regarding this fact that the individualization of punishments as a necessity in the criminal justice system, according to the absence of any Sharia obstacle, the fairness of engaging criminological and personal characteristics of the criminal in sentencing, considering the resocialization of the delinquent and the possibility of personality folder usage, it would be possible to use the abovementioned principle in the field of accessory punishments.Through an analytical-critical method, the current research aims at challenging the rules governing on this kind of punishments and has come to this end that within the Iranian law-making system, in most cases, the accessory punishments have not been prescribed in appropriate and practical scopes and reversely, they have been inflexibly predicted in cases which are not necessarily proportionate.

Matrimonial bond in Islam is manifested in the framework of marriage, and because of that, rights and obligations are created for each couple. One of these rights and duties is obedience.In some approaches, one of the factors affecting the passivity of women in the family and their marginalization in social life is the issue of obedience from a jurisprudential point of view and subsequently the employment, education, leaving home, mustahab worships etc with the permission of the husband for possible conflict with a man's right of obedience. Today, women, in order to increase their role and social action, want to adjust masculine norms and structures in the family institution. Today, women taking distance from traditional roles and raising issues such as women's sexual demands, control over the body, as well as the centrality of women's dignity in marital relationships and questioning the permanent unequal of power in the family, men cannot be considered in the field of sex, sole actors and women cannot be considered the passive and aimless actors and covered up the explicit demands of women and the blatant injuries of this arena.Thus, the need to recognize the wife's sexual rights in legal and religious capacities and texts is essential, regardless of the heaviness of traditional patriarchal thought. This study argues that obedience is requirements of absoluteness for contract and such things as the marriage validity of the sexual impotent people and effect of time and place in Ijtihad and the validity of the couple's rational agreements during marriage are some of the capacities that can be partially assist to woman's desire in obedience due to conditions of the contract. The current study tries by using a descriptive-analytical method as well as the library and documentary study method provide a new reading of religious texts from a female perspective and recognize the present contexts and capacities of religious sources while not persisting on conventional male readings.

The temporary elimination of the benefit of the organ due to incurred crime have been put under the topic of Arsh in Islamic Penal Code while no proper jurisprudential study has been undertaken in this case; what is more, the presence of some beliefs such as no liability for non-used benefits paves the way for some prevailing suggestions that there are no liabilities under the topic of Arsh and the blood money for the temporary decline of benefits in religion. This gets more intense in cases which the organ has no evident injury or harm and fracture but the benefits are eliminated in temporary terms. By a full grasp of the necessity of this discussion, this study investigates the issue by referring to library documents by an analytic-critical method. Our study shows that the presence of the right to use body organ is a good reason for the presence of liability of Arsh in cases of temporary decline of organ benefits on the criminal because the subject of liability is the loss of property and right of the others, and on our assumption, the right of using organ benefit has been eliminated; however, the lack of financiality before the act or the before the renting contract is a hinder to the use of liability principle in this assumption; also, due to the impossibility of jurisprudential comparison between the Arsh for permanent decline of benefit with temporary decline of benefits because of the lack of unity of procedure as well as the emergence of the blood money and Arsh for the blood money of harms incurred to organ, and finally, considering the religiosity of blood money and Arsh and the principle of non-liability, it is overwhelmingly challenging to prove the Arsh.

The oath is one of the evidence considered by the legislature for proving claims and is so addrecodified legal laws as if it has a purely positive place in the legal system, both civil and criminal, while the analysis of the jurisprudential and legal teachings shows that such a place cannot be absolute. In order to examine the validity of the oath in proving the claims, a distinction must be made betwssed in een legal and criminal lawsuits on the one hand and the lawsuits by private plaintiff and those without a private plaintiff on the other hand. Accordingly, this descriptive-analytical study investigates the validity of oath in hudud and ta’zir. According the findings of this study, based on the arguments such as the narration "there is no oath in hudud", the fact that hudud are due god and some of them lack private plaintiff, the denial nature of the oath (except in exceptional civil cases), the tendency of legislator to mitigation and tolerance in the issues related to hudud and strictness in proving them hudud, as well as insisting on repentance and not disclosing the crime by execution of hudud and preventing the spread of prostitution and retaining the indecency of crimes subject to hudud, the invalidity of the oath in hudud has been proven. Considering the above-mentioned arguments and the commonalities of hudud and ta'zir in the above aspects, the oath also has no positive place in ta'zir and cannot be considered as a valid reason in proving the crime subject to ta'zir. Obviously, in cases where hudud and ta'zir have a financial aspect in addition to public status, such as robbery, the attached oath can be valid and only prove the financial aspect of the crime.

Crime for profit comes in many forms; Sometimes the benefit of the member is lost forever and sometimes it returns after a while. If the benefit is lost forever, the sentence is not complicated. However, the decision on the sentence of diyat at the beginning of the crime, due to the lack of time, is the subject of controversy under the title of "establishment of diyat". Also, the decision on the ruling on diyat, assuming that the lost interest is returned to the victim after a while, is the subject of controversy, entitled "refund of diyat". The decline of benefits, over time, as well as the return of benefits, over time has different assumptions that challenge the decision to establish and return the ransom; Such as the physician's expert opinion on the return and non-return of the benefit at the very beginning of the crime, or such as how long the benefit has been lost after the crime can have an effective return on the legal decision. Adherence to the Islamic Penal Code indicates the depth of the legal vacuum of diyat in the assumption of return of benefits. The first research step in the present article is to set up a structure with coherent jurisprudential and medical assumptions to evaluate the return ransom and non-return benefits. The next step of the research, which is related to the mentioned structure, is limited to evaluating the opinions of jurisprudence and law experts regarding the establishment and return of diyat. Using descriptive-analytical method, it is proved that the ruling on establishing blood money is directly related to the doctor's expert opinion that the benefit is not returned. Also, the sentence for refunding the blood money will be limited to returning the benefit before the expiration of the term.

Sunni scholars maintain two different perspectives on goodwill: A group has validated it based on the tradition and religious expediency; others have regarded it as illegal according to its lack of religious documentation and its negative consequences. In the present study, the perspective of the proponents of goodwill validation will be approved, based on which receiving goodwill price is free of religious objection. In addition, goodwill is regarded in accordance and consistent with the Landlord and Tenant Relations Law passed in 1997. Instances of acceptance of goodwill price can be in exchange for fame and privilege of a location, or benefit of permanent residence in aforementioned location, or in return for the owner’s waiver in his right to benefit from the ownership, even if the owner of the benefit is not the owner of the object of sale. The result of the induction in the opinions of the Sunni jurists, the Iranian civil law, and legal texts is that there are six types of goodwill in estates and premises. In addition, in all of these types, Sunni jurisprudence and Iranian Civil Law are in accord and consistent with one another, except for the sixth type (traditional goodwill) in some legal texts. This inconsistency, however, seems to be a verbal rather than a substantive difference.

According to repeated reports from official international sources, with the increase in population growth in the contemporary world and the limitation of underground reserves in the not too distant future, the threat of food shortages for future generations is seriously posed. One way out of this dilemma is to use genetic engineering methods to change the genes of plants and organisms called transgenic. The present study, which was organized by descriptive-analytical method, aimed to answer the question, what is the legal ruling of such products from the perspective of jurists? The findings of the study indicate that the ruling on genetic manipulation of food is disputed by jurists. Some jurists consider such changes as a kind of change in the system of creation and according to the rules of repelling possible harm and leaving suspicions; use of it has some problems. Others, considering the rational benefit of this technology and citing the principle of impropriety and the principle of expediency, consider it unimpeded. The authors took a moderate and fair view, believing in the conditional permission to use transgenic products, and they emphasize that the process of production and consumption of such products should be done under the supervision of local experts and no significant damage should be expected.

One of the most important common issues between criminal jurisprudence and Iranian penal law is the issue of blood money. Determining the amount of blood money and Arsh through forensic expertise in the field of the type and amount of crimes and their effects is one of the basic issues related to blood money law.Therefore, relying on advances in medical sciences and technology as a bridge, forensic medicine connects experts and judges in the field of criminology and truth discovery in order to achieve the rights and administrate the justice, and thus be effective in the work of the judiciary and How-ness of judgment and sentencing. However, in this way, we dealt with the challenging issues between law and forensic medicine based on jurisprudential documents and with emphasis on the expertise of forensic physicians, which is influenced by the advances of medical sciences and technology and cultural and social developments in society.The present study, using a descriptive-analytical method to investigate and analyze these challenging cases in three fields of fractures and bone injuries, beauty, injuries and limb injuries, at first, examined the relationship among forensic medicine, law and jurisprudence and then, introduced and analyzed some examples of challenges of determining of the amount of blood money and Arsh. Finally, reviewing the laws of blood money as well as updating the jurisprudential rules based on the requirements of time in order to solve the existing challenges revealed themselves of great necessity

Immigrants' delinquency and the framework of theoretical debates related to it have always been the subject of discussion in various sciences, including law based on the fundamental principles of human rights, international law, and specific components of domestic law. In this article, with a descriptive and analytical view, the approach of criminal response policies towards the crimes of immigrants has been explored with reference to the existing laws, and in the discourse of criminal policy in the field of criminal policy, it is concluded that Iran's criminal laws regarding immigrants have a criminal-oriented and security-oriented approach. While a deep knowledge and understanding of the various aspects of the phenomenon of immigration in the field of criminalization requires the establishment of strategic laws and the determination of pathologically appropriate policies and executive policies with differential policies with regard to the personality component of criminals, the analysis of the situation of immigrants and the attitude towards its social interactions and the consequences of committing a crime while maintaining security It is the territory and protection of the boundaries of the country, which is achieved by developing comprehensive and comprehensive laws in line with human rights attitudes with appropriate responses in coordination with related organizations and institutions in dealing with the delinquency of immigrants.

From the point of view of Islam, as a comprehensive and complete religion, there is a relationship between man and nature. The relationship between man and nature, if he has studied and preserved his existential value and is the trustee of God Almighty, it is a relationship of conquest, which means that all nature is at the disposal of man in order to make reasonable use of it and refrain from wasting and destroying it. Such a right has been identified in the Holy Quran and it has been discussed in various aspects, and environmental principles from the perspective of the beloved Messenger of Islam (PBUH) have a royal quality to the observance of these principles by humans. It is because he is the caliph of God, and the caliph must put the Sunnah and the manners of his successor as his own. It is recommended to use the environment and nature as a divine trust, and man can never have ownership of what he has and consider them his own, and in order to benefit himself as much as possible, he pollutes nature and does any damage to the environment. Therefore, in Islamic sources, such as the Quran, Sunnah, intellect, and numerous jurisprudential rules regarding the right to the environment and nature, we will investigate, research and analyze them in this article so that the rights of future generations are respected.

Reviewing jurists' interpretations, most are in consensus that while seizing property would undoubtedly be subjected to HAAD punishment, it would be the same if the larceny or theft done by breaking into safe custody as one of the punishable conditions. Even though those Fokaha who believe that breaking into safe custody is not a binding condition subjected to HADD punishment, most of them have no critiques to offer. Accordingly, the legislator follows the majority of jurists' point of view, and after validating the legitimacy of seizing property and larceny as a condition subjected to HADD punishment outlined by Article 268 of the Islamic Penal Code 2013, legalizes the breaking into safe custody as a condition subjected to HADD punishment as well. Analyzing the jurists' evidences, the authors of this study arrived at the conclusion, based on some reasons including abolition of ineffective features, that there is no necessity to ratify the breaking into safe custody as a condition subjected to HADD punishment but the former, stealing and seizing one's property, is enough to subject the theft perpetrator to HADD punishment.