نشریه مطالعات میان رشته ای فقه
پیاپی 1 (زمستان 1399)

Criminal Mediation in Iranian Law and Imamiyah JurisprudenceAbstractSince the formation of the public justice, the government as the institution responsive to the criminal acts has used formal authoritarian policies. But by the formation of civil society and its effects on criminal law and criminology, this approach has faced with philosophical post-modern criticisms regarding its costs and effectiveness. Meanwhile, realistic managing and economic attitude has resulted in returning to the informal solutions for the disputes while ignoring governing role of the governments and outsourcing some of the duties and authorities all of which characterized by dejudicialization.Adopted approach by the Code of Criminal Procedure 2014 can be considered as the starting point for it to be structured in Iranian criminal law which aside from legal common basics it has also jurisprudential bases.The present research analyzes informal solutions - criminal mediation, in particular - of law as a known and frequently used method and covers its weak points by providing justifications or logical basics. The results of the analyses showed that despite the application of these solutions regarding minor offences (offences of 6, 7, 8 degrees) there is a deep gap to consensual justice to be realized. Nevertheless, the examples of legal reforms are as the indications of policy making for the consensualization of legal procedure and recognition of the basics and logic of informal solutions for solving criminal disputes which can be a starting point for extending the mechanisms of dejudicialization to the offences of higher degrees or non-criminal offences.

In approving the Islamic Penal Code in 2013, our country, based on rich religious sources and Islamic standards, the Qur'an, Sunnah and reason with the approach of "criminal tolerance" approves benevolent and opportunistic institutions such as suspending punishment and new institutions such as impunity, postponement of sentence, alternative Imprisonment in Articles 39, 40 to 57 in the section on light punishments, grades 6, 7 and 8, and according to Articles 87 and 94, all punishments committed by juveniles are adapted and prosecuted institutions, and alternative prosecution and the usefulness of the prosecution system, such as: Suspension and postponement of the prosecution The filing of the case, the cessation of prosecution and mediation in Articles 79 80, 81, 501, 502 and 551 to 558 of the Criminal Procedure Code approved in 1392, amended 1394 provided. It is closely related to many concepts of progressive criminal policy, such as: human dignity, individualization of criminal justice, impunity, etc. In this article, with a descriptive-analytical method, it can be inferred that the examples and scope of tolerance in lenient institutions and facilities and its application in some Sharia punishments and the scope of approaches based on tolerant facilities and facilities such as suspension of prosecution, postponement of prosecution, Mediation, filing a case, etc. in crimes subject to hadd, retaliation punishment, diyat, and especially ta'zir punishments can be enforced by observing the principles and norms of Sharia. Although in theory it requires basic research and study, objectively and practically the need for field research can be cited. It is hoped that jurists especially in universities and headquarters of the judiciary, make this important as a research priority and to implement whatever More and better, the current regulations should be adequately monitored in order to reduce the criminal population and related crime statistics and to ...

Undoubtedly, one of the basic necessities of society is committing to obligations and fulfilling them completely. For this reason, the first principle in contracts is the principle of necessity. However, it sometimes happens that the fulfillment of the obligations arising from the contract becomes impossible due to the events that are beyond the obligator’ control. One example of the impossibility or difficulty of performance is the spread of contagious diseases, a special type of which known as Coronavirus is prevalent across the world. This raises the question as whether this disease can be considered as an excuse for the frustration of the contract (excuse) or the difficulty of its fulfillment (difficulty). If it is the case, what will happen to the contract and what will be the contractors’ duties? In response, it should be said that due to the similarity of the components, this disease can be a true example of the difficulty of contract fulfillment, and regarding its role and impact on the scope of contracts, no general rule can be provided for all cases. Therefore, the study of the impact of the Coronavirus on the contract depends entirely upon the type of contract and the conditions governing it. One of the most important contracts affected by this disease was the lease contracts, especially the lease of commercial places in which with the government's order to temporarily close these places, the status of the existing contracts turned into a serious legal issue. In addition, different issues such as dissolution, modification, and suspension of contract were proposed as the possible solutions for the existing situation.

Theory of severe encounter with the usurper causes the rules of the usurped institution to be considered strict, while in other sources there is no such civil liability. This attitude and the lack of need for harm and causation, has caused most lawyers to analyze the rules governing this institution apart from the general rules of civil liability. In this article, an attempt has been made to invalidate the fegh attitude and pay attention to the structure of the civil law, and to prove the impossibility of this separation. It seems that the difference between dealing with the usurper and other sources of civil liability is not due to a difference in the nature or rules of this institution, but to an imperfect view of the concept of financial guarantee in jurisprudence. Guarantee in jurisprudence means creating an obligation against another, the guarantee of its implementation is crystallized in three longitudinal forms of equal return, retribution and payment of price. In law, however, the concept of civil liability, which is equivalent to the term guarantee, is merely narrow to the third form, the obligation to pay damages. This self-made constraint in the concept has led to the impossibility of applying the rules and pillars of the usurpation institution to the general pillars of the guarantee and its severity

Contracts of guarantee and marriage have special and exceptional features in comparison with other contracts and the issue of the wife's alimony guarantee has a combination of features of both contracts and the annulment or authenticity of this guarantee and its effect is questionable.One of the conditions for the authenticity of guarantee contract is the existence of debt or object of transaction and according to Article 691 of the civil code, the existence of debt cause is sufficient for the authenticity of guarantee.Some lawyers believe that a husband can be guaranteed by wife's future alimony because the marriage contract causes the husband's debt to wife's future alimony.The effect of the guarantee contract in Iran's civil code is the cession of debt but the wife's future alimony has features that distinguish it from other forms of debts. The husband's obligation to alimony is related to other obligations of spouses, such as good relations, common habitation and submission and these obligations are not transferable.Guaranty for the husband on wife's future alimony cannot have the effect of the guarantee contract and the cession of debt and the obligation of husband about alimony will not be wasted but by virtue of the implicit condition and the custom if the husband doesn’t pay alimony, it can be claimed from the guarantor.

The purpose of this paper is to measure the fundamental contradictions of the transferred intention doctrine to the principle of the so-called minimum criminal law. The Camen-Louie Transformation Plan aims to criminalize the transferability of the criminal intention, arguing that criminal misconduct is capable of transferring from The purpose of the victim is incidental and the inadvertent intention of the original offender does not eliminate the unwanted consequences, but the criminal nature of the victim's intent does not preclude the criminal intention of the original purpose and its linkage to the result of a goal or identity error beyond the heart's desire and Mentally committing certain results will suffice to impose the punishment of deliberate victimization.The maximum magnitude of this approach focuses on the development of the scope of intentional crimes and the increase in the level of intervention of actors in the field of criminal policy in describing the rule of law and determining the scope of criminal responses. The findings of this study indicate that the current approach to some of the principles of criminal law Modern, especially liberal discourse Minimizing the scope of criminal law interventions that seeks to limit the powers of the criminal systems in describing the law and the abidance of anti-social behaviors is a clear contradiction. The scale of this conflict is such that it can lead to a weakening of efficiency or neutrality Establishing an optimal response policy for governments in breach of sanctions Laqy and the community as far as the implementation of these two propositions in a penal system unit, conflict and the duality in policy making will face criminal.