مجله مطالعات فقه و حقوق اسلامی
پیاپی 30 (بهار 1402)

Legislation based on Imami jurisprudence has led to the richness and independence of our rights in decades of legislation. There has always been a debate about what criteria should be used to legislate according to jurisprudence And typically the focus has been on who or what is being followed And it is enough to provide general criteria and in practice there is no decisive criterion for this issue. This article discusses only the criminal law and the specific conditions and requirements of the law in this regard Because it is not possible to provide a standard for legislation on all laws with specific conditions and characteristics of each of them Because the law in each case can be very different from the law in other area And you have to think about each case according to its specific requirements And refrained from generalizations and providing a standard for all cases. This article seeks to provide an appropriate solution in the field of criminal law And prevented the entry of personal opinions and ideas into the field of legislation And as far as possible our criminal law Closer to the world criminal law without distancing itself from its originality.

“Etlag-e-Maghami and Kalami” are two principles of interpretive principles of the legislator's will in the realm of unrestricted words meaning on absoluteness and restriction. Although both of these principles are used in the absoluteness and restriction of the legislator when in doubt, but there is a serious difference between these two principles in proving the absoluteness and restriction. It is sometimes observed that in reliance on the “Etlag-e-Maghami and Kalami” to interpret the will of the legislator and the lawgiver in the realm of absoluteness and restriction is confused or neglected. This issue has raised the main question of the research: "What are the criteria for separating the “Etlag-e-Maghami and Kalami” in the interpretation of the will of the legislator?" The necessity of the research, in addition to the applicability of the present research, is that no one has addressed this issue so far. The present article intends to do this with the analytical and citation method of the library and presents 19 criteria of separation for relying on the “Etlag-e-Maghami and Kalami” in the interpretation of the legislator's will.

The need to comply with good faith as a general binding principle that creates obligations for the parties at the stages of concluding, executing or interpreting the contract is not explicitly addressed in Iranian law. Accordingly, there has been disagreement for years regarding the status of this principle. Some jurists, citing Article 220 of the Civil Code, have considered custom to be the equivalent of good faith. Others have equated what is discussed in our regulations titled as knowledge and lack of knowledge as mala fide and bona fide, respectively. Recently, it has been put forward that it is possible to prove the need to observe good faith in application of all rights and duties in all areas including contract law by induction from the rules related to commercial competitions, insurance contracts, mistaken intercourse, referring of uninformed principal in an unauthorized transaction for damages and the correctness of the actions of the dismissed lawyer unaware of the dismissal. However, the need to observe good faith in commercial competitions is not a matter of judicial acts. Furthermore, due to having special characteristics and the need to observe maximum good faith in the insurance contract and due to the lack of common characteristics between the latter and other contracts, its special rules cannot be extended to all other contracts. In addition, the meaning of good faith in the rules governing mistaken intercourse, referring of uninformed principal in an unauthorized transaction, the rectification of official document, and the correctness of the actions of the dismissed lawyer unaware of the dismissal is its supportive aspect and is not related to the intended meaning of good faith in this subject. Therefore, the examples presented for inductive generalization are not conventional and therefore the conditions for relying on induction in this regard are not provided.

Regardless of the acceptance of the importance of the system of proof of litigation by the judge in order to secure the rights and freedoms of the citizens and guarantee the rule of law, the issue of delaying the proceedings means the unreasonable and unusual prolongation of the proceedings of the cases in the judicial system to the point of rendering the sentence ineffective, as a problem. It cannot be denied that, in the meantime, the management of the judge on the proofs of the lawsuit can play a significant role in reducing the mentioned problem. Paying attention to the time of the trial and the conscious management of the judge not only leads to the satisfaction of the litigants, but also causes the mass of people to trust the judicial system and accept the verdict with satisfaction; As a result, the time and management of the proceedings should be such that the litigants, while they benefit from sufficient legal guarantees, do not create continuous tension and erosion and destruction for them. For this reason, it is very important to identify the causes and factors affecting the delay of proceedings and the role of judges in its management. Among the reasons that affect the delay of the proceedings, the role of the judge in managing the evidence to prove the claim is a fundamental and important role that in legal claims, due to the importance of the evidence to prove the claims expressed by the parties, the judge's management can prevent one of the litigants from delaying the proceedings. In this research, which has been carried out with a descriptive-analytical method, the role and function of the judge in the management of the proofs of the lawsuit and its effect on reducing the delay of the proceedings have been explored.

The floating of the element of the criminal result is related to the floating and dynamism of the subject of the crime as well as the criminal behavior, and although the feature of floating is crystallized in the element of the result, in general, the constituent elements of environmental crimes will have the characteristic of floating. The present article, using library sources and descriptive analytical method, by examining the link between the three elements that make up the material element of environmental crimes and focusing on the result element, has reached the achievement that in these crimes, after investigating the behavior of the perpetrator, the elements Criminals are constantly changing; Therefore, the way they are recognized by the relevant environmental authorities and the way of their judicial verification, requires continuous monitoring and multiple evaluation. This attitude provides a dynamic and differential criminal policy that is in line with other measures and policies to protect the environment at a time when crimes against it are committed abundantly by governments and legal and natural persons. It is necessary.

Murder in bed is when a couple sees their wife committing adultery with a stranger and the couple commits the murder of one or both of them. The first principle in jurisprudence and subject law is that the execution of the punishment on another person is by referring to competent courts and by the ruler, but there is an exception in this case, that is, the legislator has given this authority to the husband in the case of murder in bed, if the wife is seen He should kill strangers who are committing adultery without investigating the aspects of the matter and without referring to the ruler. The main reason for this provision is hadiths. It seems from rereading these narrations, it appears that in all cases; Some kind of research is necessary and the actual language of the narrations refers to the need for the couple to refer to the ruler before the execution of the sentence. In addition, this claim is based on ijtihad evidence such as the necessity of establishing limits by the imam or the ruler, the necessity of verifying the reluctance and coercion of the wife or the stranger, the task of proving this issue and presenting four just witnesses, the principle that killing a stranger is not justified, the conditionality of the permission to kill and abuse This ruling also helps you. This research, with a critical view of the famous theory, has proved the necessity of referring to the ruler in the issue of murder in bed through rereading the traditions and evidence of ijtihad.

At first glance, it may seem that many Imami jurists take the possibility of consensus for granted, while this will depend on our accepted definition of consensus and the basis of its authority. With definitions of consensus based on sense, conjecture, and grace, it is usually impossible for that to happen. From the author's point of view, it is impossible for all jurists in all ages with different tastes and intellectual backgrounds to issue fatwas in matters for which there is no valid evidence from verses and hadiths, and in case of such an agreement, a reassuring solution to know the fatwa. Not all jurists will exist. It seems that only if we accept the authority of consensus on the basis of reason, its occurrence will be in the position of proof and proof without hindrance, because in this case it is not necessary to study the opinion of all jurists, but the consent of most jurists or The famous people in the on the subject of consensus and the absence of the opposite promise ensures that the shari'ah agrees with on the subject of consensus. This research tries to examine the possibility of realizing consensus by re-reading the accepted definitions of consensus among Imami jurists and the principles of its authority.

In recent years and with the entrance of some branches of contemporary philosophy (such as epistemology) into religious knowledge, the necessity of applying these new grounds in religious knowledge take notice of many more than ever. Although in Principles of Islamic jurisprudence (usul al-fiqh) as one of religious knowledges, justification of knowledge is considered to some extent, but the aforementioned factors aren't examined in detail or its way of justification has radical differences with common epistemologies. In this paper, after posing essential validity of certainty as a realistic belief and the role of this theory in usul al-fiqh, one of most famous (and perhaps most perfect) Usuli’s knowledge theories concerning the method of obtaining justified belief, called “production theory” which is introduced by martyr sadr, will be put forth, consider and criticize. It seems that despite martyr sadr’s attempts for explaining the method of knowledge justification in usul al-fiqh, still in essential validity of certainty, the subjectivist theme of essential production theory and induction problem is bolder than objectivism. On account of that, paying attention to objectivist explanations and applying its entailments in usul al-fiqh become necessary again and the mechanisms of metaphysical realism concerning divine orders must be revised by Usuli theories.

Allameh Feyz Kashani "Mercy be upon him" is a comprehensive scientist in rational and movable sciences, and this has led to different views towards him. His intellectual and argumentative method, as well as his jurisprudential method, which is sometimes close to the method of the fundamentalists, refrained from calling him a akhbari, and in terms of defending his scientific position, considered him among the fundamentalist scholars. He criticizes the principles of jurisprudence and those who believe in it and considers these principles to be taken from theopponents' books. Fayz has tended to the Akhbari school and has gone from learning and compiling the principles of jurisprudence to severe criticism and opposition to the fundamentalists. This scientist, who in his early youth was an expert in the field of the principles of jurisprudence and wrote the book "Critique of the principles of jurisprudence" in this regard, with the passage of time and the influence of his professor Seyyed Majid Bahrani, and then, Molla Mohammad Amin Astarabadi, in later works He has tended to the Akhbari school, but has always observed moderation and in the jurisprudential method is subject to the exact and valuable school of the late Muqaddas Ardabili. Explain his thought through his language and in the mirror of his works.

The development of societies and the expansion of relationships, with the development of communication tools and ways of transmitting messages, has affected citizenship interactions. Such developments are in addition to the role of law in regulating the relations and disagreements of thinkers about the authenticity of rights and duties. SO; Necessity requires it discussing rights and duties in the field of information. Thus, The current study dealt with the field of information from the perspective of the Qur’an and from the perspective of rights and duties through the method of documentary analysis and a jurisprudential approach to the media, To determine Information in Iranian law is a right or a subject related to a right To define tasks to maintain it OR It's just a matter of mandatory judgment In this case, what are the jurisprudential and legal implications imposed on it? Therefore, regardless of the three dimensions of informants and recipients of information and information in the media, examines the concept of information in general And the research has reached the rules and concepts related to media action by enumerating nine general titles in the verses Then, with explanatory analysis and the conformity of the legal articles with them, show how to resolve potential conflicts between laws and conflict of issues.