مجله مطالعات فقه و حقوق اسلامی
پیاپی 31 (تابستان 1402)

Bankruptcy judgment has the greatest effect on the trader's transactions before and after the date of stop of payment, Article 423 of the Commercial Code adopted in 1311 has annulled the legal actions of the trader in case of reduction or restriction of his property. The basis for the invalidity of these legal acts after the date of cessation is the prohibition of the trader from making a transaction with the intention of evading the payment of creditors' debts, which is rooted in public order. According to the provisions of the Bankruptcy Law in Articles 418, 423, and 557 of the Commercial Code and the legal doctrine and jurisprudence, it can be found that some transactions of the trader after the date of cessation are relatively void; That is, the transaction between the two parties is valid; But it cannot be relied on against creditors and can be revoked. Others, as mentioned in Article 557 of the Commercial Code, are absolutely invalid. In this article, while explaining the rules for recognizing relative and absolute invalidity in the transactions of a bankrupt trader and the different dimensions of these rules, the consequences of each of these institutions in relation to the trader with the parties to the transaction and their relationship with creditors are tried. In particular, third parties should be investigated during and after the liquidation, and the effect of the invalidity of the transactions of the bankrupt trader shall be considered limited to both parties to the contract and the third party shall be protected from the adverse effects of these transactions in good faith.

The separation of negotiable instruments from the civil obligation is the separation between two legal relationships, which is called abstract presumption. The most important aspects of this presumption: indebtedness and lack of attention to flaws in the private relations of the parties, which is called relative presumption. Although the commercial law of Iran has not explicitly accepted the fact that negotiable instruments are abstract, it can be inferred from the spirit of some laws, but some side examples cannot be considered absolute in the absence of the ability to invoke flaws against a third party, because exceptionally, it is assumed by the legislator to protect the third party. In order to achieve a logical attitude, the relativity of the abstract presumption should be examined according to the concept of the presumption and the principle of uncertainty of the presumptions and their opposability from the perspective of jurists, law, and judicial procedure. The judicial procedure has accepted this relativity, unlike some harsh attitudes in the field of turning civil obligation into commercial obligation.

One of the most important Islamic duties that has been strongly emphasized in narrated sources is the duty of "commanding the good and forbidding the evil." The eighth principle of the constitution has three levels for this social responsibility: commanding the good of the people by the people, commanding the good of the people by the government, and commanding the good of the government by the people. In jurisprudential texts, only the first level has been addressed and the importance of other levels and the quality of their implementation have been neglected. Since the third level of enjoining the good and forbidding evil is more important and is more sensitive than the other two levels and no research has been done on the quality of its implementation, this research was conducted to fill this scientific and research gap. In this research, with a descriptive-analytical method, we have reached the conclusion that in order to achieve the third level of enjoining the good and forbidding the evil, it is necessary to implement four steps. Those four steps are in order of priority: 1-   Advice and benevolence 2- Criticism and protest 3 - Reporting and disclosure 4 - Coercive action through legal channels and avoiding disturbing public order and security.

Attending the graves of the dead and, in other words, the dead, both righteous and corrupt, is one of the most controversial issues in Islamic jurisprudence. In such a way that different Islamic sects are sometimes placed together and the Imamiyyah and Sunni jurists have adopted a single opinion in line with each other; Although a part of the public has separated their way from other co-religionists here, they have moved towards the sanctity of the mentioned act and regarding the pilgrim as an idolater and an infidel. Of course, this does not mean that the fatwas of the jurists are dualistic, but the result of the detailed research and search in the jurisprudential and even theological sources of Imami and public thinkers shows the existence of four different theories in the debate. The writers, using descriptive-analytical methods and using library sources, think that the famous Imami and public jurists are right; it means that visiting the graves is permissible and desirable, but as long as there are no unnecessary actions and it is enough to attend the graves, read the Qur'an and supplication, and ask for forgiveness for the dead.

The present study has been carried out aiming to investigate the jurisprudence and legal aspects of suicide in the Iranian criminal law system, in a descriptive and analytical method. The jurists have considered the criteria for the sanctity of suicide. Despite the commonalities they have, in some cases, they have disagreed. In this study, the views of jurists in the field of suicide were presented using written sources and then analyzed. Based on the distinction between intentional and unintentional suicide, their criteria and criminal responsibility are different. Just as premeditated murder is committed in the form of stewardship and causation, in suicide, if it is committed in the form of stewardship, it is prohibited by the Shari'a, and if it is committed in the form of causation, suicide is unintentional and the sentences of intentional suicide are not carried on it. Based on this distinction, the law of punishment can differentiate between intentional and unintentional suicide and set separate rules for unintentional suicide.

The transportation contract is a contract that is concluded between the carrier and the sender. This article tries to answer the question, what is the status of the transport contract in the case that the goods are transported through smuggling? This research, which was carried out in a descriptive-analytical way, indicates that according to the agreement or non-agreement on a matter that is an example of smuggling, the transport contract will be valid or invalid; In addition to the fact that the transport operator is not responsible for the validity or invalidity of the transport contract, and in the situation where the operator has attempted to transport contraband, the rules related to security deposit and guarantee must be taken into account. In this regard, the issue has been raised in the form of five assumptions in order to accurately identify the situation of all cases; in the end, the main finding of the research is that the operator's support is essentially a guarantee.

Considering its nature, Islamic banking requires a special type of monitoring methods in order to adapt the activities of the banking system to the principles and laws of Sharia. In this research, it has been tried to justify the necessity of sharia supervision in the banking system with jurisprudential bases such as the rule of of gharar, prohibition of usury, harm, preservation of public interests, and the lack of innocence of the rulers and numerous legal documents such as the two, four and seventy-first principles of the constitutional law. The basic as well as the existential philosophy of approving the law on banking operations without usury and other related regulations, the necessity of Sharia supervision in this field should be emphasized and examined. International Islamic financial institutions have presented solutions for the implementation of the mentioned institution in the banking system of Islamic countries, which have been implemented in most of the countries with Islamic banking structure. In Iran, during the last few years, we have witnessed the relative stabilization of a position with supervisory, executive and legislative dignity for the Sharia inspector; but the country's banking system is still at the beginning of the path until it is implemented and the results of Sharia supervision are realized. Removing obstacles and providing solutions for the implementation of Sharia supervision requires examining the jurisprudential foundations, explaining the solutions and training for its implementation, which is also the purpose of this research. In this research, the above issue has been discussed and investigated by relying on the descriptive-analytical method from the point of view of legal jurisprudence.

One of the emerging topics is the discussion of transgenic substances and their rulings in jurisprudence, which are directly related to the health of married couples. Alimony is one of the Muslim rights of a woman over a man in the case of submissiveness and non-marriage of the woman. One of the examples of alimony is the discussion of nutrition and food, which is recommended in verses and traditions to eat healthily. Genetically modified materials as one of the sources of food preparation in the current era, considering that in jurisprudence, it is faced with two views in favor and against, and each view has its own evidence, has a direct relationship with the health of couples' relationships in the discussion of food and nutrition. The present study first examined the nature of transgenic materials, jurisprudential views, and their evidence in this field, and then, by choosing Mukhtar's point of view, it discussed the role of these materials in the health of couples' relationships from the point of view of jurisprudence with a descriptive and analytical method. The results obtained are that, firstly, Mukhtar's point of view in this field is the point of view of the solution of transgenic materials, because the arguments of the opponents are facing serious challenges; And secondly, according to Mokhtar's point of view, the use of transgenic materials for nutrition and sustenance is permissible and there is no problem.

Since the beginning of the formation of the principles of jurisprudence, the conflict of evidence has been discussed and paid attention to due to its great application and efficiency in the process of deriving rulings and interpreting Islamic regulations, responding to incidents and solving new problems. Among other things, in the current social situation, economic contracts affected by severe economic fluctuations caused by various causes and factors have caused difficulties for the contracting parties in the implementation of the contract and caused one party severe hardship and embarrassment, and on the other hand, non-implementation of the contract also caused The other side is harmed and in this case, a harmless and embarrassing conflict occurs. Therefore, the present article with a descriptive-analytical method, while explaining the basics of these two rules, has reached these results that what is beyond human capacity and in which there is narrowness, hardship, difficulty, and difficulty is the ruling, both obligatory and situational. It is ruled out. On the other hand, jurists and lawyers should consider difficult conditions in contracts and include them in the text of the contract, pay special attention to the conditions of force majeure, and predict what is likely to happen and may affect contractual relations. . Also, until the adoption of a law on the acceptance of the "change of circumstances" theory, the honorable community of judges can issue a verdict based on the following evidence using authentic Islamic sources or authentic fatwas.

In the laws of Iran and Canada, any assault on the body, property, communications with their types and types, information and secrets, dignity and reputation, privacy and privacy, opinions and thoughts, writing, by natural and legal persons is prohibited and violation of privacy. It is considered private. In Iranian laws, cases of privacy violations are widely criminalized and both disciplinary and criminal punishments are considered for it; Also, the victim is entitled to compensation due to civil liability. The methods of compensation for the violation of privacy in Iranian law have been widely seen; Although it is mostly aimed at compensating the material damage of individuals. In any case, methods including compensation for material and moral damage, restoration of dignity, the obligation to apologize as compensation for the loss of privacy are foreseen. In the Canadian legal system, compensations such as compensation, ransom, apology and other cases of compensation are available without being formulated in specific laws and limited to specific criteria, with the opinion of the hearing authority. For example, the Human Rights Court or any of the normal courts can consider the best and most complete compensation for the victim depending on the specific case and conditions of each case. In this article, we analyze the methods of compensation for the loss of privacy in Iranian and Canadian laws using a descriptive analytical method.

Today, virtual social networks are the most powerful online media; To the extent that these networks facilitate the free flow of information to normal users; The circulation of sabotage information and new ways of committing crime has also been facilitated from this context. Any confrontation with crimes related to social networks requires the application of prudent and codified criminal policy. The anonymity of users, the difficulty of accessing professional criminals in this space due to the uncontrollability of non-native social networks and the severe vulnerability of the target, especially children, have doubled the need for growing prevention of crimes committed in this space. In this research, descriptively and analytically, an attempt has been made to analyze the concept in the field of crime prevention by describing the theories of criminological thinkers. The sources collected in this research are library method which has been finalized by using books, articles and related domestic and foreign scientific reports and researches in this field. Findings indicate that the use of community-based institutions, strengthening self-control mechanisms, individual-centered, family-oriented, school-based support programs and utilizing economic, cultural and social capacities to create the necessary conditions to prevent the tendency Children and adolescents are important to delinquency.On the other hand, jurisprudential teachings indicate that children and adolescents are among the most vulnerable sections of society physically, mentally and socially. Unfortunately, due to the limitations of researchers in accessing court cases, no case is properly investigated for the various dimensions of these crimes, and the scope of these crimes and delinquencies is increasing every day.Therefore, creating intelligent and integrated systems for accurate recording of statistics and information related to crimes in this field and providing researchers with access to this data, strengthening local social networks with a spark of creativity and initiative, paying special attention to promoting media literacy by providing And the provision of hardware and software facilities for educating adolescents, young people and their parents, as practical solutions to get out of this situation is suggested.The synergy of the set of governance pillars with the participation of citizens and civil society organizations in this dangerous path is an undeniable necessity.