نشریه مبانی فقهی حقوق اسلامی
سال پانزدهم شماره 2 (پیاپی 30، پاییز و زمستان 1401)

There is no consensus among jurists regarding the ability to work by a free person and whether this ability is considered as real property or not. In this regard, from the point of view of some jurists, the mere ability to work in terms of physical and mental health leads the person not to be considered as insolvency, even if he lacks wealth in terms of tangible property and religious demand. On the other hand, some others do not accept such a view. Because they believe that the ability of a free person to work in a potential way is not considered a property that can be attributed a benefit to its potential physical strength. This view seems to be more acceptable; because the first view considers the ability to work as a property, but, for example, a lawyer who has a lawyer's license, no cases are referred to him for representation, and as a result, he has no income, can this potential ability be considered property? Therefore, this study seeks to identify the best viewpoint in order to implement justice as best as possible, according to the analysis of the above viewpoints in an analytical and descriptive method.

The Book of Common Prayer is the short title of a number of prayer books that are read as sources of prayer in Christian churches, including the Anglican Communion, and have a high position in Christian religions. The original prayer book of the Anglican Communion was published in England in 1549 in the reign of King Edward VI. This book, which is the product of the reformation of the Church of England after breaking the relationship with the Church of Rome, was able to find an important place in this church. During the Reformation, it was first formally compiled by Thomas Cranmer, Archbishop of Canterbury, and evidence of Protestant theology can be seen throughout the book. The unique reception of Christians due to the easy access of the religious rulings and laws included in this book, encourages every Christian to perform ceremonies, prayers and other religious and obligatory matters. This book, along with the Bible, while playing a prominent role, shows the rituals of Christianity in it more clearly. In Islam, religious rites, considering the rich resources evident in it and including all the parts of Islamic jurisprudence which are derived from the Quran and the teachings of the great Prophet of Islam, are recommended to every Muslim as constructive and enlightening guidelines.

Sometimes the disease rises above the individual level and spreads. This epidemic may be irregular and irregular in terms of time (Sporadic) or in a small area such as a city or village (Outbreak), and sometimes its spread extends beyond a region or country (Epidemics) and sometimes the level of its spread becomes global (Pandemic). )). Facing each of these cases requires different health arrangements and requires different legal rules and planning. Dealing with the disease in the national arena requires a model consisting of coordinated, targeted and legitimate measures. This model is formed in paradigmatic structures based on many philosophical, legal and ethical principles and is designed according to the social structure of each society. What is needed to design the model is the explanation of basic rights and values ​​that must be supported, and the other is the explanation of the goal and purpose in carrying out activities and programs and designing processes. All this is in an inherently variable state; Therefore, from the moral and legal point of view, the question is, which human rights has been threatened and endangered by the disease with the characteristics of Covid-19, and what is the justified set of behavior considering the contagiousness and the spread that has occurred or is occurring? It should be done in return to achieve the goals of control and health provision. According to the rule, for such a model, various goals may be considered for the patient and the disease, and accordingly, various behaviors can be envisioned to achieve these goals. Moral and legal norms will determine the limits of behavior. As a result, it may be effective to implement a program or behavior in the face of illness, but it is not justified in legal and moral terms.

In general, permission has a logical and conceptual appearance and can be appeared and shown in different ways. The basis of scholars has always been that if a person gives permission in a matter, he also authorizes the person in the tools and functions of that permission, and these tools of permission are not specified between the permission and the permitted person, but based on reason, this perception is created for the permitted person. There are factors in obligations that explicitly and implicitly limit it. Therefore, the purpose of this study is that permission and its functions can limit the obligation as a component, and this question is also raised as to how and to what extent the limitation is. Via examining a the descriptive-analytical method in jurisprudential and legal texts, permission is used as a component in obligations, and its tools and functions implicitly change the limits of the obligation and cause the increase, decrease, or cancellation of the obligation. Considering the past and present, no significant definition of permission has been seen in jurisprudence and law, and its legal nature has been a point of dispute and has been divided in different ways. In addition to the fact that permission has an explicit effect on the limits of the obligations, it is also implicitly effective and changes the limits of the permitted person’s obligations, and in some cases, in addition to the illegal possession, it will also have the effect of removing the guarantee. Therefore, the functions of permission are not merely limited to permission or permission in a legal event, but also in legal actions, and based on that, the limits of the obligation can be specified and determined, and the effect of possession can be considered useful. However, regarding the negation of the guarantee resulting from it, there are differences in different branches of Islamic jurisprudence (Fiqh) and law.

In consensual divorce, the husband and wife can agree on matters such as Mahriyeh, alimony, dowry and custody of children and then separate. In addition to the custody of the children, they must also agree on the meeting of the children with their parents after the divorce. In the evaluation of feasibility of agreeing on the effects and rulings of marriage dissolution, the main question is whether what is agreed upon is a right or a ruling or both? In fact, there are cases where the ruling or their rightness is doubtful. If the example in question is a ruling, it is not possible to agree against it, but if it is a right, it is possible to agree against it, and if the right is shared by both parties, the prevailing aspect of the ruling or the right must be clarified

One of the controversial issues in marriage is that it is a transaction. According to different viewpoints, there are two theories regarding the marriage contract. Some believe that it is exchangeable and others believe that it is non-exchangeable. Of course, in the meantime, this hypothesis is also raised that it is pseudo-exchangeable. Each of them have cited some evidence. The present article tries to analyze the issue of lien with the nature of marriage. Lien is one of the rights that often arise in exchange transactions and in marriage, it also implies a transaction, and the reason for its creation is the guarantee of receiving the Mahrieh (the obligation, in the form of money or possessions paid by the groom, to the bride at the time of Islamic marriage) for the wife. In the end, this article comes to the conclusion that since there is a requirement for exchange contracts in the marriage contract, each of the parties has the right to refuse to receive compensation from the other party for submitting the exchange but this issue has nothing to do with the spiritual aspect of marriage, and the measures adopted in jurisprudence and legal issues that make it possible to compensate for losses and fatal damages in marital disputes should not be mixed with the aforementioned issues. Therefore, due to the transactional nature of the marriage contract and the exchange of the Mahrieh and also the exchange of compliance with it, the right of lien is proven.

A trick in jurisprudence means to achieve the desired religious legal and legitimate goal; whether the way to reach it is halal or the said way is religiously illegitimate. In the term of Iranian law, it means the ability to use the silence or summary of the law in order to acquire rights for the unjust in ways that are against the nature of the law, and in the term of French law, it means a shrewd act in which, by using the hidden defects of the law, a person seeks to perform a seemingly legal act. These different definitions have caused differences in examples of trickery and of course the solutions to deal with it. The present study is carried out through a descriptive-analytical method and tries to answer questions such as "What is the trick, examples and solutions to deal with it in Imamiya jurisprudence, Iranian and French law?" Examples of trickery in Imamiya jurisprudence are divided into three categories: Examples of real positive and legitimate tricks; examples of real negative and reprehensible tricks; Examples of formal tricks. Examples of tricks in Iranian and French laws can be divided into two parts: examples of tricks that violate formal laws and examples of tricks that violate substantive laws. In Imamiya jurisprudence, there is no countermeasure for permissible tricks, but two solutions are proposed for haram (forbidden) tricks including the moral solution that means piety and the jurisprudential solution which means ruling on being haram (forbidden). The solutions to deal with trickery in Iranian law are the theory of motive or direction; the theory of good faith; the theory of preventing the abuse of the right; the theory of public order; the principle of compliance of the contract with the intention; the base of the arms; the principle of Sad Zaraye (avoiding doing harms), the principle of “Yu’amil al-Mukalaf bi Naqiz Maqsoudah”. Regarding the solutions to deal with trickery in French law, it is possible to refer to the strategies including implementing the laws of the European Union, establishing various institutions to fight trickery and fraud, identifying points covered by the law by digital technologies, determining case and subject laws, determining the punishment in the criminal laws.

In the Islamic legal system, young age is considered one of the factors that mitigate criminal liability, and jurists consider puberty as one of the common conditions of obligation. As a result, a child who has committed a crime which has caused hadd (punishment) is not considered to be deserved to Hudud or Qisas (punishments or retaliation in kind). In the penal regulations of Iran, the lack of criminal liability of minors has been explicitly accepted, but at the same time, in crimes with non-ta’zir punishments, educational and punishment measures have been established for them, which in the last part is against the principle of lack of criminal liability of minors. In this regard, in addition to paying attention to the explanation and matching the opinion of experts in the field of Sharia with the minors penal regulations in the field of converting the hadd of theft to Ta'zir, the effective causes of children's delinquency can be checked and evaluated. Most of the studies and researches that are carried out on the axis of social structure, focus on correcting the behavior and thought of this particular group and analyze the effective factors in the deviation or guidance of this age group. Perhaps the most important reason for the special attention of specialists and experts to this issue is the effective role that children will play in the future structure of society.

Urgency is one of the secondary titles in Shia jurisprudence, because of which the primary ruling is removed, and urgency is sometimes in action and sometimes in abandonment. In other words, urgency refers to being forced to do an act voluntarily with lack of heart satisfaction or complete deprivation of free will. Urgency is the fear of unbearable loss in relation to an act or abandonment. Urgency is a state in which, despite the fact that there is no threat from the outside, a pressure from inside forces him to do something that he is not completely willing to. That is, although he has the will to do it, but this will is not accompanied by inner satisfaction. A person who is forced to sell his house to treat his child is an example of urgency. In this case, he does it against his inner desire and in an emergency, but with will and intention. The jurists have discussed the issue mainly in the book It’amhu va Ishrabhu. The roots of urgency are reluctance, Taghiya, loss and necessity. In this article, we will examine the views of the jurists and the developments of this issue from the past until now using descriptive-analytical methods. The goal is to identify the reasoned and justified point of view among jurists. The result of the article shows the superiority of Ayatollah Khoi's point of view compared to other jurists.

Freedom is one of the most important blessings and one of the most obvious natural and basic human rights, which has been considered among the most controversial issues throughout the centuries and ages. One of the types of freedom is the freedom of the body, according to which a person can do whatever he wants. This type of freedom has been supported for a long time, and even today, international declarations related to human rights and the basic and ordinary laws of different countries support it in various ways. On the other hand, establishing public security and protecting people's privacy and rights in dealing with threats and possible aggression by abnormal persons and violating the rights of others has always been one of the main concerns of the guardians of the judicial justice system. In this regard, the application of prison sentences as a reaction to denying freedom against criminals and lawbreakers is a common method in most countries of the world. The idea that the application of this punishment will reform and socialize the criminal and prevent the repetition of the crime, and on the other hand, it brings intimidation and general deterrence and prevents potential criminals from repeating the crimes, is one of the most important justifications for the prison sentence. Although professors and legal scholars have dealt with the issue of the pathology of prison punishment in various articles, but since this issue is important and it should be considered, different aspects of the issue have not been examined. Therefore, it was felt necessary to deal more with this issue. The main objective of this study, while using the library research method, is to identify the judicial and executive gaps of this punishment and provide suggestions to compensate for the shortcomings and achieve the relevant goals.

The application of a set of non-criminal measures is called crime prevention. In this regard, this application ruins the intention of crime and criminal and in a way, increases the cost of committing a crime and ultimately leads to the potential criminal's withdrawal from committing a crime. One of the crimes that increases during natural disasters and crises is theft. Therefore, in order to deal with it and re-establish social, economic security and peace of mind of the victims, crime prevention measures should be taken into consideration. This article aims to examine and provide preventive measures for the crime of theft in natural disasters and crises. This study is one of applied research in terms of purpose and nature, and its research method is Delphi and qualitative interview method. Furthermore, the data collection tool of this research is a researcher-made questionnaire, and its statistical population is a number of experts, elites, lawyers, etc., who have been evaluated. Situational crime prevention usually manifests itself through breaking one of the links in the chain of causes and events that can be neutralized and causes the crime to occur. The cost of situational prevention is much lower than the criminal punishment of criminals, and reducing the opportunity can be useful in deterring criminals from crime and fear. This kind of prevention includes a wide range of activities and measures to deal with theft. Eliminating ideal situations for the occurrence of crime, predicting safe places to store important and relief items, increasing checkpoints at the entrance and exit of crisis-hit cities, using electronic equipment for control and monitoring in accident-affected areas, etc. are effective during natural disasters and crises in the prevention of theft.

Identifying the right to privacy of individuals as one of the most important human rights is of great importance, and Islam, as the most complete religion, has paid special attention to the necessity of respecting the privacy of individuals, according to its various rulings and orders. Although in Islamic jurisprudence various aspects of privacy have not been dealt with under one title, but it can be claimed that the Islamic Shari'ah has considered aspects of this privacy that can still be discussed in the science of law. Today, with the advance of communication technologies and the expansion of the use of cyberspace, people's privacy is under threat. Therefore, the main question of the article is what are the principles and foundations in jurisprudence and law regarding the protection of people's privacy in cyberspace? In jurisprudence and the legal system of Iran, it has covered strong principles such as the need to respect human dignity, moral values, the rule of dominance, the rule of respect, and avoiding cruelty as common rules for protecting privacy in this field, in order to create the necessary space for growth and flourishing people's talents. In this regard, this research, by presenting the principles of privacy in Islamic jurisprudence and law, along with the territory and examples of privacy violations in cyber space, the strict attention of Sharia law to privacy protection is clarified.

Digital currency is an economic idea derived from the development of modern computer technology, which has provided a new context for investment and money transfer for humans. Since the entry of digital currency into the economy of countries, the supervision of governments in the financial field faces challenges, for this reason some countries deal with this issue with more caution and sensitivity. Considering the entry and activity of digital currency in our country and the doubts and ambiguities that exist on this issue from a jurisprudential point of view, it is necessary for the Islamic Republic of Iran, as a Shia government, to respond to these ambiguities. In this article, it has been tried to explain the nature of digital currency and its buying and selling with the approach of individual jurisprudence. The current article is descriptive and analytical and explains the topic using the library method. From the perspective of individual jurisprudence, the nature of digital currency has been adapted and examined in the structure and framework of the company contract, the Ja'ala contract and Hiyazat Mobahat (Possession of free and ownerless property).

One of the important topics in Islamic jurisprudence is identifying the obligation of Tanjim (belief in the effect of the state of the constellations and the movement of stars in human life and terrestrial events). Most jurists have considered Tanjim as haram, but such a ruling has fundamental problems and it is not the absolute argument for its hurmat (being haram). Not having a correct view of Tanjim leads to the issuance of an incorrect religious ruling. Accordingly, some have considered news of celestial rulings as haram (forbidden) and some as permissible. Those who consider Tanjim as haram, whose main reason is disbelief, have not paid attention to independent and non-independent causes, and this has caused their rulings regarding Tanjim to be insufficiently thorough. This study, with the library method, information analysis and comparison of opinions, looks for the problems in the absolute hurmat of Tanjim and to prove Tanjim as not being haram considering independent and non-independent causes. Because the non-independent reference of events to the heavens does not require any polytheism. the effects of these matters in the ruling of Tanjim has not been considered by researchers. Therefore, first the concept of tanjim is explained and after that, the ruling of news about celestial conditions rulings is examined to finally be able to examine the arguments for its hurmat and permissibility of the news of the celestial rulings in detail, or to reach the correct viewpoint. The findings include these items 1. Definite news of celestial rulings or belief in the influence of the stars is permissible, and this can not lead to disbelief and polytheism. 2. What causes the hurmat of Tanjim is the reference to an independent relation to the heavens, but non-independent reference does not have any corrupt consequences. 3. The arguments of the jurists on the hurmat of Tanjim is not absolutely complete.

Imagining the nature of the relationship between the creator and intellectual phenomenon and how their legal effects are considered among the topics related to intellectual ownership. In this article, while explaining the nature of the right of ownership of intellectual works, different points of view have also been examined. This examination has been done from two legal and jurisprudential perspectives and the explanation of this relationship can be studied in two ways. First, the general examination of the relationship, which is how intellectual ownership is placed under the right section, and the second stage is the examination of the specific legal title that is applied to this relationship. In order to analyze the content, first the word right and ownership, which express the relationship between a person and a person or something, and then the relationship between the creator and intellectual phenomenon have been examined. According to the findings of the study regarding the nature of the relationship between the creator and intellectual phenomenon, based on jurisprudence, the holy lawmaker considers ownership as the right to benefit from the object and its exchange, and the legislator has also in a way endorsed this view.

Mu’atati marriage is one of the challenging and important issues in family jurisprudence. Some jurists, accepting the point that words are not relevant in the fulfillment of demand and acceptance, have claimed the validity of the marriage of mu’atati, but most jurists believe that such a marriage contract (Aqd) is not valid, which was stated by Imam Khomeini. It seems that despite the verses and hadiths, the consensus and the sirah (lifestyle) of Muslims, the view of most jurists is more valid. From the point of view of Imam Khomeini, the requirement of the principle of Mu’atat in every marriage and Iqaa (Those pronouncements which do not require participation of two parties) is that its composition should be turned into the deed. Because the deed, like the word, is a means of valid creation and iqaa. As a result, in this article, the jurisprudential explanation of marriage without a verbal contract (mu’atati) was dealt with from the point of view of Imam Khomeini. For this purpose, the validity of mu’atati marriage has been analyzed by descriptive analytical method and in line with the investigation of this issue, taking into account the views of Imam Khomeini and other jurists.

Today, the arbitration system in commercial affairs, along with the judicial system, is known as the authority for handling claims in most legal systems. Countries have different approaches regarding responsibility. In some countries, judges are not responsible for compensating the damages caused to the parties in an absolute or limited manner. In Iranian law, judges under certain conditions according to Article 171 of the Constitution, if they cause harm to the litigants during the proceedings and the source of the harm is the judge's mistake or negligence, they will not be responsible for compensating the damages. It is obvious that if the cause of the loss is intentional fault combined with the intention or knowledge and awareness of the judge in the loss, the civil liability will be imposed on him without a doubt. All legal systems have confirmed the existence of the contract and the judicial duty of the judge. Failure to perform the duty of arbitration can result in disciplinary, criminal and civil liability, but the legal systems of the world do not agree on the principle of the civil liability of the arbitrator. In the Canadian legal system, a judge enjoys the principle of immunity from civil prosecution in the performance of arbitration duties, just like a government judge, unless he has bad faith or leaves the arbitration without permission. Arbitrations based in Canada are governed primarily by provincial and not federal law. Every Canadian province, except Quebec, has passed legislation to ratify the UNCITRAL Model Law. Additionally, each province has its own laws to regulate domestic trade. In this research, the laws supporting information privacy in Iran and Canada have been compared in a comparative manner, and solutions have been proposed to reduce Iran's gap with global standards in this arena.

Today, as a result of the progress of medical science as a special custom in the diagnosis of living human beings, different views have emerged regarding the common custom and traditional beliefs. The result of this issue is the recognition of human life and death; Because if we believe that death occurs due to the stopping of the heartbeat, it does not include the cases caused by the stopping of brain activity, and the basis and difference of views regarding the change of life and death of humans is not believing in any of these theories. Nevertheless, people with stable plant life conditions need attention and drafting protective laws to protect the rights of these people, and society's perception of whether these people are alive or dead will bring legal and criminal effects and judgments for them. . And it seems that these people are considered living human beings and benefit from all the rights of living human beings. This article aims to examine the jurisprudential solutions regarding plant life and to clear some ambiguities regarding the concept of plant life. For this purpose, in order to avoid different interpretations and grievances, as well as to create supportive-social conditions, we need to formulate laws and enter support organizations to protect the rights of people with vegetative life as best as possible.

Background and purpose:

Economic crime have led to destructive effects and negative economic consequences for the country. Special characteristics, including low visibility, high dark figure, dynamism, wide scope of danger, and special information make detection of these crimes difficult. Thus, secret entrapment operations can be considered as a suitable solution to fight against this type of crimes. However, the lack of recognition of the necessities of and obstacles to the enforcement of secret entrapment operations for economic crimes will cause doubts both in the enforcement or non- enforcement of these operations as well as in the public’s minds, making them unoptimistic towards the nature of such operations. This study attempts to answer the questions that: “what are the main obstacles and necessities of the enforcement of the secret entrapment operations for the economic crime of money laundering?” and “how can these necessities and obstacles be explained?”

This study is descriptive-analytical and has investigated and analyzed the above-mentioned questions using the library and note-taking methods.

While explaining the necessities and obstacles of the enforcement of a secret entrapment operation for the economic crime of money laundering, this study can be successful on the one hand for guiding the police, designers and operators of secret operations in the enforcement of secret entrapment operations, and on the other hand, increase the public's trust in the police and judicial system.