مجله مطالعات فقه و حقوق اسلامی
پیاپی 32 (پاییز 1402)

According to the second paragraph of the single article of the Penal Law, refusing to help the injured and remove the danger to life (approved 3/5/1354), which shows the general rule in Iranian law and the similar rule in countries that are members of the Roman-Germanic legal system, such as France, contrary to In countries subject to the common law system, such as the United States, it is accepted that persons such as doctors who, according to their duty or law, are obliged to help injured or life-threatening people, if they refuse to perform their duties without being aware of any danger, are liable. have a criminal record; However, according to Article 295 of the Islamic Penal Code approved in 2012, people such as doctors if they avoid doing their legal or contractual duty while they have the ability to perform their legal or contractual duty and a crime occurs due to their omission, they are sentenced to retribution or ransom, as the case may be. be. But in this article, there is no mention of the permission of the doctor to refuse the treatment due to the danger caused by the treatment. Although the meaning of the single article is consistent with some other national laws, such as Article 182 of the Maritime Law, some international regulations, as well as the requirements of some jurisprudence and the implication of reason, it seems that the legislator in Article 295 of the Islamic Penal Code, considering The mentioned condition has been removed in Iranian law; A ruling that can be criticized and is recommended to be added to it while amending the last article.

The important role of waqf (endowment) in religious, moral, cultural, social and economic issues has made it one of the basic jurisprudential issues. The endowment is dividable in different aspects. One of its division is in respect of time. Waqf in terms of time is either absolute or limited. The validity of absolute waqf is accepted by all jurists, but time-bound waqf has not been accepted by majority, although some, not a few, have accepted its validity. The purpose of this article is to examine the question of whether the reasons for the condition of the eternity of waqf can prove this condition, and as a result, the time-bound waqf becomes invalid, or not? After a brief explanation of the temporary and eternal endowment, this study evaluates the reasons for the condition of eternity of endowment in a descriptive-analytical manner and follows the hypothesis that these reasons not only do not limit the validity of the endowment to the eternal endowment. Rather, by reviewing the truth of the endowment and explaining the reasons for the theory of the validity of the temporary endowment, its correctness can be strengthened. Proving the validity of this type of endowment has many fruits that guarantee the necessity of this discussion.

The importance of jurisprudential review of the legitimacy of wasteland detection operations, according to Article 1 of the Executive By-Law of Wastelands Identification Reference Law, and revoking its documents is due to the nature of Anfal (public property) and the need for government supervision over these lands during the period of absence. By comparing the reason for the legitimacy of land assessment operations based on Article 1 of the Executive By-Law of Wastelands Identification Reference Law with the reason for the legitimacy of land assessment operations based on the provisions of Article 1 of the Executive By-Laws of the Nationalization of Forests, it is concluded that the view of the jurists in the position of recognizing lands is in accordance with the provisions of Article 1 of the Executive By-Law of the Wastelands Identification Reference Law, which has not been successful in the field of wastelands due to errors in the text of the law and the legislator's limited and purposeful will. According to the jurists’ diagnostic view on the cultivation of wasteland, these lands, in terms of concept and application, include all lands that have not been cultivated. With the passage of the new law and the repeal of previous laws, land recognition operations are expected to be based on the identification of wastelands, regardless of customary titles and applications, as well as legal title-based definitions.

An abuse of emergency is a situation in which an unfair contract is made to a person in an emergency Is imposed and the distressed person, due to these emergency conditions, accepts an excessive commitment against her/his will and consent or waives his right to the other party. In the law of most civilized countries, contracts based on the abuse of urgency are considered distinct from emergency transactions and are subject to separate provisions. In our country's law, Article 179 of the law, which is adapted from the law of France, deals with this issue and in such cases, for the distressed, the right to amend the contract is considered. But most jurists believe that this article is specific to shipping and maritime affairs and cannot be generalized to all cases of emergency abuse. Therefore, different theories have been expressed, including validity, invalidity, right of termination, non-influence and right of adjustment. As one of the results of this research, it can be said that contract modification theory has advantages that other opinions do not have. This theory can also be confirmed by the basis of the abuse of rights in Iranian law, which is the "no harm rule".

Considerable research has examined the crucial role of behavior as it has a significant contribution to the material dimension of crime. Therefore, it is essential to investigate behavior from the perspectives of psychology and sociology for shedding light on their interrelationships. Moreover, personality is a complex, multi-dimensional feature of individuals which can substantially influence both individual and social behaviors. In fact, most human behaviors are affected by personality. Overall, personality features, as consistent behavioral patterns in behaviors, emotions, and thoughts, help differentiate between individuals. This descriptive-analytic study examined the role of personality in criminal behavior and criminal responsibility. The results indicated that intentional behavior is different from planned behavior and could not be considered as a crime unless it is overtly displayed.

Human advances have led to evolution of different sciences, which has consequently promoted their interrelationships. Genetics is not an exception and has played a significant role in legal issues related to humans, e.g., civil liability of genetic research. As not all new research methods can lead to certain positive results, i.e., they may cause serious harm to humans, it assumes added importance to investigate different genetic principles and methods related to compensation as well as the extent of each party’s tortious and contractual liability. However, the research participant may not have a disease and only decide to voluntarily participate in the study for either benevolent or research purposes. Therefore, it is essential that governments and other responsible bodies provide optimal conditions so that physical and spiritual harms inflicted on participants could be compensated by insurance companies or other funding agencies. Meanwhile, scientific research is necessary for the advancement of science in human societies, and the government and the legislator should provide essential conditions for such research while making sure that the rights of the patients and research participants are observed.

Reflecting on Iranian jurisprudential and legal sources and texts in the area of evidence to prove the case, indicates gender differences in it, which is the place of reflection and analysis in this article. From the point of view of jurisprudence and law, the general rule is based on the fact that women's gender has no effect on their criminal responsibility, but in the matter of proving a crime through evidence of testimony, confession and the judge's knowledge, gender is influential and there are differences between men and women. The legislator has determined the type of evidence at the time of ratification, depending on the gender of a man or a woman in a specific or common crime. In this research, the effect of women's gender on proofs is investigated, and each of the proofs is discussed separately. This research, which was carried out using descriptive and analytical method and using library sources, seeks to find a suitable answer to the question of what effect does gender have on the type or quality of Evidence substantiation? What is obtained from the evidence and documentation indicates that women's gender has an effect on testimony, but it has no effect on the judge's knowledge and confession.

Signing a writing is, in essence, a voluntary creation and one-sided legal act, the effectiveness of which, in addition to the ability of the signatory, requires two conditions, namely, the intention to act and the result. Formally, it should be the exclusive mark of hand rotation, fingerprint or stamp. If the signature is complete, it causes two legal and judicial effects in such a way that, firstly, it involves the apparent will in creating a creative legal act, the subject of the writing such as offer, acceptance, rescission or declarative such as confession, testimony and claim. Secondly, but what is a complete signature and what is the defect in the signature? What is its criterion and basis and what is its sanction? The present article answers each of these questions with a descriptive-analytical method and concludes that the signature in its general meaning may be single or multiple and is made in principle or representationally. In each case, the law, contract or effective declaration specifies that the signature is complete or incomplete. Incomplete signature is not effective, but as the case may be, it can be the cause and reason of civil, contractual and criminal responsibility for its owner.

Eyelid crime is classified as "cutting" and "splitting" under the Islamic Penal Code. Despite the significant differences between the two types, the legislature has allowed equal Diya for each under Articles 590 and 591. Although some studies have been conducted to critique the provisions of Article 590 and researchers have focused their efforts on the issue of eyelid cutting, it appears that investigating the issue of eyelid splitting and the amount of its Diya reflected in Article 591 is essential according to some reflections. In this research, both the structure and basis of Article 591 will be analyzed while referring to valid jurisprudential sources, using a descriptive-analytical approach. The present work demonstrates that the article is confusing, owning to its legislative structure and validity. Both the interpretations of "splitting" and "Diya" are ambiguous. Also, the major foundation of the interpretation of the article is a significant narration that cannot be cited due to different reasons. In addition, the fatwas of the grand marjas affirm that the Diya for eyelid splitting is one of the cases referred to Arsh, rather than being fundamentally constant.

The nature of a contract is constructional and it is set by the human will, making it distinguishable from social and experimental realities that are formed in the real world. the question here is the extent of the connection between contract and reality. Is it a pure function of reality? Furthermore, we’ll explore the existence and continuation of a contract and how it is affected by external realities in Kant’s volitional school of thought. How effective is the role of the human will in the conclusion of a contract? What are the consequences of pure voluntarism? From the point of view of voluntarists, the contract takes priority rather than reality, and the point of origin for contracts is the human will, and socio-experimental reality cannot be considered the basis of a contract. Equity and the La-Haraj rule are not applicable in this school of thought. In addition to maintaining the integrity of the contract and ensuring its survival under any circumstances and in any location, Pure voluntarism exposes the solidity and Jamud present in contracts. In this school of thought, the lifecycle of the contract is a pure function of the will of its contractors and the human willretains its creative power and is not considered an instrumental aspect. According to this school of thought, this is where the benefits of the power of reasoning and human will prove important, and the principle of voluntarism plays an infrastructural role in the conclusion of a contract. The transactional relationship between the parties requires an adjustment of the pure voluntarism school of thought, to account for socio-experimental reality as well. Moderate positivism claims that a contract is influenced by reality, which adjusts the pure voluntarism school of thought in contracts.

Economic sanctions as an economic war have challenged the Islamic system. And the economy is with infidel countries whose political policy is in opposition to the embargoes. The issue at hand is what are the jurisprudential barriers and permissions of these types of agreements and how are they analyzed in dealing with each other? The descriptive-analytical study of this issue shows that the documentation of the permission is strong in the direction of preserving the Islamic system, and it assigns the generality of the upcoming obstacles such as the rule of negation of mustache, negation of the guardianship of infidels and Alaw. Jurisprudential documents, including the rule of urgency, the element of expediency, and maintaining the system, are among the secondary titles of converting the first ruling into the second, which indicate the permissibility and general allocation of obstacles. Also, the rule of repelling corruption from the corrupt, the issue of the conflict between the harmful and the permissibility of taking help from the infidels in war, along with the rule of reason and the construction of reason, indicate the violation of covenants, and it allows the Islamic ruler in terms of government decrees or in the field of "al-Faragh region" to initiate its conclusion.

Clarification in divorce is one of the conditions mentioned by famous Imami jurists regarding divorce, i.e. if divorce has been read with sarcastic words that are not specific to divorce, divorce will not take place and such a divorce is invalid, and it is believed that the reason for this is the hadiths and consensus of the sect. On the other hand, another group of jurists including Faiz Kashani consider the occurrence of divorce with non-specific words to be correct by referring to the hadiths and believe that whoever intends to divorce can do so with any words. The present research analyzes and reviews famous evidences by referring to jurisprudential sources and the  jurists’ opinions, and by preferring the non-famous point of view, it comes to the conclusion that the opinion of the non-famous group is more correct, because it seems that it does not matter how divorce is expressed, but what it matters is the intention of divorce, and if the couple expresses the intention of divorce with indirect and sarcastic words like I hate you, or the authority is in your hands, etc., while having the intention of divorce, the divorce will take place.

Examining Islamic Jihad issues in resorting to military force and coercive actions against the enemy and the way to treat civilians and non-combatant people indicates that the humanitarian provisions of Islam are based on the fundamental principles that provide the necessary grounds for the implementation of Jihad rules in different conflict situations. They provide Islam. Justice, the right to life and respect for human dignity are among the foundations of humanitarian rights in Islam, each of which has a special place and importance in Jihad in the cause of Allah. Quranic evidence, narration, reason, consensus and Muslim jurisprudence rules have prohibited the production and use of weapons of mass destruction; Therefore, in this article, while examining the concept and examples of weapons of mass destruction, topics such as justice, the right to life, human dignity, which are discussed as the bases for not allowing the use of weapons of mass destruction, to examine the verses and traditions, reason and consensus, which are among the most important evidences for issuing verdicts. Regarding topics such as weapons of mass destruction; Paid. In this research, the prohibition of the production and use of weapons of mass destruction in Islamic jurisprudence has been analyzed, and in the books of the jurists of the previous examples, it can be revised and applied to the current examples; Also, the prohibition of using these weapons in normal conditions is based on customary rules.

In the issue of immigrants, the existing laws are mainly influenced by public opinion, political discussions, monitoring and security feedback regarding the arrangement of the responsible institutions. In this article, with a descriptive and analytical view, the approach of the legal system in the social prevention of immigrants' delinquency is discussed with reference to international and domestic laws, the principles of prevention and the attitude of the host society, and in the policy discourse in the country, considering the existing challenges, this result It can be said that the current laws are mainly security-oriented, discriminatory and ignoring a large number of immigrants who live in the country illegally, and unfortunately, the reflection of public opinion is also in the continuation of such an attitude. While in this area, the establishment of strategic laws and It is necessary to draw a far-reaching policy from the human dimension and human rights and an in-depth, non-discrimination and threat-oriented approach in organizing the affairs of immigrants, both legal and illegal, in the social sphere, with a differentiated, coherent and codified policy in order to attach the issues Incident and new, taking into account the alien component, but being human, both in the legislation and in the use of preventive tools, with the coordination of related institutions and organizations, to enlighten the minds of the society, to prevent the decision making, and to protect the country's security, to succeed in reducing and eradicating the delinquency of immigrants in P Achieved social recognition.