پژوهش نامه فقه اجتماعی
پیاپی 23 (پاییز و زمستان 1402)

The principle of the prohibition of double punishment (ne bis in idem) after years of discussion, in the Islamic Penal Code of the Year 1392 returned to Iran's criminal laws. Unlike General Penal Code approved 1352, this principle in the Islamic Penal Code only has been applied in discretionary punishment (punishment imposed by the government) and it does not apply to Shari'a punishments (Islamic punishments). The limitation of applying this principle in the law originates from the point of view of some jurists. But it seems by stating some arguments that resulting from someone jurisprudential rules, can be applied the principle of the prohibition of double punishment (ne bis in idem) about Shari'a punishments. Including these arguments is: Applying some of the jurisprudential rules such as No harm and No hardship, pay attention to the criteria of some rulings, pay attention to special features of some punishments such as compromise on right to demand retaliation or on blood money, create bugs in the interests of the rulings of Hodud

A comparative study of inside money creation with »La-Zarar rule« (rule of the prohibition of detriment)Inside money is a credit that created by commercial banks. Some jurists and Islamic economists disaccord with money creation by commercial banks. The »La-Zarar rule« is one of the important reason that is cited for the prohibition of creating inside money. This article reconsiders inside money creation whether it is analog channel of the »La-Zarar rule« so Inside money creation would be unlawful.The article concludes that proscribing of inside money creation by »La-Zarar rule« necessitates the following preconditions:- The inside creation of money almost leads to inflation- Money is not a »Mesli commodity« (replaceable commodity )- The »La-Zarar rule« precedence over the »Sultanate rule«.(absolute legal power of the owner to exercise dominion or control over their own property)- Money considered a legal contract- The inflation is sudden - the »La-Zarar rule« includes positive and negative commandment of Shariah.

Social takaful and social guarantee are two complementary parts in Islamic political and economic system. On the one hand, the institutions subject to takaful are responsible for providing the needs and solving the problems of their relatives and those around them, and on the other hand, the government, as the last institution subject to takaful, is responsible for providing the remaining needs and solving the problems left on the earth. The issue of this research is whether the Islamic government is responsible for insolvent debtors who are unable to pay their debts or not? According to the examination of the evidences in the Holy Qur'an, the narrations and the governance of the Prophet (PBUH) and the Commander of the Faithful (AS), these evidences, after being collected, were evaluated with the "Ijtihadi method" - as one of the methods of qualitative research - for brokerage and documentation. was taken and categorized. In response to the research question, it was concluded that the principle of social security in the Islamic government is a Muslim matter and a matter of consensus among the parties, but the benefit of people from social security depends on the provision of prerequisites and the absence of obstacles in the debtor or his expenses or the debt. has it. From the results of this research, it can be understood that the current social security system - which treats all debtors equally and bureaucratically - has many differences with the social security system in the view of Islam, and it is necessary to redesign the existing structures and mechanisms in accordance with these teachings.

Islamic rulings and, accordingly, penal rulings are divided into three categories: divine, judicial, and governmental, according to the positions of the innocent when issuing judgments. Divine decrees are fixed and unchangeable decrees that the infallible have expressed while preaching the decree of God Subhuman, and judicial rulings are the rulings that the infallible issued a ruling when resolving enmity and conflict. Such a ruling was specific to this incident. The rulings of the government are the rulings issued by Masoom in the capacity of guardian and considering the interests of the Islamic society. Failure to pay attention to the separation between Shariah rulings from a divine, judicial or governmental point of view can cause a jurist or legislator to deviate in the path of ijtihad or legislation and make some narrations seem contradictory, while this problem will be solved by separating the narrations. The follow-up in the hadith of the penal chapters indicates that part of the hadith is in accordance with the rules of judicial and governmental rulings and is an example of judicial or governmental rulings.

Money market and capital are two important financial institutions in any country that have a close relationship with each other, and these two markets can be liquidated through the money market, changing data and conditions in a figure that is considered liquid money. The support of financial resources equipped in the capital market. Pawn book is valuable as one of the communication links of money and capital market in the conversion of facility assets in the library. However, the conversion of personalized amounts into facilities and future incomes based on investments through the primary market and the secondary market threatens us with a phenomenon called creation money, especially in the banking system, and considering the most famous monetary creations. Religion knows, the answer to the question of whether the mortgage book market is based on debt from the area where it is supposed to grant facilities and investment has jurisprudential validity or not, is the desired location. The answer to this question in an analytical and descriptive way with reference to jurisprudential documents leads us to the conclusion that financial resources and financing are provided through the release of facility asset resources in the secondary market with the support of banking banks and granting these banks to banks. . Other people in Puli and the financial country have been free of problems.

Regardless of the consensus of the jurists regarding the proof of dowry and mahr al-muthl on the man, the payment of "arsh al-bakara" in addition to dowry and mahr al-muthl for the dowry of an immature virgin woman or makra or wati caused by suspicion, has always been the source of disagreement; In such a way that famous jurists consider it necessary to pay Arsh al-Baqarah, but on the other hand, mostly late or contemporaries do not consider it necessary to pay Arash al-Baqarah. This research, using a descriptive and analytical method, tries to align the non-famous point of view with documentation such as the application of traditions, the interference of Arsh al-Baqara in the Mehr al-Mathl in order to validate it in the Mehr al-Mathl in the words of jurists and the custom of the society, the requirement of the principle of innocence and also the lack of legitimate evidence on Arsh al-Baqarah must recognize a valid and defensible promise; After proving the claimant, the approach of the customary legislator in clauses (a) and (c) of Article 664 of Q.M.A. which has been criticized by adopting the popular point of view, which considers the obligation of Arsh al-Baqarah in addition to Mehr al-Mahmal, and as a result, it is suggested to the legislator to remove Arash al-Baqarah

Social justice means the obligation of the state to provide the material resources of life for all people. According this conception, justice is a norm for the political and social institutions, not a virtue of an individual. On the other hand, Islamic thought has not been indifferent to social justice throughout its history. Based on this, rereading the theory of justice in Imamiia political jurisprudence and its comparison with the contemporary cotemporary of social justice is the main issue of this study. Does the implementation of jurisprudence guarantee the realization of social justice in its new conception or not? It will be argued that, it is possible to formulate justice in the political jurisprudence of the Imamiia in two dominant senses. Its first meaning refers to an individual description and considers practical commitment to Sharia as the criterion of justice. Another meaning for the realization of justice in society is the implementation of the social laws of Sharia. This conception is based on the theological view that Islamic rules are based on objective goods and are leading the human to his happiness. Therefore, the fulfillment of Sharia rules is considered the same as the fulfillment of justice. In the end, it will be shown that that justice as an individual virtue and reducing justice to the implementation of Sharia laws are not enough to realize social justice. However, it is possible to recognize the approaches and requirements within jurisprudence to establish the jurisprudential theory of social justice.

According to Article 268 of the Islamic Penal Code one of the conditions for theft punishment (hand amputation) is that it does not occur during a famine. Since the famine is similar to other economic crises, the authors used the descriptive-analytical method to investigate the possibility of extending the theft sentence in the year of famine to theft during other economic crises. The results of this study indicated that if like sunni jurists and some imamia jurists, we consider the criterion for the legislation of this rule (theft sentence in the year of famine) as the emergence of a specific period when theft happens as an act out of desperation, we may not extend it to other crises, but according to some other imamia jurists this rule has the characteristic of divine indulgence and could be extended to other types of crises.

It is stated in the definition of Qassama that it is an oath that is taken to prove the crime or the acquittal of the accused. Qasamah cannot be fulfilled except with Luth. It is for this reason that Luth owes the presumption of suspicion to prove the truth of the plaintiff's claim. Regarding the type of Emirates and the evidence that leads to the realization of Luth. There is no consensus among Imami jurists, therefore, any doubts and doubts about the authenticity of the Emirates that led to Luth in the eyes of any judge, considering the generality of the rule of Dara and the doubt that governs it, the judge cannot implement Qassama, In addition to the above cases, mere suspicion and emirates alone are not enough to enforce the oath, and the sworn oath of the plaintiff is a necessary condition for issuing a verdict mami jurists are of the opinion that in Qassam it is a condition that the arbitrator swears by knowledge. If the juror takes an oath in any way without knowledge. Due to the doubt in the science and generality of the Dar' rule, the material element of the crime is not realized, and it is for this reason that despite the Dar' rule, resorting to oaths in today's world, where the truth of people's words and oaths cannot be relied upon, cannot be justified and implemented. be In this article, we are looking for an answer to this question: can this rule be used as a negation of the argument of Qasama in Luth? .

In his social life, man is bound to be present in various organizations that have chosen managers to manage their affairs and dominate other people. Every manager issues orders and commands to run the organization under his command and obliges his subordinates to accept them. Since, according to the foundations of monotheism, commanding is inherently exclusive to God Almighty, and no one other than Him has the right to command others, and accepting orders from anyone other than Him is also prohibited; Also, since in Islamic governance, all aspects of management and governance must be formed based on Islamic principles, it is necessary to examine the legitimacy of the phenomenon of commanding and being commanded according to these principles. Based on the relationship that each person may have with the organization, at first glance, the legitimacy of commanding and being commanded can be caused by the provincial system, laws and regulations, and the employment contract. In this article, by using the descriptive and analytical method and using the revelation and library sources, each of these funds, its conditions and requirements, as well as the territory of proving legitimacy by it, have been examined.

The expansion of the institution of the bank in the societies and the effects of the legal relations formed in connection with it are so vast that it casts a shadow on all the economic aspects of human life. The preparation of a legal form for investment deposit within the framework of certain contracts led him to establish Article 559 and in the struggle of this thought, the mudarabah contract has taken precedence over other forms, but the legislator, by establishing the law on banking operations without usury, is inclined to the proxy contract. The existing works, by emphasizing the differences between the power of attorney contract and the investment deposit account, have emphasized the uncertainty of the legal relationship that has occurred; The position that is in the order of erasing the problem statement; Because simply calling the legal relationship indefinite without prescribing a special framework and rules will not only solve the problem; On the one hand, it will cause many problems for the banking network, such as what is the form of the relationship between the depositor and the bank and what rules does it follow, and on the other hand, it will cause conflicting opinions in the judicial system; In this article, an attempt has been made to give a logical answer to the problems raised by this group on the legislator's position of the law on banking operations without usury, with the help of the descriptive-analytical method and by adhering to the opinions of the Imami jurists and the general rules of the civil law, and in this way, the legislative theory Based on the power of attorney, knowing the above relationship is proved.

Brain death means permanent and irreversible stopping of all brain functions in such a way that there is no hope of returning to the previous state. In medical science, brain death is absolute death, but in religious jurisprudence it is controversial. Many attempts have been made to explore its sharia ruling, but each researcher has paid attention to one specific part of its evidence. The evolution of the debate and the discovery of new evidences by researchers have been the reasons for such variation in ideas. Now that all the possible evidences have been presented, in the current study, based on the library research method and comprehensive tracking of the evidences, the question: “How is the probative evidences of those who support the certainty of brain death evaluated?” was answered. It was determined that the probative evidence is incomplete in determining brain death, and a so-called brain-dead person cannot be considered dead, but rather the rulings of a living person should be applied to him/her.