نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و هفتم شماره 1 (بهار و تابستان 1403)

Today, standards have been designed to protect people's health in the use of industrial goods; these standards indicate the quality of that product. The inclusion of the standard mark brings confidence to the consumer. However, we witness the sale and purchase of the above-mentioned mark and the damages that are inflicted upon the consumer thereby, or cause losses despite passing through the necessary tests. In this article, which has been conducted in a descriptive and analytical way, the conclusion has been reached that some jurists, regarding the product that has a standard mark inserted on it after undergoing various tests but, during consumption, it has caused loss of life and financial damage to the consumer, based on the lack of fault and non-transgression and excess on the part of the producer, according to lack of warranty maintain non-warrantee (adam-i ḍamān ); and others, based on jurisprudential principles such as Qur'anic verses and hadiths, and the principle of no harm (lāḍarar) of risk taking (ghurar), etc., have absolutely maintained warrantee (ḍamān), whether for the manufacturers of goods with a standard mark that has been inserted after various tests, or for the manufacturers of goods with a fake standard mark. It seems that since in the realization of the ḍamān, aggressiveness of the act or the fault of the perpetrator is not a condition; rather, the standard of ḍamān is merely citing the damage to its perpetrator, the second statement should be stronger.

Privacy is the circle and range in which the personal characteristics of people are protected and kept hidden. With the expansion of communication in the field of health, the issue of patients' image rights in media information has gained special importance. The purpose of this research is the jurisprudential study of the patient's image right in the mass media and to analyze the extent to which this right is observed in the news reports of Islamic Republic of Iran News Network. In this study, using the quantitative content analysis method, all the news reports related to patients in the period of 01/01 1402 until 06/31/1402 were broadcasted on the News Network and were reviewed. The results showed that the image rights of the patients were not respected in these reports and the most violations occurred in the intensive care unit (ICU) and during anesthesia of the patients. Also, the analysis of jurisprudential evidence indicates that it is forbidden to publish pictures of patients without their permission, based on rules such as sovereignty, preservation of honor and dignity, prohibition of surveillance and commitment to secrecy. On the other hand, according to articles 76, 87, and 88 of the general guide of professional ethics for medical professionals, information related to patients, including taking pictures and filming the patient and publishing it at the public level, is subject to the patient's permission. Therefore, the national media should consider it obligatory to obtain their direct permission to publish pictures of the patients.

It has become known among the scholars of jurisprudence and law, based on the jurisprudential and legal advice, that the responsibility of the usurper is an objective responsibility. Responsibility for the objective realization of usurper has been raised in absolute terms, and often according to the famous principle, "The usurper is punished in the most severe conditions", no distinction has been made between assuming the imposition of enormous costs on the usurper or inflicting immaterial losses such as loss of life, honor and psychological harm on the usurper in case of an assignment to reject the same, assumption of the mingling of the property of the usurped with another's property and the possibility of its separation along with the extent of the destruction, the assumption of the mingling of the same usurped property with the equivalent property and between the assumption of conditions that do not have such consequences; and this assignment, is emphasized as irrevocable or inconvertible. In this regard, the question arises as to whether a solution can be found to depart from this application and resort to substitution in the assumption of the existence of the property or not? And if the answer is affirmative, what is its jurisprudential basis? The present study, using a descriptive-analytical method, has concluded that according to the famous view, or perhaps the consensus of jurisprudents on the obligation to reject the absolute in favor of the usurper, this ruling is a primary ruling and its abolition is possible as a secondary ruling based on conditions such as harm (ḍarar), distress and constriction, and desperate necessity. The present research defends and confirms this theory and emphasizes it through processing the theoretical foundations mentioned.

One of the issues raised under the topics of "ijtihād and taqlīd" is the invalidity of an obligatory act in the absence of taqlīd and caution, which almost all Shi'a jurists believe is invalid. The need to address this issue is because a person, after years of acting without imitation and caution, decides to perform actions with imitation of a mujtahid or caution from then on. Now, if his past deeds are invalid, he will suffer a lot of hardship to make up for his past deeds. In this article, in an analytical-descriptive method and citing library sources, the theories and arguments of Shi'a jurists have been criticized, and the basic question has been answered that, "in the case of action without imitation and caution, are all the past actions of the obligee (mukallaf) are considered void and should be made up for?" "And what is the criterion of the validity or invalidity of such a person's action the opinion of the mujtahid during the action or during the recourse?" By examining the evidence, it has been concluded that if such an action is in accordance with the facts or in accordance with the opinion of one of the two mujtahids during the action and during the reference (valid evidence), it is permissible and valid and does not require the compensation of past actions.

Different sins from the view point of the amount of villainy are not equal and have the degrees of severity and weakness. It is possible that other people including natural or legal ones facilitate the preliminaries of committing an unlawful action to perform a crime and provide the base of committing an illegal act that is called “crime assistant” and the committed act is referred to as “crime assistance”. Some jurists consider that the conclusion of the occurrence by mubāshir (perpetrator) (the occurrence of assisted crime) is a condition of title verity of assistance of crime, and from the view point of other jurists, this condition is not considered to be valid. The present research has been performed through descriptive-analytical method and by referring to jurisprudence books and jurists’ opinions along with justification, explanation, reasoning and inference. The finding of the present research includes total opinions of jurists and existing settlement of disputes in “conditionality crime assistance occurrence”. Therefore, considering the severity and weakness of the amount of sin indecency and it’s negative effect on psychological security of society, particularly in the cyberspace, the judicial courts are allowed and authorized, considering two criteria of intention of people and their knowledge and attention on the possibility of the occurrence of crime in the real world and or (internal or external) preventive factors of crime occurrence in the real world, in some cases, to consider the assistance of crime as the subject to crime assistance occurrence and in relation to some other crimes and legal and lawful sins do not consider the occurrence of assisted crime as criterion.

The endowment is one of the traditional economic institutions that have been prevalent among different nations for a long time and according to a more correct point of view, it is not considered as the truth of Shari'a law. In spite of this, in the jurisprudential texts of the Imamiyyah, several conditions have been listed for the validity of this legal act, which will naturally limit its scope. The following article tries to criticize the existing structure and make a new plan by referring to library sources and by using the descriptive-analytical method, in the two fields of jurisprudential foundations and then the corresponding laws. The analysis of the data indicates that the rare generalities governing the endowment demand "freedom of the will of the Endower". The result of these arguments is that the structure of the endowment is exactly similar to the structure of contract by compromise (ṣulḥ), which the holy lawmaker considered the will of both sides of the contract, and made the provisions of its legislation " confirmation of the will of the Endower", just as in the case of ṣulḥ, "confirmation of the compromise of the parties" has been legislated. Finally, based on the innovation of the paper, the lawmaker has confirmed the will of the endower within the scope of its customary structure and has not imposed any special restrictions on the endowment except for the general rules of Shari'a such as the permissibility of the benefit or the legitimacy of the direction and the like.

The exact time of the events is often considered as the origin of the actualization of jurisprudence and legal laws. Ambiguity in the issue of time will lead to different legal disputes. These legal tensions increase when an unknown event is examined in relation to another known event. Famous majority of jurists, referring to the originality of the delay of the event in events that are measured in relation to the components of time, considered the time delay of the unknown event to be fixed and did not accept the inheritance belonging to the known party. As Article 874 of the Civil Code says: "If persons who have an inheritance between them die and the date of death of one of them is known and the other is unknown in terms of precedence and lateness, only the one whose date of death is unknown inherits from the other. But some other jurists considered it possible by weighing the unknown event with another known event, the proceeding of the principle of istiṣḥāb (presumption of continuity) in both known and unknown parties, and accepted the division of the inheritance in half between the parties and other heirs.In this writing, an attempt has been made by researching jurisprudential texts to criticize Article 874 in terms of its scholarly foundations and to investigate other jurisprudential opinions. As a result, after the proceeding of the two istiṣḥāb s and the realization of the conflict and the fall of the two principles, the inheritance belongs to the parties.

Article 391 of the Civil Code has maintained a verdict that if the object of sale turns to be deserving another person, the seller is obliged to return the price, and if the buyer is ignorant, he is also obliged to compensate for the damages. With the increase in the inflation rate, some decided the decrease in the value of the price as damages, which the intrusive seller is obliged to compensate, the opinion of unity of procedure No. 733 and finally, the opinion of unity of procedure No. 811 was issued by the Supreme Court, which is not without problems. Because, the responsibility of the seller to compensate for the damage caused by the decrease in the value of the price is questionable, and on the other hand, ruling No. 811 obliges the seller to pay the price on the day of sale based on the expert's opinion. The approach of this article, is based on the seller's responsibility for the reduction of the price, due to the defect caused to the property of the owner under the warranty rule and the lack of responsibility of the seller regarding the damage caused by the loss of fortune and the possibility of profit (increasing the selling price).

The concern of the lawmaker and the conventional legislator to require the necessary restrictions and conditions in testimony in order to prove claims, indicates the importance of the issue and the determining role of testimony as a proof of claim. Therefore, in addition to the necessary conditions for the witness itself, it is a condition that the testimony is given truthfully and not unjustly or falsely, in the term of testimony. False and untrue testimony, which in the language of jurists is referred to as false testimony, besides being one of the major sins and considered a crime, also has effects that change the nature of the verdict in practice. This research, which was carried out in a descriptive and analytical method, seeks to answer the main question that if the witness's perjury is proven to the judge and the testimony does not meet the necessary conditions, how will it be judged? The findings of the research indicate that if the ruler notices the false testimony of the witnesses after issuing the verdict and before its implementation, the verdict will be violated and the witnesses will only be held criminally responsible, except in the case of evident loss, in which case, the witnesses, in addition to criminal liability, are also guarantors of compensation for damages caused to the defendant. Moreover, not accepting the testimony of witnesses convicted of perjury and punishing them with punishment is one of the effects of false testimony.

Despite the traditional Islamic theory of Dar al-Ḥarb and Dar al-Islam, a third region known as "Dar Al-Muwāda'a" was recognized by Islamic jurists, particularly Shafi'i and Shia scholars. Dar Al-Muwāda'a region is one where non-Muslim nations have entered into a treaty or agreement with Muslim states, resulting in a commitment to cooperation and coexistence. Despite the limited scope of this agreement, the Islamic system recognizes and supports such nations, as long as both parties adhere to their agreed-upon terms. This concept highlights Islam's willingness to coexist with other faiths, despite the traditional division of the world into Dar al-Ḥarb and Dar al-Islam. Islam obligates the Islamic system to support these nations under the agreement of Dar Al-Muwāda'a. This study will employ the historical-analytical method and refer to the Qur'an, Sunni, and Shia jurisprudence to investigate Dar Al-Muwāda'a and its defining characteristics. This research aims to shed light on the conditions, obligations, and mutual rights of nations under the agreement of Dar Al-Muwāda'a, and its implications for contemporary international relations. The objective of this study is to challenge the misconception that Islam views non-Muslim lands as perpetual war zones, seeking domination. Our findings reveal that this assertion does not align with historical and jurisprudential foundations. Our research offers an alternative theory, Dar Al-Muwāhad'a, which acknowledges the existence of nations that have agreed with the Islamic State to coexist and cooperate. This theory provides a more nuanced understanding of Islam's view of other faiths and the potential for peaceful relations.

In many cases where there is a conflict between two requirements and Sharia obligations and the obligee is not able to fulfill both obligations, the identification of the more important obligation depends on comparing the titles of Sharia obligations and the amount of religious attention to them. In this article, it has been tried to provide criteria for determining the importance and prioritization of Sharia requirements based on narrative evidence, and to check the validity of some of the criteria that have been proposed or can be proposed in this context. In this regard, while searching in the words of jurists and scholars of principles and analyzing and criticizing the views, we have said that things such as specifying the priority or lateness, specifying the emphasis and diligence of the Sharia, the number or lack of number of texts, the greatness of the sin or the smallness of the sin can be used as a criterion of priority. Also, the priority of things related to blood and sexual pleasure, the priority of a person's life over body parts, and the priority of humans over animals are acceptable. However, matters such as the priority of body parts over sexual enjoyment, the priority of sexual enjoyment over property, the priority of one's life over others, the priority of human rights over God's rights, or vice versa, cannot be used as criteria for prioritization.

Article 1124 of the Civil Code grants the right to annul a marriage if a defect exists at the time of the contract. The question arises: Does a party have the right to annul a marriage if a defect arises after the contract? How does the possibility or impossibility of sexual intercourse affect this issue? There are three main approaches to this matter: some jurists deny the validity of annulling the contract, while others believe that annulment is valid and some differentiate between annulment before and after sexual intercourse. This research, using a descriptive-analytical method, concludes that in contemporary life, if post-marital defects are incurable and living with the afflicted individual is hazardous, such as incurable insanity, the right to annul the marriage exists. This right to annulment is due to the prevention of irreparable harm to the other party and the preservation of the physical health and mental peace of family members. The stability of marital life depends on a minimum degree of physical and psychological compatibility, and enduring life with an insane person, in addition to being intolerably harmful, also deprives the family of peace. Therefore, continuing life in such circumstances is not reasonable, and the other party should have the right to annul the marriage. However, if the defect is curable, annulment of the marriage is not valid, and in order to preserve the stability of the family and social relations, one should seek treatment.