مجله مطالعات فقه و حقوق اسلامی
پیاپی 36 (پاییز 1403)

The discrediting of religion, defined as the weakening or undermining of religion caused by external conduct or a Sharia ruling, is among the concepts frequently cited as the basis for contemporary fatwas. It has been so prominent that the prohibition of discrediting religion can be considered a jurisprudential principle. However, the lack of a comprehensive and clear answer to the fundamental question regarding the validity or invalidity of referencing the discrediting of religion in the jurisprudential reasoning process has hindered the recognition of this concept as a fully established jurisprudential principle.This study aims to address the aforementioned question by arguing that the Quranic and narrational obstacles to referencing the discrediting of religion are limited to cases where the source of discrediting is not rooted in temporal and spatial exigencies but rather in deliberate malice. Among the arguments validating the reference to the discrediting of religion, only the rational argument-based on two premises: the rational necessity of preserving the essence of Islam and prioritizing the more important over the less important in cases of conflict between Sharia rulings and the compromised reputation of Islam or Shiism-justifies the suspension or modification of obligatory rulings and permissible matters. Additionally, the conduct of the devout only supports changes in permissible matters.

Righteousness as a queen of the soul, which forcibly leads man to obey God, and Forcing to leave the guilty, has a significant place in Islamic jurisprudence and teachings. This is due to the fact that the holy Shariah considers valid it in the service of important religious and social affairs such as: Mufti, Judge, Friday Imam, and Jamaat Imam and Witness.The jurisprudents of Islamic religions have been discussing and commenting on the nature, positivities and misunderstandings of various jurisprudential periods in their jurisprudential books; however, the problem of its acceptability is not discussed independently and in isolation, although some have been deliberately dispersed.This research examines the above problem in terms of descriptive and documentary analysis, and it has been concluded that the attribute of justice can have different degrees (ranked) that are, in any case, one of those degrees of validity. That is, justice, which, for example, is valid in the Mufti, is not necessary in the witness or Imam of Friday and Imam of the congregation. Adoption of this can facilitate the processing of claims and the issuance of judgments in judicial centers and the selection of individuals.

The third party funding in international arbitration (TPF), is a new and emerging phenomenon. TPF is a new way in which a third-party funder, if his client wins, deserves an agreed amount with his client, but failing, He has no right to refer to the client for the costs incurred.The purpose of this article is to describe and analyze the validity of the Third Party Funding in Arbitration contract in The Legal System of Iran. Accepting the validity of this concept in Iranian law can be disputed due to the lack of regulations and the impact of some concepts such as non-alea rule and aleatory contract. On the other hand, the increasing number of court cases requires more attention to arbitration and its expansion. On the other hand, this requires paying attention to the provision of arbitration costs. It seems that the validity of the Third Party Funding in Arbitration contract in The Legal System of Iran was accepted in the framework of Article 10 of the Civil Law by accepting the custom to recognize the transaction as "Alea". An issue that, in addition to creating a new field of investment, can lead to the development of arbitration and help the judicial system and reduce the increasing number of cases in judicial authorities; And it can strengthens the position of country as the seat of international arbitration.

Stating the claim with certainty is among the conditions in jurisprudence for accepting the action. the certainty of an action is among the most controversial discussions among the jurists. the advocates and opponents provided reasons to justify their opinion. Finally, by virtue of the jurisprudence and accepting the opinion of the proponents for the first in the history of the codes of the civil procedures ratified in 2000, the Iranian legislator considered not filing a lawsuit due to certainty among the obstacles of trial, currently in the Iranian law one of the conditions of filling a lawsuit and substantive trial is certainty. Taking into account that this condition is on the basis of the jurisprudence, thus, to eliminate the legal problems of this issue, besides studying the books regarding jurisprudence, proposing this issue in the Shia jurisprudence and the guarantee of its enforcement predicted in this regard must be investigated comparatively in order to compensate for the gap resulting from the lack of literature concerning the cod of the civil procedure and set the grounds for reformations.

One of the Islamic jurisprudence topics discussed under the issue of alimony and dowry (the customary entitlements of the wife) is the issue of her sexual and non-sexual submissions. The wife’s willful refusal to submit to her husband causes her not to fulfill her marital duties. Readiness to have sexual intercourse is one of the instances of a woman’s submission and in the case of the uncustomary anal submission, although according to famous Fatwas such acts are disapprovingly permitted but the adduced reasons (i.e., the traditions related to rights of husband and the 223rd verse of Surah Al-baghara) for the obligatoriness of such anal submissions for women cannot stand against the reasons adduced by Ibn Abi Yafur’s tradition (which states the unobligatoriness of submitting to such anal requests) and the physical dangers of having such anal intercourses. Accordingly, it appears that the correct Fatwa in such cases is the unobligatoriness of women’s submission to the anal requests of their husbands despite the existence of Fatwas on the obligatoriness of anal submission of women among new and old Islamic canonists.

Article 265 of the civil code is related to, negotiable instruments. However, abstract presumption casts a shadow on negotiable instruments and means the separation of two legal relationships. The legal relationship is the basis for issuing of negotiable instruments and the legal relationship that is formed by the preparation of the instrument, but they are related to each other even though they are separate. This presumption is not specified and recognized in Iranian law, and in this sense, it is a alien concept in domestic law, and for this reason, judges are doubt to refer to this presumption in judicial decisions, but with the desire to refer to Article 265 of the civil code, practically accepted it and made the application of this article in negotiable instruments more rational and put an end to these doubts. Contrary to some harsh claims, regarding the absolute separation of negotiable instruments from basic and civil obligations, and according to the concept of the presumptions and by presenting reasons that can discredit this presumption, we have considered it relative. Therefore, when this presumption can only be raised against a third party in good faith, it seems unnecessary to refer to this presumption, despite the existence of Article 265 of the civil code, in negotiable instruments. Considering this case and the general jurisdiction of the courts and the non-appropriation or cancellation of the general provisions of the civil law by the special provisions of negotiable instruments and the emphasis of the constitution and the acceptance of judicial procedure, the possibility of applying Article 265 of the civil law in negotiable instruments is possible.

The "Law of Leap in Housing Production" was enacted with the aim of providing housing for the low-income class, forming the basis of the "National Housing Movement" program. Under this initiative, applicants are granted government land through two lease contracts: a short-term contract allowing construction rights, and a long-term contract guaranteeing ownership title issuance by the government. Despite the ambitious goals of this law and the multitude of stakeholders involved, past experiences suggest that its implementation will significantly impact individual legal relationships. Disregarding the law's objectives and the contentious nature of its contracts, encroachment on government land under the guise of legal compliance poses challenges that undermine governmental real estate management. Conflicts with existing laws and procedures, excessive government intervention in contracts and private affairs, restrictions on freedom of choice, stringent applicant conditions, and imposed requirements on third parties, all present substantial legal hurdles for the government, applicants, and program participants.

The regulation and legislation of evidentiary rules and methods for proving rights and crimes in jurisprudence, law, and social relations hold special significance. This is to design and establish a well-founded legal order in judicial proceedings that serves social interests, possesses general applicability and clarity, and minimizes the possibility of subjective interpretation. Achieving this objective in lawmaking and its application requires identifying, studying, and analyzing fundamental and overarching legal sources. Considering this necessity, according to the provisions related to the evidence of claims, the judge's knowledge is regarded as one of the admissible types of evidence. However, these provisions exhibit a degree of vagueness and lack of explicitness. Additionally, the existing body of research on this issue does not comprehensively address its legal and legislative ambiguities, necessitating further examination.Accordingly, the main research question is: What is the nature, scope, and criterion of the validity of the judge's personal knowledge in judicial proceedings from the perspective of Islamic jurisprudence, and how has it been addressed within the Iranian legal system? This article, using a descriptive-analytical method and drawing on library resources, internet sources, and computer software, outlines the legal approach to the judge's knowledge and its evidentiary value, highlights the deficiencies and gaps in the relevant legal provisions, and provides a detailed analysis of the nature, scope, and jurisprudential grounds for the validity of the judge's knowledge as a means of proof.

Creating and organizing an unknown concept of industry share in civil law requires investigating quiddity, why and how to accept it. Benefiting from provisions of French law as an inspiration for Iranian company law is heuristic. In a complete definition, industry share is non-financial, Immaterial and gradual. So, its confirmation in the civil law makes it easy to differentiate the company from the common ownership and proof of the secret company, and assigning it to the partners in the articles of association prevents the passive partner from benefiting from the work of the active partner. These features are the basis of assigning it to the company: The bringer of the industry is a real partner, so this share has no role in the capital. So, a special share is assigned to him, so he cooperates with other partners on the basis of equality to achieve common benefit. How to allocate rights to such contributions varies depending on the effect on the realization of the company's activity; The insignificant importance of the industry in the realization of the issue requires the reduction of the contributor's share in profit, loss and debt, and due to the large role in its implementation, such a partner shares equally with the contributors of capital. The rules that specify his share in the remainder of the purification operation. In centers of activity and talent, such as a professional civil company, with the promotion of the industry, the basis of unfair rules is lost: the compensation for the savings from undivided profits or the release of the added value of the assets resulting from the activities of the partners, to them. Company shares are allocated free of charge. A situation that causes the industry to become a partner in capital and benefit from its benefits, even after the dissolution of the company.

On the one hand, the existence of conflicting narrations, and the fact that an insane person has the ability to discriminate and the intention to enjoy himself by committing adultery or sexual immorality, which justifies the proof of the Shari'i obligation, have made the jurists aware of the criminal responsibility of an insane man who has committed the crime of adultery or is the perpetrator of sexual immorality. Be, has caused doubts. Induction in jurisprudential texts indicates the existence of three different views on this issue; So that the later famous people and most of the contemporaries consider the Shari'a limit to be high; it is well-known in the past that the complete limit - i.e. whipping in the case of non-horses and stoning or execution in the case of horses - is fixed. But the third point of view, with no difference between the assumption of horses and non-horses, only considers the limit of the whip to be fixed. This research is based on a descriptive and analytical method, while critically examining the jurisprudential foundations of the views raised and using jurisprudential documents and legal evidence (such as Article 149, Clause "A" of Article 226, Note 2 of Article 234 of the Islamic Civil Code). Has come to the conclusion that the third view has more solid foundations; Therefore, the promise to prove the punishment of whipping alone seems justified.

Despite the existence of explicit Quranic evidence confirming the validity of documents-such as verse 282 of Surah Al-Baqarah-and the acknowledgment by some jurists of the credibility of documents, with some even prioritizing them over other means of proving a claim, the lack of independent probative value of documents in proving lawsuits has become a widely accepted theory in Imami jurisprudence. This jurisprudential theory, which supports this approach, denies the independent function of documents in proving claims, viewing them merely as complementary to other evidentiary means, and rejects their ability to serve as the sole and independent proof in legal disputes.In this study, the aforementioned jurisprudential theory is referred to as the "Complementary Function Theory of Documents in Proving Lawsuits." A historical and analytical examination of juristic perspectives reveals that the assumptions and ingrained mental frameworks of jurists-shaped by the historical and geographical circumstances in which they lived, particularly the absence of a strong central government to regulate transactional relationships-played a significant role in the emergence of this theory. Naturally, in an era where a powerful state can effectively regulate such relationships, these assumptions should no longer influence jurisprudential interpretation and legal reasoning.This article seeks to answer the question: What underlying assumptions have shaped the mindset of jurists to the extent that, despite strong Quranic evidence, the notion of denying the independent validity of documents has gained prominence? By explaining, analyzing, and evaluating the arguments supporting this theory, the study critically examines the role of these assumptions in shaping this jurisprudential perspective.

By nature, humans have always been interested in preserving and preserving the works and objects left by their predecessors and have tried to preserve them in various ways. The existence of laws such as inheritance, criminalization of destruction, smuggling, counterfeiting, etc. in domestic documents, and the provision of international protection for these properties in the form of conventions, treaties, and other related laws, all indicate the attention and concern of human societies to the protection and preservation of these works; works that, in a general and comprehensive sense, can be called "cultural heritage" and defined as all works left by the past that have cultural value. The term culture in the aforementioned definition also contains a general concept and includes all matters that are considered human achievements, whether they have a religious or national background and are the cause of their distinction and superiority over other beings. With such a definition, the concept of cultural heritage is expanded and includes material and spiritual works, such as ancient, historical, religious, religious and national monuments, etc., or intangible assets such as customs, traditions, culture, etc. The present study, using a descriptive-analytical method, has searched and scrutinized legal and criminal laws and presented a logical interpretation of these laws and the views of jurists in this regard, in addition to examining the possibility of a criminal response to violations of cultural heritage and filling the gaps in this field.

In verse 4 of Surah An-Nisa, the Holy Quran refers to a woman's dowry with the word "nihlah," which means gift or grant. In Islam, no specific amount is prescribed for dowry; rather, its determination is left to the mutual agreement of the parties. Any lawful item of value can constitute dowry, whether small or large, tangible goods, money, usufruct, labor, or services. A significant issue regarding dowry is the ruling on indeterminate dowry, which this study examines through a descriptive-analytical approach. The central question is: What is the ruling when the dowry is unspecified or omitted at the time of marriage? Based on Shiite jurisprudential texts and scholars' opinions, in the case of a permanent marriage, the contract remains valid even if the dowry is unspecified. However, in a temporary marriage, the contract is deemed invalid if no dowry is stipulated. The obligation to pay Mahr al-Mithl (equitable dowry), Mahr al-Mut‘ah (compensatory dowry), or the non-entitlement to any dowry varies depending on different circumstances. This study seeks to analyze these aspects using narrations and jurists' opinions.