فصلنامه پژوهش های فقه و حقوق اسلامی
سال هفتم شماره 3 (پیاپی 25، پاییز 1390)

Determination of the parties is the base of transactions and because determination which is internal action to be active in law should include external aspect.In other words, real determination is the basic element in transactions. Does the basic element of transactions relate to internal or external determination of the parties? In this essay, the writers want to express two theories of internal and external determination and represent the modest theory in Islamic lawful system.

According to Islamic punishment law, Quran and prophetic religion, murder resulted to punishment of retaliation.The mentioned punishment regards as penalties which have private aspect. Right owners in Islamic religion, contrary to previous religion, can select one of these cases (retaliation or forgiveness). On this basis Islamic legislators in Hodood and Retaliation Act (1361) in article 54 have expressly recognized this right for the sacrifical parents. It’s the law that after victim’s death this right transfers to the sacrificial parents. Nevertheless, legislator, contrary to the mentioned article, grants the forgiveness right to victim with ratification of article 268 of Islamic punishment law. But this article is not correct and legal according to the analysis in this essay.However, in spite of the present objections, the drafters proposed Islamic punishment code in article 18 and 315. This code extends the concept of forgiveness and refers to blood-money. It also indicates that the sacrificial parents can’t request the blood-money but in article 268, they can request it.

One of the most utilizations of inference tools of Orders in Islamic jurisprudence and law is to obtain the indication of word against generalization by wisdom rudiments. The current article reviews different aspects of that issue. Accordingly, the principal theories about the status of absolute words are reviewed and criticized. Between words of past and last people, five prefaces is obtained such as the whole aspiration form, asymmetry against encumbrance, lack of encumbrance value in terms of addressee, possibility of generalization and encumbrance and lack of refusal. Then each of mentioned prefaces was discussed according to the purpose of that preface, reliability of priority and the way of obtaining that.Finally by reviewing the theories and opinions of principles and their documentary proofs, it was ascertained that absolute indication is rational. So common symmetry or wisdom has just one condition, that is the speaker be in the form of expressing all his/her purpose and for the obtaining this preface, the use of rational principle of original expression is applicable.

Shiite jurisprudence does not prohibited the punishment of child in general. But due to certain circumstances, the ban is lifted. However, the preliminary sentence of child punishment is sanctity, only has some exceptions in specific circumstances. Exception of child punishment is under two general terms including discretionary correction and correction. Although most of the Islamic scholars did not separate this two general terms in the corporal punishment of children, it seems necessary in some cases to separate these two groups, because the cases, the conditions and many accessories of this two general terms are different and the separation of these two terms hasn’t any significant practical results. Moreover, since Islamic scholars haven’t argued within the issue, many of the terms and conditions including corporal punishment of children, the quality, level and the persons who have the right of punishment have not been investigated in the texts of jurisprudence.

According to article 655 of Islamic punishment code which appoints" the punishment for attempt to the above – mentioned thefts in previous articles is up to 5 years imprisonment and up to 74 lashesh.", Attempt to thefts of the previous articles is known by super – crime article. Although the expression of previous articles ‘seemingly includes all the thefts mentioned in article 655 of Islamic punishment code but procedure unity vote issued by general board of supreme court of the country by number and date of 635 and 8/4/1378, respectively was issued in such a way that many of jurists by deduction of it, knew just attempt to thefts mentioned in articles 651 through 654 of that code as crime.In this paper, the writers by studying judicial opinions and suitable scientific interpretation seek to consider attempt to all thefts mentioned in Islamic punishment code including theft with prescribed punishment except theft which has come after the article 655 of Islamic punishment code as crime.

To study the legitimacy of children’s worship is one of the important question in judicial discussions and the supreme jurists declared different opinions about it. Since the children are like a fertile land which correct trainings cause their felicity and incorrect cultivations cause their misfortune, thus it is necessary that the parents with respect to religious teachings be attentive to their training.One of religious teaching for the children is to introduce and incite them to worship (especially to pray). Evidently the answer to this question whether these worships are legitimate or not has effective influence in motivation of the child to perform worships. Also it is effective in showing the proper judicial feature of this problem. In this article we have proved that the children’s prayers are legal by indicating some reasons. Hence, the necessity of the worship has been removed of the children until the maturity age but its legitimacy has remained.

When human being was bron, desire for perfection was born with him. Due to neglect of prophet's teachings some people sought their perfection in achieving material things and it resulted in profiteering from each other. Inevitably some of them became oppressor and the others oppressed, then conflict between them began. Sometimes the oppressors suppose they are right and the oppressed are wrong. But continuous and ceaseless efforts of God ministers – the prophets – resulted in training eminent and outstanding humans who help people in their relations with God and expanding Justice. One of these remarkable men is the offspring of kaaba and our prophet's favorite, commader of the faithful Ali Ibn Abitaleb (PBUH), all whose life's dimensions are full of miraculous and extraordinary behaviours. Doubtlessly, criminal discussions are one of important resources in Islamic Jurisprudence. Criminal section of Islamic Jurisprudence discusses Four discussions as followings; the prescribed punishments, crimes, Blood money, and chastisement for offences. Collecting views relating to these discussions can be a good scientific wealth for authorities on Divine law.Islamic law legal views of commander of the faithful, Ali Ibn Abitaleb, is unique and miraculous; That is because he uses Quran and Tradition and also benefits from the fact that our prophet (PBOH) has prayed for him that God guide her heart for sound judgement; morever he has had a close companionship with our prophet from his childhood till he passed away; and finally, his intelligence, smartness, exactness, and his deep knowledge is unique and miraculous. Our Prophet has said "Ali is the best of you in Judgement". The above mentioned reasons show that he was better than Abubakr Omar and Osman in all cases and particularly in Judgement; that they sought Ali's advice in their affairs confirms this Fact. Omar always said "if there was not Ali, Omar died". Because of these reasons the results of these views are permanent and perpetual.

Recognizing the lawful status of directors in companies is important for determining of director’s choices of business companies. This importance not only affects on theoretical aspect but also has effect on third persons of transaction parties and companies. Lawyers and jurists always discuss about this issue. Based on an opinion, directors of business company are lawyers of that company but there is another opinion which says that company directors are deputy of that company and finally some jurists know directors as an element of company elements.In this article, the author analyses these opinions by referring to article 17,118,135,588 and etc and comparing them in Iran and England jurisprudence and law.