پژوهشنامه حقوق اسلامی
پیاپی 30 (پاییز و زمستان 1388)

Swindling is a fraudulent maneuver for seizing another′s property. Appropriating fraudulent means, cheating the victim, and submitting his property are the particular qualities of this crime. The offence of swindling occurs in various ways and the legislator has predicted different punishments in proportion to the gravity of the types of the offence, the person of the perpetrator, and the extent of the damage that this offence may afflict on the society. The present article first deals with a comparative study of various types of principal punishments of swindling in the law of Iran and France. It continues to refer to the similarities and differences between these two legal systems concerning those punishments. The article then discusses and analyzes the accessory and supplementary punishments of this crime in the two systems.

In commercial transactions and relations among people, guaranteeing collection of debt is of high significance. Thus in default of such guarantee, people would not undertake transactions. Finding the ways and mechanisms of creating guarantees towards creditors has always been a great concern for parties to contracts. The article studies the quality of the possibility of the reference of the creditor to various persons towards collecting his debt in the framework of the plurality of liability in paying a single debt. Plurality of liability in its narrower sense means that a person without being under the obligation of a debt is bound to pay to the creditor.

Article 678 of the Civil Code considers removal of the agent one of the ways of termination of agency. A comparison of articles 186 and 954 of the Civil Code leads to the point that agency is a revocable contract. Revocability of this contract is also recognized in Jurisprudential texts. Article 680 of the Civil Code provides that the mere decision of the principal concerning removal is not enough for the termination of agency and the agent should be informed about it. The present article studies the jurisprudential background of the issue, its influence on the relevant articles in the Civil Code, and the foundation and domain of the matter of the law and the matter of the fact of Article 680 in the Civil Code.

one categorization, offences in criminal law are divided into flagrant and non flagrant ones. Procedural laws of Iran concerning flagrant offences have adopted quick legal procedures with the minimum formalities. Substantial laws have also dealt with aggravated punishment and particular criminalization concerning flagrant offences. This criminal institution has certain jurisprudential foundations. In the Shiite jurisprudence, flagrant offences are known by expressions such as overtly committing a sinful conduct, open commission of sins, or public commission of sins. Numerous regulations also affect one having committed these offences such as his failure to benefit from a share of Khums and Zakat, permission of disapproving and dishonoring him, extinction of his justice and invalidation of his testimony. In the criminal procedure approach, easy and quick action in dealing with these offences is taken into account. The essential characteristic of the jurisprudential approach is substantial focus on social responses to the offence, a fact being manifested in severe and serious social responses to the offence, and being deprived of certain social rights. However, the common point in the jurisprudential and legal literature is the provision of the institution of flagrant offences as an independent institution. In both jurisprudential and legal approaches, flagrant offences due to their open commission are recognized as an independent institution with unique characteristics.

The quality of the general nature of the law, and sometimes ambiguity, obscurity, inconsistency, or silence of the law require the necessity of interpretation. The Islamic Penal Code and the criminal procedural code are affected by the previous problems. The present article proceeds a desk study and theoretical study of the articles of these laws. In case of doubt in the intention of the legislator, first we must try to be aware of his real intention. However if we are desperate in our attempt, we should construe the case in favor of the defendant. In establishing the commission of a crime if the arguments for accusation are not sufficient or there is no evidence against the defendant towards his conviction, the principle of innocence is to be followed. Basically doubts in these cases are equal to failure to establish the crime and are definitely in favor of the defendant.

Criminal policy is one of the most significant branches of criminal sciences comprising some important issues and discussions. With the passage of time, the definition of criminal policy and the ideologies governing it has undergone fundamental changes. Thus in every stage, a more perfect and comprehensive definition has been presented in comparison to the previous ones by experts in criminal sciences. The most important issue in criminal policy is choosing one of the two ideologies: repressive or rehabilitative. Managers and decision makers in the field of criminal policy would regulate the ways of dealing with offences and offenders in the society based on one of these ideologies. Explaining the repressive criminal policy, the present article studies the causes of tendency of managers and decision makers of criminal policy towards repressive criminal policy. It also deals with the factors affecting reduction of crimes due to the application of such a policy in the society. Furthermore, referring to the model of criminal policy in Islam, the article criticizes the above mentioned ideologies in a religious framework.

There is a rule for every act in the holy religion of Islam. The issue of surrogacy and affiliation of the surrogate child is among the issues rules of which should be determined. The present article merely touches the conventional rules of the surrogate child in relation to succession and maintenance. One of the questions here is whether the surrogate child shares the estate after the demise of its father along with other heirs. The issue of the inheritance of the frozen embryo is also among the issues worthy of study due to its relation with the succession of surrogate children. Another issue worthy of discussion is whether the embryo in the womb of the surrogate mother is entitled to maintenance. The present article is an attempt to provide good responses to the above questions and other relevant ones based on jurisprudential and legal foundations as well as juridical views of Muslim Jurisprudents and legal doctrines.