فهرست مطالب

حقوق اسلامی - پیاپی 25 (تابستان 1389)
  • پیاپی 25 (تابستان 1389)
  • 212 صفحه، بهای روی جلد: 25,000ريال
  • تاریخ انتشار: 1389/05/19
  • تعداد عناوین: 7
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  • Esmail Nematollahi Page 7
    Some legalists have divided the notion of commitment into debt and responsibility, and thought that the two might be separated. Reflection upon the legal concept of commitment and the juridical concept of debt shows that the two concepts are deeply different in nature; the former is an obligatory rule while the latter is a provisional one. Furthermore, in some cases, two rules may be agreed, or a separation between the two may occur.The present article is to study that whether commitment is,juridically speaking, a simple point or a compound one; and in the latter case, out of which elements it has been combined. Dividing the commitment into two provisional elements and two obligatory ones, the present article tries to analyze the concept of commitment and its elements in the form of the traditional and familiar terms of provision and obligation or provisional and obligatory rules, and study the effectsof the two rules in brief.
    Keywords: commitment, debt, provisional rule, obligatory rule, Shii jurisprudence
  • Ahmad Hajidehabadi, Ruhollah Akrami Sarab Page 35
    Just investigation in penal affairs depends upon observance of the rights of parties to suit to fulfill their justified claims. Because of the critical position of the accused in the above process, adjudication systems have attached particular importance to his rights. One of the rights of the accused is his right to keep silence about the accusations; in other words,the legal authorities are not entitled to force him to provide replies, or interpret his avoidance of providing replies against him. More than 1000 years ago, when in adjudication systems such a right had not been recognized for the accused at all, relying on the divine teachings of Islam,the penal jurisprudence of Islam has explained this point so that a suitable ground might be provided to realize justice.In the present article, the right of the accused to keep silence is, based on dividing crimes committed into crimes against "rights of God" and "rights of people", intended. Also, its grounds and reasons have been discussed.
    Keywords: jurisprudence, Penal Law, Penal Adjudication, right to keep silence, the accused
  • Abdolhosssein Rezaeirad Page 63
    In spite of the consensus among Shii and Sunni jurists on the generalities and grounds of the rule of no harm from which the Article 40 of the Constitution has been taken, there are so many ambiguities about the scope of its efficiency that the legislator and the executor of the laws may be bewildered. The reason behind such ambiguities is that there are many opinions about the content of the rule, and many theoretical discussions about the rule itself in the juridical works.To use this legal principle and important juridical rule more accurately and more completely in legislation, provide solutions for new legal and juridical problems as much as possible, show the efficiency of the jurisprudenc of the Household (PBUT), and prevent misuses which may be made of it, while avoiding falling in long theoretical discussions, the present article tries to analyze the exact limits of the application of this rule according to various opinions as much as the scope of the article allows. The author has tried to provide a new view to the rule, reveal its efficiency, and prevent unjustified uses made of it.Efficiency or inefficiency of the rule of no harm in negation of harmful judgments, proof of new judgments to ward off harms, conflict between laws when executed in warding off harms and finally in the case of conflict between harms according to each one of the existing opinionsin interpretation of this rule are problems the present writing seeks to provide solutions for them.
    Keywords: juridical rules, no harm, jurisprudence, legislation, government
  • Mohammad Naqi Nazarpour, Seyyed Abdollah Sadeghi Fadaki Page 91
    In Iran, in 1376/1997 when the Act for publishing such papers was approved, "participation papers" were introduced to fill the gap created because of absence of debentures in the economic-financial system which had been discarded because of their usury nature. The participation papers have been founded on the civil partnership contract, and those who have such papers are jointly partners of the issuer in a certain project. Nevertheless, it seems that some rules of the contract of partnership are not implemented in the participation papers; and this very point has caused some religious ambiguities concerning legitimacy of the contract of partnership. The most important suspicion posed by those who research in the field of Islamic economy concerns the guaranteed interim profit. Although the participation papers were designed as proposed by the jurists of the Guardian Council, there are some ambiguities and suspicions in the implementation which are discussed in the present study. The methodology of research in the present article is an analytic-descriptive one in which library resources have been employed.According to the authors, the participation papers are in the form of the contract of partnership, and its interim profit is legitimate.
    Keywords: participation papers, contract of partnership, issuer, interim profit, guaranteed profit
  • Seyyed Ahmad Habibnejad Page 119
    Supervision over the ratifications of the Executive Power is of paramount importance. Enjoying financial and administrative power as well as instruments such as approval of the budget and rules such as regulations, this power has a unique role to play in the scene of citizen's rights and obligations; and for the same reason, control of and supervision over the ratifications of this Power have been always of interest. Judicial control of administrative and executive actions of this Power by the Court of Administrative Justice (Article 173, Constitution),judicial supervision over governmental regulations by the judges (Article 170, Constitution), semi-judicial supervision exerted by ational General Inspectorate (Article 174, Constitution), the state audit office (Article 55,Constitution), and control exerted by the Speaker of the Islamic Consultative Assembly over governmental rules such as ratifications and regulations elaborated by the government as to their conformity with the Law (article 138, Constitution) are examples of the instruments designed in the legal system of our country to control actions of the Executive Power. This shows importance of control of and supervision over this Power in the governmental structure of the Islamic Republic of Iran.As far, the role played by the President of the Republic to control and supervise the ratifications of the Executive Power- headed by him-, has not been sufficiently noticed; and the point has been ignored in the writings concerning the Constitution of the Islamic Republic.The present article tries to provide a reply to this essential question: "how and by which instruments can the president supervise the ratifications of the Executive Power? The right to nullify and reject ratifications, which will be explained accordingly, and even the right todismiss the minister are among such instruments.
    Keywords: the president, Executive Power, Constitution, board of ministers, ratification, ministerial ratifications
  • Abdollah Khodabakhshi Page 141
    Proof through compurgation has been discussed in various juridical books. In this writing, we do not intend to discuss this point in details;but rather to study the reflection of compurgation in the judicial precedent and performance of the courts so that, while matching various cases to it, we may see its more tangible implementation and some of the most important issues concerning it which has occurred actually. In this way, we may understand the importance of the above points as well as supervision of the Supreme Court over performance of the courts. In other words, we intend to match the real cases to the rules of compurgation so that, in each case, the referents of the above rules may be understood in a tangible way. Thus, we do not seek to re-read the fundamental concepts and grounds of compurgation; and we will pay more attention to what that occurs practically, though, in this, juridical and judicial grounds and theories should be inevitably noticed.
    Keywords: compurgation, confusion, case, brief knowledge, court, Supreme Court
  • Taghi Dashti, Ebrahim Bateni Page 175
    Exact knowledge of the concept of minority is of influence to recognize and allocate minority-specific rights to various groups of the society. That which groups of the society may be considered as referents of minority and which groups may not is inferred from a scientific definition and conceptology of the minority. In particular, as far, we have no accurate indications to realize this point; and if in some definitions some indications have been mentioned, they do not enjoy comprehensiveness and a mechanism for assessment.In the first step, the present article tries to formulate some indications to recognize and specify minorities of a society. In the second step, the article stipulates that "to be in minority" is not an absolute condition, but rather it should be regarded as a relative one. Thus, we should go,through designing a suitable pattern, to establish some standards to recognize minorities and specify the intensity of "being in minority". To this end, after discussing the concept of minority, we have gone to recognize and explain the relevant indications. In conclusion, after depicting a table to recognize and specify minorities (spectrum of minorities), various kinds of minorities have been discussed to complete the point.
    Keywords: minority, identity, community, society