فصلنامه پژوهش های فقه و حقوق اسلامی
سال هشتم شماره 3 (پیاپی 29، پاییز 1391)

The natural children and the legal capacity related to them has been always a matter of controversy in many legal systems. In some legal systems such as France, homogenizing the rights of legitimate and illegitimate children is sought, while in Islamic countries, particularly in Iran, the purity of parentage is the matter in legislation relating to children. This article explains the arguments for and against the homogenizing rights of illegitimate children; stating that advocates argue for homogenizing of children's rights, whether legitimate or illegitimate, with an emphasis on the principle of individualization of punishment; They believe that considering some deprivation for natural children, while they normally have no role in the matter is contrary to justice and anyone should not be punished for the mistakes of others. In contrast, opponents state that the abolition of the statutory deprivation for these children is not only to the detriment of families, but it would weaken the foundation of them and cause in diminution of relative interests and also in damaging the children, who come into the existence through this way. Hence, with an awareness of the adverse consequences of failure to guarantee the generation of illegal relationships outside of the families, the Islamic legislator seeks to protect the health of generations and purity of people in the community. Because, in the Islamic religion, purity of parentage is one of the main intentions, so that many of the provisions have been issued in order to protect and preserve it.

In discussion of selling endowment, the general principle is lack of selling endowment. There is disagreement between jurists in getting out of this general rule, but most jurists and even lawyers and civil law of Iran believe in selling endowment in certain cases. In case of selling endowment in answering to this basic question that if endowment is being invalid in selling or endowment remains in endowment case until the time of selling endowment and is been invalid by external selling. There are three theories: the first theory believes in being invalid of endowment by selling. The second theory believes in being invalid of endowment by external selling and third theory by expressing 8 cases as the cases of selling licenses believe in extending and in some cases believe in being invalid of endowment by selling and in some cases believe in being invalid by external selling.

In the modern criminal, decriminalization is an issue that have been inevitably raised because of criminal population inflation. In the present article, the authors tried to explain this issue. In the last part of this article, the view point of Fiqh Imamiyeh has been studied and analyzed too.

In case in which the testator dispose of more than one - third of the estate, with respect of majority of Imamiyeh jurisprudence view, the heir's permission is non ¬returnable but it has been said that the heir's permission is returnable on the ground, that, they have not any possession on the testator's properties during his living time. Article 843 of Iran's Civil Code provided that: the testamentary disposition of more than one-third of the estate is not valid, except with the permission of the heirs; and if some of the heirs agree, the disposition applies only to the share of those heirs. In the interpretation of mentioned article some of lawyers believe that with respect of generality of this article, the heir permission at the testator living time is non¬returnable; but some of the other lawyers have said that heir's permission is returnable until testator death time and after death it doesnt need new permission and it isnt returnable.

The unlimited variety and complexity of social relationship, generality and being abstract law, the necessity of disputing claims and so on are considered as a necessity to interpret the law. One of the important resources that should be considered in interpreting the rules is the custom. Family Law, more than any other areas are affected by custom and social relation. This clearly proves by referring the civil law. But it should be noted that customary law is not always valid and it needs some legal provisions to have potential to referring. In this paper, the role of custom in interpreting some rights and non-financial relationship between couples, such as good companionship with one's wife, recognizing family interests, conditional contract are examined.

After approval of the code of civil procedure in public and revolution courts which note 2 of article 515 of it declared that damage arise from loss of profit is not demandable, in the light of different interpretations introduced about it, position of Iran law about compensability of wasted profits became ambiguous. Because of legal importance of determining scope of compensable damages in context of tort and contract liability more research about grounds and context of that provision is necessary. In order to offering just interpretation from that provision its jurisprudential origin and other statutes related to liability of wasting profits ought to be considered. Position of Imamiyeh jurisprudence about compensability of lost profits and indications of other related provisions dictates this view that from this provision can be followed only impermissibility of demanding loss of profit in context of contractual liability and utmost dining liability for wasting of inconclusive profits and legislator was not about general forbidding compensability of damage arise from loss of profits.

Regarding the evolution of Islamic Rational Interpretation (Osûl) through out the history, reason as the principal issue of this science had some serious challenges. One may ask what is the situation of reason in the procedure leading to jurisprudential opinions. This is an ancient question on which from the primary centuries of the genesis of Islamic theology and jurisprudence there were several discussions. Some Islamic sects seek the roots of their differences in the different applications of reason. However, the contrast of two major approaches in this issue may be found in sciences such as interpretation, theology, jurisprudence and Osûl. In the determination of the position of rationality, three following approaches may be detected: 1. reason is the foundation of Shariat.2. reason is the key to Shariat.3. reason is the illustration and light of Shariat. In this essay, we tried to study this approach with a historical perspective on the situation of rationality in the era of traditionalism.

The issue of condition and related discussion is one of the problems that has a high importance in Imamiyeh and public jurisprudence and hence it has special place in civil law. The primary condition and supplemental and constructive due to the time of conditioning is divided into condition(concluded antecedent agreement) and stipulation. The constructive condition is the condition before the contract which is agreed upon and the contract is based on it. There is no unanimity between precedent jurisprudents about correctness or void of constructive condition. Well-known jurisprudents believe that condition should be interim contract and coincide with it so that it could be recognized necessitation so it void. Some jurisprudents opinion the correctness of constructive condition and some believe in its void and provided some details but subsequent jurisprudents believe constructive condition is valid. Lawyers in Iran believe that the constructive condition is valid. and legislator follow the effect of minority jurisprudents opposed to the current procedure and in1113 and 1128 of civil code of the constructive condition is considered a valid and binding and with the help of articles 410, 413, 354 civil code is justifiable.