فصلنامه پژوهش های فقه و حقوق اسلامی
سال دهم شماره 2 (پیاپی 35، بهار 1393)

Taqiyyah is one of Shiites beliefs. It is applicable where a person's property, life, or prestige is prone to the threat of an enemy and preserving them shall be subject to produce a statement or practice contrary to the absolute religious rules. Innocent Imams have not only authorized to act according to this order, but also they have adhered to it so that some traditions which guarantee religious orders have been issued based on Taqiyyah. Therefore, an order cannot be documented based on the tradition. On the other hand, jurists deem many of the traditions that are contrary to the famous view and in conformity to the view of Sunnis as Taqiyyah and hence, did do act accordingly. However, the infamous view conforms to those traditions or can be documented to them. This question is then raised seriously as what caused Imam (peace be upon him) to develop Taqiyyah although his position in announcing the orders and safeguarding the religion is like the Prophet. But the Prophet did not Taqiyyah, otherwise it would be regarded as violation of the intention. The hypothesis proven to answer this question is that according to the texts of narrations and traditions of innocents Imams (peace be upon them), the basis of Taqiyyah was that the situation of Shiite in the government was jeopardized. Therefore, the traditions can be regarded as Taqiyyah that are related to jurisprudence orders in relation with the governing prestige and not any tradition contrary to the well-known opinions that agree with the views of Sunni people.

In according to benefaction rule, the trustee is not responsible for defect or spoil of trust property. Restitution property, in simulate of implement, is his (or her) troth. Should be known that many assumptions are thinkable in it that is not simplicity of analysis. In abusive assumption, someone that are broken up in sight, in commitment guilt, reversion of guilt is not sufficient for trusteeship, in break up contract and other property is in occupied possessor.

The human being is a property of god, and it is according to his permission that everybody is the owner of his deeds and actions and that everyone has the power of making decision about his or her body organs unless the time his life goes under danger. Moreover, every individual has the right to will how to be dealt with his properties and accessories after his death including the right of willing of a person about his body organs to be or not to be used after his death (whether natural death or brain death). Within this research it is realized that the optimal use of a deceased’s body organs is permissible in the case of brain death; and even if there exist no will by the deceased, but the guardians of the one who is passed away have consensus upon it, it is still permissible to use the dead person’s body organs, and on the whole it was proved within this research that utilizing a dead person’s body organs in order to solve the problem of another Muslim human is permitted.

Uncertainty or error in word means mistake, ignorance and unawareness. And in legal sense it means that the murderer targets an objective person but hits somebody else and kills him/her for any reason including lack of skill or involuntary causes. In respect to the impact of error in target on nature of murder, it seems two modes should be distinguished: 1- If a person intends to shoot on a punishable thing, animal or person and his shoot would go wrong and hit a respectful one, in this case the murder is considered as pure error.2- If a person intends to shoot on a respectful one, but his shoot would go wrong and kill another respectful person, this case is assumed as intentional murder according to criminal rights logic. Regarding Shiite jurists view on error in targeting, most of them assume this kind of murder as pure error without distinguishing between shooting to a punishable or a respectful person. The same case is seen in Article 296 Islamic Penal Code (1370). Fortunately, by deleting old article 296 and registering Clause “D” Article 290, the new legislator has been trying to declare that error in targeting where both primary and final target are respectful persons, has no impact on the nature of murder (as according to Article 294, error in identity has no impact on the nature of murder) because if we accept that legislator’s goal is to protect each person not one or some specific one (s), then there is no difference who would be murdered at the end. The important point is that a respectful person is murdered so the murder is considered as intentional murder.

Lawmaker in new Islamic penal code in chapter five of general articles of atonements, under paragraph b of article 488, has determined two years deadline for payment atonement in quasi-intentional murder, as the murderer is required to pay half of atonement per year. This viewpoint is accompanied agreement of famous Imam Jurists with itself. The main famous reason after consensus, is being "different criteria". They believe since the quasi-intentional murder is lighter than first degree murder, and harder than chance-medley, and as respects in first degree murder that causing atonement and chance-medley murderer have to paid atonement respectively in one and three years; so in quasi-intentional murder naturally this term should be two years.The author with conflict in was claimed consensus and denial mentioned credit reason and cited to evidence predications of deadline for payment atonement, and also cited to practical principle in position, respite and term payment of mentioned atonement knows three years.

Zoor” testimony is one of sins and offenses in Islamic criminal law that the holy legislator of islam punish its functor with community notification of his. of course, from the semantic view there is no same definition about the “Zoor” testimony but In different opinions is defined: “falsity testimony” or “invalid testimony” or “testimony not according to the truth” or “testimony despite knowing the untruthful” and from the viewpoint of this paper its exactly define is: “person knows the truth, testifies deliberately not according to the truth or person don’t knows the truth, testifies deliberately, no matter that conforms incidentally to the truth or untruth”. It is emphasized that: the perpetrator of such testimony, according to the narratives)Hadiths(and rational necessity to obtaining public good created, Should be introduced to all those who are exposed his deceptive testimony.

In all contracts, the first principle is based on necessity, but use of this principle by common excuse can be abolished. The common excuse against the special excuse is a barrier out of parties will which generally prohibits the obligation of contract or in some cases like lease contract it can hamper the vindication of benefits. The prohibition of the vindication of benefits by common excuse depending on the time of appearance would had been effected because common excuse can be appear in various times, because the common excuse can be happened sometimes before bill of subject of hire and sometimes immediately after that and sometimes with an interval after bill maybe before any exploitation of benefits or during the exploitation or at the end of the that. This research has investigated these aspects especially related to lease contract.