پژوهشنامه حقوق اسلامی
پیاپی 32 (پاییز و زمستان 1389)

Invalidity is the state of a juridical act not valid in terms of law، and lacking the expected effects in terms of its validity. In fact، an invalid juridical act is one lacking an essential foundation and not restoring validity through subsequent authorization. Shiite jurisprudents consider the word «invalidity” in its general sense including the state of being inoperative. The present article seeks to clarify the meaning of annulment of contract، and its differences with institutions such as invalidity، being inoperative، withdrawal of contract، and suspension in the Shiite jurisprudence، the four Sunni schools of law and the law of Iran. Since the concept of annulment in the law of Egypt (as a Muslim country with its legal system based on Sunni jurisprudence) is different from that in the law of Iran، it will also deal with and analyze those differences.

Crimes against morality like crimes against other elements such as economy، spiritual dignity، and physical health can be committed in an individual or organized way. Naturally the organized form gives rise to severer punishments for the perpetrators. In the field of moral cases، due to the lack of any mechanism towards criminalizing certain crimes related to this field، there is no clear distinction between the individual or organized commission of the above mentioned crimes. However، this is not peculiar to this field and embraces other fields as well. It is noteworthy that the organized form in this field may accompany the intention of the subverting the Islamic system and disturbing its foundations. Although there is no special category for these crimes in jurisprudential sources and statute law، the possibility of extending common jurisprudential terms to this type of crimes can be taken into account or be proved as something necessary so that the crimes at this level and with these motives would be punished in a proper way. Among jurisprudential terms، infringement of public security and corruption on the earth can be extended to this type of crimes more properly than others. Of course، this requires determining the relation between these two terms. There are two views discussed in this field by jurisprudents i. e. distinction of the two termsor their overlapping. Numerous traditions and the views of earlier jurisprudents suggest that these two terms whether separately or commonly can extend to crimes against morality in case of being organized and with the intention of subversion of the Islamic system.

According to Islamic values and The Constitution of Islamic Republic of Iran the family is the fundamental unit of Islamic society, all laws, regulations, and pertinent programs must tend to facilitate the formation of a family,, and to safeguard its sanctity and the stability of family relations on the basis of the law and the ethics of Islam. The process of social developments in contemporary Iran from the beginning of modernization procedures is different from what it was before. This difference manifests itself in functions of families, social deviations and criminal phenomena. The gradual distance of two or three successive generations from each other creates a new situation called generation gap. This phenomenon accompanied with features such as reduction of verbal communications, emotional gap, disturbance in associating, and political anomaly particularly concerning the younger generation can be one of the most serious grounds of abnormality and inclining to criminal phenomena and social deviations. Following the framework of studies of criminal sociology, i.e. study of crime as a social and human reality, the present article seeks to indicate the effect of changing values in the process of social changes in Iran. This can pave the grounds for commission of crime or deviation due to disturbing social security and reducting social capital and confidence. Studying the theoretical model of Parsons and Giddens and some other sociologists, the present article attempts to study primary sources and stereotypes of violence in the social structure of modern and developing societies. According to these arguments, the most important cause of social injuries giving rise to the inclination of Iranian younger generation to crimes and social deviations is disturbance in the supervisory functions of families and the feeling of self alienation originating from the crisis of meaning in modern societies.

Studying the historical grounds of the institution of endowment، the present article investigates into this jurisprudential and legal concept. Taking a cursory look at the foundations and effects of endowment، it deals with the issue of sale of the endowed property. In this regard، supporting the principle of impossibility of sale of the endowed property، it takes the exceptional cases into consideration، i. e. destruction of the endowed property، fear of the destruction of the endowed property، destruction of a part of the endowed property، permissibility of sale of the endowed property originating from the relations of the beneficiaries of endowment، (fear of disputes and bloodshed)، ameliorative substitution، necessity، and the condition of sale in endowment contracts. Finally a brief report of these regulations in other Islamic schools of law is presented.

Offensive Jihad as one of the branches of the holy religion of Islam is so significant that one particular chapter is devoted to this issue in jurisprudential sources. Offensive Jihad is a two-fold regulation raising questions in two ways. On the one hand، the question is whether offensive Jihad by the Islamic government at the time of occultation is permitted according to the Shiite thought. This question can be dealt with in the field of public law. On the other hand، from the perspective of human rights، the object of offensive Jihad –calling non Muslims to Islam، according to a large number of jurisprudents- is controversial، since it is in conflict with freedom of thought and belief of human being and is considered an imposition according to many intellectual thinkers. The main hypothesis of the article is that offensive Jihad in contemporary times is allowed based on human rights requirements and religious proofs. Studying the goal and wisdom behind offensive Jihad in Islam، this article discusses the legitimacy of offensive Jihad under the rule of the fully qualified jurisprudent.

Competition is one of the most essential elements in the market، since there is no market without competition، nor are consumer rights and national development guaranteed without it. If there is functional guarantee of competition in the process of supply and demand، there would be no problem in horizontal or vertical markets. However، if disturbances arise in the competitive behavior of the market، and certain actors or institutions – misusing the absence of necessary grounds، and legal as well as supervisory vacuums- turn to monopoly or to establishing their own position، or misusing their dominant position، the market would suffer direct disturbances in terms of quality and price. It would also give rise to various serious problems facing the market and other economic actors. These problems may lead to the destruction of producers or distributors and consequently to problems in social security. To reach this goal، competition law on the one hand، encourages the competition system to regulate the market، and on the other hand، starts to counter and fight anti competition behavior under the monopoly law. The present article seeks to compare the two competition laws of Iran and France، thus reviewing similar mechanisms of French law viewing the birth of this legal field in Iran and the weak points in its legal framework.

Accessories to the object of sale has always been under discussion and debate among jurisprudents and lawyers. Is customary intention a criterion towards determining the accessories to the object of sale? Or the very parties to the contract should necessarily agree on it though in an implied way? If recognition of the accessories is left to the common usage، Is it a rule or an exception to the rule? Can common usage lie next to other religious proofs and determine the facts under law، or it is necessary for it to be approved and authorized by the divine legislator? The present article studies the foundations of customary implied terms towards responding to these questions. These responses can be quite useful for judges towards settling legal cases.