فصلنامه حقوق اسلامی
سال یازدهم شماره 1 (پیاپی 40، بهار 1393)

One of the important fields of civil responsibility is the one originated from possession in own right which results in harm to the other. There are two declaratory and obligatory rules concerning such possessions and some jurists think that, here, the two are the same. But, to prove responsibility in these possessions, there should be requiring evidence and there should not be counter evidence. Evidence requiring responsibility includes there rules: wasting, causing wasting, and no harm (to the other) which may be negated by three rules: sovereignty, no distress and constriction, and no harm (to the owner). If such arguments are collectively taken into account in a case, one may prove whether the owner is responsible or not. To find whether the above rules may be applied or not, one has to make distinction between different conditions in a case while taking into account the factors involved. These factors are as follows: 'intent or absence of intent to harm the owner by possession', ' the owner's knowledge or ignorance of harm to the other', 'whether the ownerspossession is as much as he needs or not', 'whether the owner sustains a loss or not because of non-possession', 'whether the owner comes into a restriction or not because of possession or non-possession', 'the extent of loss sustained by neighbor as compared to that sustained by the owner'.

According to Shi’i and Sunni jurists, he who vilifies the Holy Prophet is considered as one whose blood may be shed with impunity and one who should be killed. According to many Shi’i jurists, vilifying prophets (A.S.), Infallible Imams (A.S.), and Lady Fatimah (S.A.) is the same as vilifying the Holy Prophet (S). In the present article, only vilifying Infallible Imams (A.S.) whether directly or under some other pretext is studied. In the present article, emphasis is put on the point that (except for one who vilifies the Commander of Faithful (A.S.) whose bled may be shed with impunity and even vilifying the Commander of Faithful (A.S.) may be considered identical to vilifying the Holy Prophet) ‘proofs’ given for permissibility of shedding blood of one who vilifies (while vilifying is not an instance of some other offences) should be studied and investigated in more details. Though, in terms of other instances, the point is clearer in particular concerning one who vilifying Imam in extreme that may be considered as Nasibi and one who may be killed.

The mere idea is protected neither in the system of industrial property rights nor in the system of artistic and literary property rights. When an idea is emerged and expressed, if it fulfills certain conditions, it will be protected as an invention or an industrial project according to the systemof industrial property rights; and when it is expressed, if it is genuine, it will be protected within the system of artistic and literary property rights. In addition to the system of intellectual property rights, idea is protected by other systems such as the “Act against Unfair Competition”. Since thisprotection is not sufficient, and to strengthen it in cases in which idea plays a great role in creating an intellectual phenomenon and motivating the creative power of the creator, some measures should be taken. Courts in the United States hold that conditions such as novelty, coherence, andprivacy should be fulfilled by the idea which is supposed to be protected, and introduce theories of ownership, unjust enrichment, explicit contract, implicit contract and secret relations to protect ideas and their owners.

In the Islamic Punishment Code (approved 1392/2013), the Iranian Legislator has considered armed rebellion against government and foundations of the system of Islamic Republic of Iran as being among offences for which the criminal should be religiously punished. The legislator has labelled it ‘baghy’ and for which, he has considered, in the Articles 287 and 288, execution punishment and in some cases imprisonment. Since the legislator has considered it as an offence for which the criminal should be penanced on the one hand and because of considering execution punishment for it on the other, the nature of and rules concerning this offence have faced serious challenges. To explain the nature of this offence and find whether for which a strict penance should be announced or the judge is free to specify minimum or maximum punishment for it, whether it is a public offence or a political one, whether it is absolute or constrained, organized or unorganized, whether its rules correspond to the juridical standards or not, the present writing goes to discuss it comparatively from the viewpoint of Imami jurisprudence and Iranian Law.

Commutative justice means rule of will, prohibition of State’s intervention in private contracts and considering the contents of every kind of agreement as being fair. Parties of a contract are the best judges for their own interests and their decisions are legal and binding. ‘Commutative justice’ has no history in Imami jurisprudence; in the jurisprudence of contracts, however, jurists have accepted the wills of the contracting parties as the main basis of obligations under some conditions.If jurists’ works are studied and ‘proofs’ such as rules of taslit and conditions for veracity and prohibition of conversion are taken into account, at the first look, it may be found that Imami jurisprudence inclines to accept commutative justice. But, if proofs and rules such as the rule of‘no harm’, prohibition of usury transactions, the principle of equity, and public guardianship are considered, the result will be different and according to which many addenda to contracts (if they include, because of monopoly of one party and urgent conditions of other party, strange and unfair terms) are not according to Imami jurisprudent legally forcible.

One of the grounds for revoking acts and decisions of public authorities is “Ultra Vires”. Thus, while making a decision or taking an action, officials should observe limits specified for their powers by the legislator. In administrative law, this concept is known as the principle of “Ultra Vires” and, in English and Iranian administrative law, it is a basis of judicial review and its scope. In the present article, at first, the “Ultra Vires” principle has been discussed within the framework of English administrative law doctrine. As a result of discussing the mentioned doctrine, the broad jurisdiction of courts to control decisions taken by the public authorities is justified. In what follows, concerning Iranian administrative law, the present writing comes to the conclusion that the scope of the principle of “Ultra Vires” is mainly limited to the executive. The Iranian judges in AdministrativeJustice Tribunal may ponder upon the different natures of actions of public authorities and separate them from each other. Then, having adopted a new approach in judicial interpreting of justiciability, they may play a role of paramount importance in protecting citizens’ rights and freedoms.