Volume 13, Issue 25 , November 2021, Pages 1-10
Saeed Ekradi; Reza Nikkhah Saenaghi; Siamak Jafarzadeh
Abstract
Privacy is directly associated with the individuals’ rights and freedoms and considered as an example of human rights in Islam. The necessity to recognize the privacy concepts and examples inevitably propels us to peruse the law and investigate how the judge intervenes in it in the judiciary. The ...
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Privacy is directly associated with the individuals’ rights and freedoms and considered as an example of human rights in Islam. The necessity to recognize the privacy concepts and examples inevitably propels us to peruse the law and investigate how the judge intervenes in it in the judiciary. The transcendent form this will not be realized except by knowing the privacy concepts and realm as well as its connection with jurisprudence and ethical issues besides the new criminal policy data. Apart from the “Privacy Protection” plan, waiting in the approval queue for almost 15 years, no definition of privacy is found in Iran’s legislative criminal policy, and supporting this legal phenomenon has been just sporadically emphasized only through stating some examples of privacy. After exploring the privacy concept and legislative issues, this study considers the “central freedom” approach under “governing principles” in laws as the best model proposed according to the Islamic principles and rules in order for the privacy of individuals to be protected under the shadow of clear laws. To achieve the goal, the present paper addresses the issue by correlation/harmony method and library method through basic research type.
Ruhollah Akrami; Azizollah Fahimi
Abstract
In Imami jurisprudence, the requirement of the rule of "testimony and oath" is that the obligation to present evidence is on the plaintiff and the respondent can provide the ground for issuing a ruling in his favor by swearing. This rule, along with some narrations, has caused the majority of jurists ...
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In Imami jurisprudence, the requirement of the rule of "testimony and oath" is that the obligation to present evidence is on the plaintiff and the respondent can provide the ground for issuing a ruling in his favor by swearing. This rule, along with some narrations, has caused the majority of jurists to invalidate the evidence of the respondent.In the present study, jurisprudential sources have been studied in a descriptive and analytical manner, and it has been concluded that the witnesses of the respondent is also valid, and The meaning of the rules and narrations is the validity of such evidence, which has not been taken away from discovery due to the Assumptions of the Wise; Even lawsuits concerning crimes against the body, the primary duty to provide evidence is the responsibility of the accused, and in cases of hadd and ta'zir, the accused's witnesses, according to the Obviation Rule (Darʼ), will cause suspicion of the witnesses of the plaintiff and consequently its invalidity. The law of our country has not explicitly ruled on this issue, but Article 185 of the Islamic Penal Code confirms the selected view of the investigation has been accepted by the legislator.
Jalil Omidi; Morteza javanmardi Sahib
Abstract
The jurisprudential standards have absolutely prohibited the punishment of ta'zir whipping more than the prescribed for Hodud, both in the legislative stage and in the judiciary. Such rules are typically regarded in post-revolutionary criminal law and the judicial precedent. However, the General Assembly ...
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The jurisprudential standards have absolutely prohibited the punishment of ta'zir whipping more than the prescribed for Hodud, both in the legislative stage and in the judiciary. Such rules are typically regarded in post-revolutionary criminal law and the judicial precedent. However, the General Assembly of the Supreme Court, in its decision, No. 795 - 1399/18/6, considered such a restriction to determine the punishment without imposing aggravating circumstances, and in case of recidivism, relying on Article 137 of the Islamic Penal Code, the punishment of flogging has declared more than the prescribed amount permissible. The Supreme Court's opinion can be criticized for a number of reasons. Ruling the legal regulations to the Shari'a standards against individuals, non-observance of jurisprudential standards and rules of interpretation of criminal laws such as in dubio pro reo and the holistic interpretation are the problems with the Supreme court's decision. unified judicial precedent contrary to the Shari'a, can be violated through the application of Article 477 of the Criminal Procedure Code.
Ehsan Ahangari; Masoud Jahandoost Dalenjan
Abstract
Judicial security can be understood as the existence of a judicial organization that guarantees a fair trial for the general public so that people do not have to worry about their rights being violated in court. The realization of this concept depends on the existence of many elements within the judicial ...
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Judicial security can be understood as the existence of a judicial organization that guarantees a fair trial for the general public so that people do not have to worry about their rights being violated in court. The realization of this concept depends on the existence of many elements within the judicial organization, the most important of which is judicial independence. Judicial independence must also be achieved in two areas; The first is the independence of the judiciary and the second is the independence of the judge. The present article examines for the first time the relationship between the realization of judicial security and the structural and administrative independence of the judiciary from the perspective of Islamic law. This study shows that the independence of the judiciary as one of the basic indicators of judicial security, although due to the absence of the issue in the age of the Innocents has not been explicitly the subject of Islamic law, but the goals of Islamic law in our time are appropriate to achieve independence. It is the judiciary.
Mohammad Bahrami Khoshkar; Abbas Asgari
Abstract
Review:Today, due to the rapid growth of technology and the benefits of using it, most advanced societies have resorted to the use of e-litigation in their judiciary; our country is no exception, especially after the outbreak of coronavirus to maintain health and other rights of the people The litigation ...
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Review:Today, due to the rapid growth of technology and the benefits of using it, most advanced societies have resorted to the use of e-litigation in their judiciary; our country is no exception, especially after the outbreak of coronavirus to maintain health and other rights of the people The litigation has become more prominent than before in e-litigation. That it is a new thing and has no history in the past, so it faces jurisprudential challenges, because the Islamic trial in our judicial system has its own rules and in the era of legislation, such a trial was not common.Some jurists have not accepted remote testimony and even written testimony, whether electronic or otherwise, others have issued a fatwa on the need to confess to a judge, given that the UAE also plays an important role in court proceedings and very little in electronic proceedings. Therefore, these matters face serious challenges in e-jurisprudence from a jurisprudential point of view.Due to the relatively high tendency in our country to use e-litigation, in this article we examine the legal jurisprudential challenges facing this type of litigation in our judicial system.
Aliakbar Jafari Nadoushan; Morteza Samadi; Ali Mokhtari
Abstract
In Islamic proceedings, more than any other measure, a distinction between judicial and thematic matters can help to facilitate a fair trial. Subjective matters are in the position of expressing an incident and incident, and in contrast, judicial matters consisting of law, legal rule, sources and valid ...
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In Islamic proceedings, more than any other measure, a distinction between judicial and thematic matters can help to facilitate a fair trial. Subjective matters are in the position of expressing an incident and incident, and in contrast, judicial matters consisting of law, legal rule, sources and valid Islamic fatwas and Judicial procedure in the general sense. According to the basic principle provided in the law, it is the duty of the litigants to present the matter and the judge has no right to intervene in this matter. Judicial matters are also within the exclusive duties of the judge and the maximum role of the litigants is to remind the judge and their actions are beyond their authority and power. Resolving the dispute by the judge and issuing a verdict by him, is basically subject to the separation of thematic matters from matters Judgment and order of matters is a matter of subject matter. Failure to separate judicial matters from thematic matters by judges, lawyers and experts on undesirable effects and problems such as delegating judgment to an expert, lack of proper oversight of the Supreme Court over the implementation of the law, issuing rulings outside the requested framework, and inappropriate interference of judges in matters. In this article, while comparatively analyzing thematic and legal matters in Imami jurisprudence and common law, the effects and benefits of separation between them will be stated, and criteria will be provided to distinguish legal matters from thematic ones in order to reduce the aforementioned possible effects using these findings
Ahmad Hajidehabadi
Abstract
Although the reflection of Dar´ rule in the Book One (Generalities) of Islamic Penal Code 2013 under the articles 120 and 121 indicates that the rule also applies to retaliation (qisas), apparently many articles of the Book Four (retaliation) of Islamic Penal Code 2013 evoke the meaning that Dar´ ...
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Although the reflection of Dar´ rule in the Book One (Generalities) of Islamic Penal Code 2013 under the articles 120 and 121 indicates that the rule also applies to retaliation (qisas), apparently many articles of the Book Four (retaliation) of Islamic Penal Code 2013 evoke the meaning that Dar´ rule is not applicable to retaliation. Three possibilities are imaginable when the articles 120, 121, and the afore-mentioned articles get together: the application of Dar´ rule to retaliation except the afore-mentioned articles; the application of Dar´ rule to retaliation in general and the domination of the articles 120 and 121 over afore-mentioned articles; non-application of Dar´ rule to retaliation in general. Reviewing three possibilities and presupposing that first, Dar´ rule has exclusive function only in the case that the evidences and the positive principles are punishments, and second, it is only meaningful when the judge casts doubt on instances, the article supports the application of Dar´ rule to retaliation and generally to the human rights whether they are hudud (crimes fixed and severe punishments in Islamic sources), qisas (retaliation), diyat (monetary compensation for deaths and bodily injuries), and ta´zirat (discretionary punishments estimated by a judge).
Aliabas Hayati
Abstract
No legislature can claim that the solution of all legal cases is provided for in the text of the law, and in no case does the judge face a legal vacuum for resolving disputes. Because various reasons, such as the novelty of the subject matter of the lawsuit, the legislator's delay in enacting the required ...
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No legislature can claim that the solution of all legal cases is provided for in the text of the law, and in no case does the judge face a legal vacuum for resolving disputes. Because various reasons, such as the novelty of the subject matter of the lawsuit, the legislator's delay in enacting the required law, the legislator's failure to enact a comprehensive law, etc., cause the legal system to face a legal vacuum at some point in time. In this case, two assumptions are conceivable. The first is that the lawsuit should be suspended until the required law is enacted, which is contrary to social order. Adopt the proposal and resolve the dispute and does not deny the realization of the right under the pretext of the vacuum of the law. Since the establishment of the judiciary in a new form in Iranian law, the legislature has always implied the legal vacuum by preferring the principle of the judge's duty in favor of social order to impose a verdict based on a source other than the law. This source, which has changed over time, includes the spirit and contents of the subject laws, certain customs and habits, legal principles, valid Islamic sources and fatwas of valid jurists. In this article, the evolution of this issue is examined.
Ali Khorramian; Reza Daneshvarsani
Abstract
Principle of equality of arms Recognizing and applying of Principle of equality of arms is one of the requirements of fair trial. Undoubtedly, execution of justice in procedure need to have enough اثباتی وسائل for Parties to disputes. Principle of equality of arms means that plaintiff and ...
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Principle of equality of arms Recognizing and applying of Principle of equality of arms is one of the requirements of fair trial. Undoubtedly, execution of justice in procedure need to have enough اثباتی وسائل for Parties to disputes. Principle of equality of arms means that plaintiff and defendant and their lawyers have legal status to prove their innocence or being criminal the other party. Of course in procedure, It should be in a way that none of Parties to disputes not to be deprived from providing evidence and proofs and also other possibilities. This case has been raised in the international community in the last century and also in the law of the islamic republic of Iran. But lack of research based on Islamic sources double the importance of this article. for this reason current research is looking for finding legitimacy of principle of equality of arms from the perspective of islam and also importance of observance and raising in fiqh. the Research is trying to investigate fiqh reasons taken from islamic sources In line with expression of the laws of the islamic republic of Iran. and also in procedure, it end up with the necessary observance and proof of legitimacy. Thanks for your time.
Seyed Hassan Davoodalmousavi; Seyed Mohammad Hasan Tahaie
Abstract
A jury is an institution recognized in some of the world's legal systems for judging litigation, clarifying the truth, or determining punishment based on collective wisdom that is closer to justice and rationality. According to the claim of the British legal system, this institution was one of the innovations ...
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A jury is an institution recognized in some of the world's legal systems for judging litigation, clarifying the truth, or determining punishment based on collective wisdom that is closer to justice and rationality. According to the claim of the British legal system, this institution was one of the innovations of this system and later entered the legal system of the countries of the world. Accordingly, some believe that this institution has been included in the constitution of our country by adapting to Western laws and has been raised in some relevant laws. One of the most important questions in this regard is the nature and position of the jury in the Islamic legal system and the degree of conformity of the Iranian legal system with it. The present study uses descriptive-analytical method to investigate this issue and concludes that despite the importance and special position of the jury in the Islamic legal system as an oversight body, in the Iranian legal system more attention has been paid to the advisory role of this institution. And is not given a worthy place; While according to the religious texts and fatwas of jurists, the position of the jury can be located in the Islamic judiciary in terms of the requirements of Islamic culture and jurisprudential provisions. In other words, by analyzing the jurisprudential sources and fatwas of Imami jurists, it is possible to depict an improved example of a jury in the Islamic judiciary that can act as an oversight body in the judiciary.
Mahdi Sajedi; Navid Emsaki
Abstract
Following the words of the Imami jurists indicates that they did not consider the written documents valid except in the case of a will. At present, however, most of the UAE is in the public domain in the form of ordinary, official written documents. On the one hand, there is no ordinary and official ...
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Following the words of the Imami jurists indicates that they did not consider the written documents valid except in the case of a will. At present, however, most of the UAE is in the public domain in the form of ordinary, official written documents. On the one hand, there is no ordinary and official title in jurisprudential rulings and there is no ruling on these titles. On the other hand, sometimes there is a conflict between these documents in order to prove ownership. They place the banat on the parties to the dispute. However, it seems that with the new subject matter of written documents, these documents can be considered as a written confession, which is accompanied by numerous evidences regarding its contents. Provisions whose authenticity can be verified and validated. In this case, according to the various systems that exist or can be created to verify the contents of official documents, these documents can be useful as a stronger assurance or suspicion than ordinary documents and have the ability to take precedence over ordinary documents in judicial courts. To be. The Islamic ruler can also, in order to regulate the transactions and prevent the disruption of the system and close the door of abuse, make the influence of ordinary transactions on the rights of third parties conditional on obtaining or ensuring the accuracy of the provisions of ordinary documents and thus the public Encourage the conversion of ordinary documents into formal ones.
Saeed Siahbidi Kermanshahi
Abstract
Conflict of interest is a situation in which a person who is responsible for protecting the interests of others (primary benefit) is able to make decisions that the consequences of these decisions affect others; But because of personal interests, there is a fear that the decision maker will put his personal ...
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Conflict of interest is a situation in which a person who is responsible for protecting the interests of others (primary benefit) is able to make decisions that the consequences of these decisions affect others; But because of personal interests, there is a fear that the decision maker will put his personal interests (secondary interest) before the interests of others. The existence of a conflict of interest for the witness makes him a suspect and distorts the validity of his testimony; For this reason, it is necessary to properly explain the cases of conflict of interest of the witness in order to maintain the validity of this important positive reason in the legal system, and also to limit the grounds for unnecessary injury to witnesses; Therefore, it is necessary to answer the question that in the Iranian legal system, what strategies are envisaged for managing the conflict of interests of witnesses? And in what cases are the envisaged solutions defective and need to be corrected? In the present article, the positions of conflict of interest of the witness are presented and the position of the Iranian legal system in each case is reviewed and it was concluded that firstly, the legislator did not fully explain the positions of conflict of interest and it is necessary to ignore the positions of the system. Explain our rights, and secondly, in cases where the legislator has paid attention to the principle of conflict of interest, his performance in the manner of expressing the prohibition can be criticized and needs to be corrected.
Gholam Hassan Kooshki
Abstract
Abstract: In any legal system, the criminal justice system has clear goals. In the Iranian legal system, due to the influence of this system from religious teachings and attention to indigenous needs and delinquent conditions in society, it has goals such as providing justice, realizing the rule of law, ...
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Abstract: In any legal system, the criminal justice system has clear goals. In the Iranian legal system, due to the influence of this system from religious teachings and attention to indigenous needs and delinquent conditions in society, it has goals such as providing justice, realizing the rule of law, establishing security, receiving reform and treatment, and Repair of damages to the victim. It is clear that some of these goals, like justice, take precedence over others. Looking at the basics of the Islamic legal system, it is clear that we can not talk about a single goal for criminal proceedings, but a range of different goals can be considered. In the meantime, achieving the goals of Sharia is one of the main goals of the criminal justice system in Iran. The success or failure of this system must be explained in the light of the above objectives.In this article, with a descriptive-analytical method, an attempt has been made to explain the various goals of the criminal justice system with an emphasis on Islamic teachings. Achieving these goals will lead to the establishment of security in society and the realization of the principle of the rule of law and the prevention of chaos in society.
Adel Alipour; Hossein Goldouzian
Abstract
Every criminal justice system, including the jurisprudential criminal system with direct impact on Iran's criminal law, seeks to identify, use and organize the most effective and fair" legitimate" tools to discover the truth in order to provide the possibility of achieving justice and issuing just verdicts ...
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Every criminal justice system, including the jurisprudential criminal system with direct impact on Iran's criminal law, seeks to identify, use and organize the most effective and fair" legitimate" tools to discover the truth in order to provide the possibility of achieving justice and issuing just verdicts by forcing judges and other criminal justice activists to use these tools. Using the phrase "discovery of truth" for twelve times in the Criminal Procedure Code shows that in contrast to some interpretations of jurisprudential rules, the legislator, considers the purpose of the trial not the disposal of hostility but the discovery of truth. However, there are some jurisprudential rules and sub-rules about demonstrative evidence, which accepting them unequivocally can make the path difficult to reach the goal of truth discovery. The legislator has tried to overcome the self-made obstacles to the discovery of truth by moving from the devotional approach to the rational approach, from the quantitative approach to the qualitative approach, from personal knowledge to common knowledge, and from the subjectivity of evidence to the methodology of them. This article seeks to study the approach of the present positive law to the acceptance of new and scientific demonstrative evidence without compromising the relevant jurisprudential structures, under each of these departures and with emphasis on Qasameh. And in order reach our goal, we also used descriptive-analytical method and described those sub-rules governing the demonstrative evidence in Imami jurisprudence that dogmatic and inflexible belief in which can cause obstacles in the way of discovery of the truth.
Shaghayegh Amerian; Mohammad Reza Kaykha
Abstract
AbstractRepentance has worldly effects along with otherworldly effects. What has been studied in legal jurisprudential sources as the effect of repentance is exemption from punishment. But can a mere claim of repentance save the offender from punishment? And does repentance, which saves a person from ...
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AbstractRepentance has worldly effects along with otherworldly effects. What has been studied in legal jurisprudential sources as the effect of repentance is exemption from punishment. But can a mere claim of repentance save the offender from punishment? And does repentance, which saves a person from punishment, lead to the return of justice to qualify as a judge or witness, etc.? This descriptive-analytical study shows that since true repentance requires becoming in the essence of the person, then the return of personal justice can be concluded as a desirable effect in whatever justice is a necessary condition. This manifestation of the attribute of immorality to justice is proved by following the rulings from real interests and corruptions, following the ruling from the subject, the rule of repelling possible harm, the rule of good and rational ugliness, and turning evil into good. Of course, the return of justice and the acceptance of the arguments of becoming are conditional on the attainment of true repentance by the claimant of repentance. This means that not every claim of repentance can be considered subject to these worldly effects. Rather, one's repentance must be attained by the competent authorities. Therefore, providing solutions for repentance for each of the crimes committed in Venice in general is one of the features of this article.Keywords: repentance, becoming, justice, limit, crime, repentance strategy
Hasan Ghowth; Hosein Naseri Moghaddam
Abstract
More than 35 articles in the Islamic Penal Code are related to the subject of oath. One of the controversial issues regarding oaths is those who have to swear; In the first place, the oath is specific to the relatives of the victim and in some cases, it is rejected by the person suspected of murder. ...
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More than 35 articles in the Islamic Penal Code are related to the subject of oath. One of the controversial issues regarding oaths is those who have to swear; In the first place, the oath is specific to the relatives of the victim and in some cases, it is rejected by the person suspected of murder. The question is, who are the swearers and what is their relationship with the victim (or killer)? Despite its importance, this issue has been less raised in the words of the jurists, while in practice, the execution of the oath depends on it. There are five possibilities and four promises in this regard: the actual heirs, the classes of inheritance (including the actual and potential heirs), the absolute relatives, the tribe and the absolute, the rijals. It is a famous saying among the jurists of the tribe and tribe of the slain. In this article, we have strengthened the promise of relatives, which is also approved by the Penal Code. Our evidence for this statement: The Qur'an is the appearance of narrations, the words of jurists, and the wisdom and philosophy of oath legislation.
Zahra sadat Managheb; Seyyed Mostafa Managheb
Abstract
Proving a criminal case has always faced difficulties and one of the methods to prove a crime is to use the presumptions. Legal presumption and judicial presumption are two types of presumptions in Iranian law. The presumptions has rule of life in criminal law and is limited to those cases that the legislature ...
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Proving a criminal case has always faced difficulties and one of the methods to prove a crime is to use the presumptions. Legal presumption and judicial presumption are two types of presumptions in Iranian law. The presumptions has rule of life in criminal law and is limited to those cases that the legislature has recognized as valid. Important examples of legal presumptions in Iranian criminal law are the presumption of criminality in the money laundering law, the presumption of membership in anti-security groups of the country and the statistics of aggravation of punishment. There are also other legal presumption that are addressed in the present study. In order to establish the truth of a case in a case, the judge is required to follow the law provided by the legislature. But the credibility of the judicial presumption depends on the opinion of the judge. The implication of this type of presumption is stronger than the implication of legal presumption and the peace of conscience of the judge is more tangible in judicial presumption. The cases of the Judicial presumption can not be counted and confined in any way, but the most important examples are expertise, research and examination of the place, fingerprinting, etc. The judicial presumption should only be cited in proving the rights of the people; Because in the right of God, the principle is to cover. In the present study, descriptive-analytical method and using numerous articles and books to identify the examples of the presumption and also one of the challenges of using the presumption, namely different forms of conflict. In line with the above-mentioned challenge, new and practical solutions for resolving conflicts have been presented, the effect of which is to provide the means for issuing a fair verdict and discovering the clear and obvious truth.
Seyed Rasul Mousavi; Hakimih Safari
Abstract
Islamic legal restudy of the validity of Islam in the judge in judging Christian and Jewish cases.Judgment has a special and important role in the realization of social order, law enforcement, and divine commandments. Social justice also requires access to social opportunities for all members of society. ...
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Islamic legal restudy of the validity of Islam in the judge in judging Christian and Jewish cases.Judgment has a special and important role in the realization of social order, law enforcement, and divine commandments. Social justice also requires access to social opportunities for all members of society. According to Islamic jurisprudence, Christians and Jews can practice their jurisprudence in some cases that do not harm public order. Article 13 of the Constitution of the Islamic Republic of Iran states the same thing. The reasons why a judge is required to be a Muslim are related to cases where the parties or at least one of them is a Muslim. This study, by examining and criticizing these reasons and quoting verses and hadiths, considers the judgment of a Jewish and Christian judge in the judicial system of the Islamic government as permissible. Their judgment applies to cases where both parties are Christian or Jewish.
vahid nekoonam
Abstract
Evidence of guilt is a fundamental issue in different legal systems, and it varies depending on whether the approach to proving a claim is a system of legal evidence or convincing a judge's conscience, but in both systems the basic issue is the legitimacy of reason; That is, the mere fact that it is ...
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Evidence of guilt is a fundamental issue in different legal systems, and it varies depending on whether the approach to proving a claim is a system of legal evidence or convincing a judge's conscience, but in both systems the basic issue is the legitimacy of reason; That is, the mere fact that it is legal is not enough, but it is necessary to study it with legitimate tools and methods.From the jurisprudential point of view, obtaining evidence through illegitimate means is forbidden, and the judicial system should not use any illegal method to prove a crime, but the validity of illegal evidence in proving a crime should be elaborated. In some cases, the method of education certainly destroys the reason for its validity, such as confessions obtained through torture, but in cases where this does not interfere with its discovery, due to the existence of different views, the subject is accurate and debatable. In Iranian law, despite the defensible legal developments that have taken place in the field of evidence and criminal proceedings, there is no explicit and decisive provision in this regard. In this research, in a descriptive-analytical method, we examine the effect of obtaining evidence through illegitimacy in the detection of crime, and in this regard, the arguments of the discussion are examined separately and finally, an independent view is expressed from a jurisprudential point of view. From a legal point of view, while explaining the existing laws, the approach of judicial procedure in this regard is evaluated.
