Hossein Haghighatpoor; Mohammad Hasan Haeri yazdi
Abstract
In the common interpretation of jurists, the distinguishing feature of endowment (waqf) compared to other forms of charity is the dedication of the principal asset along with the allocation of its benefits. Based on this understanding, "permanence" is considered one of the essential characteristics of ...
Read More
In the common interpretation of jurists, the distinguishing feature of endowment (waqf) compared to other forms of charity is the dedication of the principal asset along with the allocation of its benefits. Based on this understanding, "permanence" is considered one of the essential characteristics of endowment. On the one hand, this approach necessitates the preservation of capital from financial circulation and wealth reproduction. On the other hand, the necessity of following the endower's will and caution in ensuring the compliance of the endowment's status with it sometimes leads to legal deadlocks. Moreover, with the acceptance of the aforementioned assumption, public acceptance of endowment will be less; because the endowed property usually has a significant economic value. The proposal that can be made to address these dilemmas is to institutionalize "temporary endowment" and promote it. This is an institution that many Islamic countries have occasionally pioneered and succeeded in utilizing, following a less well-known jurisprudential fatwa. In our country, this institution can also be used as one of the best mechanisms for realizing the policies of the Economic Strength. In this paper, the authors try to weaken the foundations of the dominant view by describing and analyzing library resources and relying on the opinions of some great scholars. Then, they strengthen the theoretical basis of "temporary endowment" and finally propose the introduction of this institution into the legal system.
Ardavan Arzhang; Somayeh Aaghai nezhad
Abstract
According to this rule, retaliation of a limb is for the "shain" (defect) that has occurred due to the crime, not merely the cutting and separation of the limb. "Shin" has not yet found its place as a jurisprudential rule. Therefore, the question of this research is to extract and establish the jurisprudential ...
Read More
According to this rule, retaliation of a limb is for the "shain" (defect) that has occurred due to the crime, not merely the cutting and separation of the limb. "Shin" has not yet found its place as a jurisprudential rule. Therefore, the question of this research is to extract and establish the jurisprudential rule of Shin, as a fundamental rule in the chapter of retaliation of limbs. Based on the descriptive-analytical method, this paper presents the evidences of the rule (including the verse of Eteda, the narration of Ishaq Ibn Ammar, and consensus and also explains the characteristics of the rule such as the continuity of Shain, the actuality of Shain, and the similarity of Shin. Organizing the related titles in the form of a rule (based on the jurists methodology) will lead the towards a disciplined practice. Moreover, this rule is worth considering from the perspective of criminal philosophy and its affirmative and customary nature contributes to its validity, discipline, and regularity.
Abbas Zeraat; Mohaddeseh Zeraat; Om Leila Faghih Abdollahi; Zahra Zandieh
Abstract
fact that the verdict should be justified, documented, and reasonable, and its legal and material elements should be stated. Verdicts without any causation do not mean anything and are rarely issued; however, there are several instances in which the verdict is issued incompletely or defectively. Given ...
Read More
fact that the verdict should be justified, documented, and reasonable, and its legal and material elements should be stated. Verdicts without any causation do not mean anything and are rarely issued; however, there are several instances in which the verdict is issued incompletely or defectively. Given the scanty legal literature on causation defects in Iran, the present descriptive-analytic study compares and contrasts the laws of Iran and other countries to examine court and quasi-judicial verdicts. This study introduces the defects of causation along with its implementation guarantee. In addition, it examines the most important examples of causation. To this end, the current study investigates how this principle is used in the Iranian legal system. Fundamental causation defects of a verdict can invalidate it although the passed laws do not explicitly state this opinion. The findings indicate that causation invalidation could be considered as a judicial invalidation since evaluation authorities, e.g., appeal courts, the supreme court, and the administrative court of justice, are responsible for detecting fundamental detects.
Mohammad Ebrahim Shams Nateri; Farzad Tanhaei
Abstract
The knowledge of the occurrence of the result means the customary knowledge of the perpetrator as a result of his committed behavior is one of the constituent elements of the spiritual element in restricted crimes. This is referred to in indirect law as indirect or subordinate intent, while its essential ...
Read More
The knowledge of the occurrence of the result means the customary knowledge of the perpetrator as a result of his committed behavior is one of the constituent elements of the spiritual element in restricted crimes. This is referred to in indirect law as indirect or subordinate intent, while its essential and independent role in the intent of the outcome should not be overlooked. As in cases where the perpetrator of the world to the occurrence of the result, has no intention of the result. This poses a serious challenge to setting a standard for the knowledge of the occurrence of the result and makes the importance of studying it in Iranian criminal law a necessity. In some cases, it is difficult to distinguish between intentional and unintentional crimes. In some cases, it is difficult to distinguish between intentional and unintentional crimes. In some cases, it is difficult to distinguish between intentional and unintentional crimes.
Mahmood Shaterian; Javad Yahyazadeh
Abstract
Law and legislation, if not the most important issue facing modern man and government, are one of the most fundamental. In its original form, although it originates and is born through the legislature and through the deliberation and consultation of a large number of people's representatives in parliament, ...
Read More
Law and legislation, if not the most important issue facing modern man and government, are one of the most fundamental. In its original form, although it originates and is born through the legislature and through the deliberation and consultation of a large number of people's representatives in parliament, it is not limited to that and affects various types of human activities and the development of societies. It is clear that the domestic legal system also cannot do without deep thinking about the characteristics of law, in order to facilitate the effective and efficient functioning of human relations on the one hand, and to benefit from it in a native way and in accordance with the requirements of Iranian-Islamic society on the other hand. Correct analysis of the characteristics of law in the context of the domestic legislative system and efforts to represent and repair its shortcomings, of course, requires an examination of the "General Policies of the Lawmaking System". The results of this article, using a normative method, examining official legal documents and collecting information through library resources, show that with the exception of the three components of "Sharia principles", "General policies of the system" and "Demands of the leadership" which have a special place based on the requirements of legislation based on jurisprudence, other components overlap with the characteristics of law in the modern state. Also, among the two appreciable assumptions about the legal nature of "policies" in the hierarchy of domestic norms and with emphasis on "legal logic", the requirements of the "command-oriented system" and finally the "rule of law", it is possible and necessary to consider a place below the constitution and ordinary law and of course above government regulations for it.
Farzaneh Radmehr; Ali Rezvani; Hamid Masjedsaraie
Abstract
Juvenile delinquency is one of the issues that criminal policy inevitably affects by defining and determining its specific principles. This signifies a distinct criminal policy towards juvenile offenders, as one of the bitter fruits of contemporary industrial societies is juvenile delinquency, where ...
Read More
Juvenile delinquency is one of the issues that criminal policy inevitably affects by defining and determining its specific principles. This signifies a distinct criminal policy towards juvenile offenders, as one of the bitter fruits of contemporary industrial societies is juvenile delinquency, where individuals have not yet started their social life but have been tainted by various social, cultural, political, and other factors, leading to the destruction of their lives. Dealing with juvenile crimes leads lawmakers to provide special support for them. Therefore, addressing juvenile delinquency requires the existence of a specialized judicial system distinct from the legal system for adults. A comparative study of Iran and England shows that, just as in England, children and adolescents are entitled to such support, in Iran, the necessity of reforming and educating these individuals violates the intended criminal laws, but Iran's laws do not provide a cohesive approach to protect and support children and adolescents in various stages of the legal process, especially in preliminary investigations. In contrast, England has adopted many considerations for dealing with these individuals and has provided appropriate guarantees for them. This article seeks to answer the fundamental question through a descriptive-analytical method: What are the similarities and differences between Iran's criminal policy and England's criminal policy regarding juvenile delinquency? Iran should also consider the strengths and positive aspects of the changes in the laws of other countries such as England in the field of differential criminal policy towards juvenile offenders, fundamentally revising the stages of trial, prosecution, and implementation of sentences for delinquent children and adolescents, and emphasize laws on crime prevention and alternative punishments with a focus on non-repetition of offenses.
Abdolreza Farhadian
Abstract
Xenotransplantation, or implantation of animal organs into human bodies, is one of the recent significant advances in medical sciences. This study uses a descriptive-analytical design to examine the legitimacy of this phenomenon in light of Fiqh and Iranian legal system. The results indicate that adopting ...
Read More
Xenotransplantation, or implantation of animal organs into human bodies, is one of the recent significant advances in medical sciences. This study uses a descriptive-analytical design to examine the legitimacy of this phenomenon in light of Fiqh and Iranian legal system. The results indicate that adopting a traditional approach may prevent decreeing a permission for this phenomenon. However, taking an intentional approach to Fiqh enables going beyond traditional approaches and consequently decree a permission. The legitimacy of the xenotransplantation phenomenon can be justified in light of important principles such as the principle of correctness, the no-harm rule, and the principle of self-preservation and healing. There is no evidence in Fiqh forbidding xenotransplantation; thus, everyone is supposed to save themselves from harm and attempt to cure possible diseases. Defects in any organs of the human body could be considered as a clear example of a disease, thus justifying the process of xenotransplantation for curing a disease.
SeyedJavad Seyedi Jajarm; Vahid Payan; Neda Bigdeli Azari
Abstract
In order to create appropriate platforms and implement infrastructure projects, governments currently use contracting contracts with domestic and foreign companies. However, these contracts in some cases face problems such as interpretation and implementation methods similar to other commercial contracts. ...
Read More
In order to create appropriate platforms and implement infrastructure projects, governments currently use contracting contracts with domestic and foreign companies. However, these contracts in some cases face problems such as interpretation and implementation methods similar to other commercial contracts. On the other hand, the nature of contracting contracts requires that disputes be resolved quickly and possibly at the project site. Dispute resolution methods, given their non-judicial approach, can be effective in resolving quickly and reducing litigation costs. One of these methods is resorting to arbitration. The Iranian legislator in Article 53 of the General Conditions of the Contract has determined the Supreme Technical Council of the Planning and Budget Organization as the arbitration body for resolving disputes. However, since the scope of the mentioned Article 53 is within the scope of Article 139 of the Constitution and Article 457 of the Civil Procedure Code, and on the other hand, due to the lack of a specific scope regarding government and public properties, this issue is a matter of debate and disagreement. The purpose of this article is to review the settlement of disputes by arbitration, as well as to explain the nature and implementation of the decisions of the arbitration institution in contracting contracts. In this research, with a descriptive-analytical method, an attempt is made to criticize and analyze the legal capacities of the arbitration institution of the Supreme Technical Council of the Planning and Budget Organization, and also the reasons for inefficiency and the occurrence of disputes in projects are discussed and the conditions and methods of dispute resolution in FIDIC are stated. In addition, the scope of acceptance of to disputes of contracts in the specific sense that have the general conditions of the contract attached to them and the method of accepting and enforcing the awards issued by the arbitration institution of the Planning and Budget Organization are reviewed and analyzed.
Mohammad hosein Roohi yazdi; Seyyed mohamad reza ayati; Asghar Arabian
Abstract
Valid custom approved by the Shari'ah is one of the evidences and tools for deducing Islamic rulings. In some cases, it is the most important and sometimes the only document for responding to the daily needs of society in the field of ijtihad (jurisprudential reasoning). The Shari'ah has approved the ...
Read More
Valid custom approved by the Shari'ah is one of the evidences and tools for deducing Islamic rulings. In some cases, it is the most important and sometimes the only document for responding to the daily needs of society in the field of ijtihad (jurisprudential reasoning). The Shari'ah has approved the custom of custom in non-worship matters. Since rational presumptions do not need to be authorized by the Shari'ah, their rationality suffices for their authenticity. This is because the audience of religious rulings are the common people, and the religious orders have been established for them to live better lives. Entrusting the diagnosis of issues to specialized customs is effective in many cases and leads to uniformity in the construction of logic. The custom in question is a precise and tolerant custom that is carefully adapted and recognized. In this case, there is no prohibition in the Shari'ah. It cannot be said that a custom with this characteristic, which is a product of rational nature and as a general theorem of proof, is a proof in the time of the presence of the Infallibles (peace be upon them) and not a proof in the age of absence. On this basis, custom is one of the evidences and tools that can be used to deduce Islamic rulings.
Hedyeh Habibian; Alireza Yazdanian; Mehrab Darabpour; Seyed Mohammadreza Ayati
Abstract
Traditionally, legal texts and contractual terms have been the determining factors in shaping the behavior of contracting parties in contractual relationships. However, in recent decades, legal scholars have debated the possibility of using unwritten principles and norms to modify contractual relationships. ...
Read More
Traditionally, legal texts and contractual terms have been the determining factors in shaping the behavior of contracting parties in contractual relationships. However, in recent decades, legal scholars have debated the possibility of using unwritten principles and norms to modify contractual relationships. One of the most prominent examples of these principles is the commitment to good faith. This commitment is an unwritten ethical and legal principle that refers to the duty of contracting parties to act reasonably and consider each other's interests and expectations without unreasonably jeopardizing their own interests. It is originally a Roman legal concept and a general rule that is applied in various contractual areas, such as employment contracts, trusts, e-commerce contracts, and commercial cooperation contracts. This research aims to examine the concept of the commitment to good faith in the Nordic legal system (Scandinavia or Northern Europe, including Finland, Sweden, Norway, and Denmark) and the Islamic legal system using a descriptive-analytical method and relying on library resources. The commitment to good faith in Shia jurisprudence, which is the basis of Iranian law, has not been recognized as an independent principle and source of obligation. However, the general principles of custom and humanism in law, the concept of the aforementioned commitment, its results, and the obligations arising from it can be inferred from the discussions of fraud, deception, Najsh (auction bidding to raise the price), Talaqi Rokban (intercepting a traveler to buy goods at a lower price), and so on.
Zahra Feyz
Abstract
The legislator's approach in all regulations related to intentional murder in the Islamic Penal Code has been that the right of retaliation for the heirs of the victim is a definitive right, and receiving Diyya (blood money) is only possible with the consent of the killer. Although the choice and acceptance ...
Read More
The legislator's approach in all regulations related to intentional murder in the Islamic Penal Code has been that the right of retaliation for the heirs of the victim is a definitive right, and receiving Diyya (blood money) is only possible with the consent of the killer. Although the choice and acceptance of the definitive view was due to its popularity, its acceptance led to the abuse of some murderers in some cases of murder, such as the execution of retribution in cases of paying excess Diyya, and the waste of the victim's blood. These reasons led to a change in the position of the legislator in the 1392 Penal Code. In this change of approach, the definitive theory was accepted as a principle in intentional murder, and to solve practical problems in cases where the retributionof the killer was conditional on the payment of excess Diyya by the heirs, the optional theory was accepted. This is because sometimes the heirs were not able to pay the excess Diyya, and the killer was not willing to compromise. Since according to the definitive view, it is not possible to receive Diyya without the consent of the killer, the blood of the victim was at risk of being wasted. Now, the legislator has been criticized for accepting the optional view and following the less well-known opinion and basing it on it. This research has concluded that adopting a dual view based on the narrations and the rule of "La Yabtol" is free from any difficulty in order to prevent the waste of Muslim blood.
Abdollah Jalili; Davood DadashNezhad Delshad; Morteza Barati
Abstract
All members of the society have a responsibility to be cautious towards each other and must observe personal and social hygiene during the outbreak of infectious diseases so as not to cause its transmission and spread to others and other members of the society. Examining the jurisprudential and legal ...
Read More
All members of the society have a responsibility to be cautious towards each other and must observe personal and social hygiene during the outbreak of infectious diseases so as not to cause its transmission and spread to others and other members of the society. Examining the jurisprudential and legal verdict of non-observance of hygiene against emerging infectious diseases and the guarantee and criminal responsibility of its transmitter is of great importance. Non-observance of personal and social health against various diseases, including emerging diseases, based on the rule of sanctity of self-harm, the rule of avoiding possible harm, the obligation to save life, the rule of negating harm, the rule of maintaining order, and the principle of caution is prohibited. be Also, the carrier of emerging infectious diseases is the guarantor based on the rule of wastage, the rule of attribution, the rule of respect, the rule of negation of harm, the rule of commitment to safety and the rule of commitment to the safety of conventional care, and the retribution of the carrier of the disease in case of death is received. The doer has been excluded because in intentional murder, supervision and the predominance of lethality are conditional verbs, if these two are the problem here. Also, based on some of the above-mentioned rules and international protocols and health regulations, any act or omission, carelessness and negligence that causes injury as a result of the occurrence and spread of various diseases and damage to the environment, including water, soil, air and sea pollution, is prohibited and guaranteed
Seyyed Mohamad Vahid Tabasi Haeri; Movahhed Davoudi
Abstract
In the matter of inheritance division among nephews and nieces, most فقها (jurists) uphold the rule of "Tafadol" and consider the inheritance share of males to be twice that of females. However, according to Ayatollah Khouei's view, in the absence of a specific proof, one should refer to the principle ...
Read More
In the matter of inheritance division among nephews and nieces, most فقها (jurists) uphold the rule of "Tafadol" and consider the inheritance share of males to be twice that of females. However, according to Ayatollah Khouei's view, in the absence of a specific proof, one should refer to the principle of equality, and the arguments for the rule of "Tafadol" are not capable of being extended beyond their specific cases. The main question is what are the jurisprudential foundations of Ayatollah Khouei's view in this regard? Considering that no specific basis has been found for his view, an attempt has been made to argue based on Ayatollah Khouei's jurisprudential principles, such as the invalidity of consensus) based on a single hadith, the invalidity) and non-determinative nature) of practical fame, the invalidity of the narrations of the book "Fiqh al-Ridha" and "Da'a'im al-Islam", and the non-universality) of the rule of "Tafadol". In addition to rejecting the major premise of the validity) of consensus based on a single hadith, he also raises a minor premise objection and rejects the very existence of consensus in this matter.
Ali Rashidi; Maryam Aghaei Bejestani; Mohammad Rohani Moghaddam
Abstract
Environmental crime, which includes any harmful verb to the environment and today is interpreted as « green criminology, and the framework of theoretical discussions related to it is always the subject of discussion domestic Science and International Documents. In this article, with a descriptive-analytical ...
Read More
Environmental crime, which includes any harmful verb to the environment and today is interpreted as « green criminology, and the framework of theoretical discussions related to it is always the subject of discussion domestic Science and International Documents. In this article, with a descriptive-analytical look at the legislative background of these crimes, the legal foundations of green crime and, more importantly, the، The challenges of tackling green crime are explored in accordance with existing laws and in the discourse of criminal policy in the field of criminal policy, it is concluded that Iran’s criminal laws regarding the treatment and dealing with this branch of crime، It requires the establishment of strategic laws and the determination of policies and policies appropriate to pathological implementation with differential policy making due to the complex and multi-dimensional nature of this category of crimes؛ Differential proceedings, on the one hand, and humiliation of the principle of public participation, on the other hand, ensure the achievement of the situation of proportionate understanding in dealing with this phenomenon.
