نشریه فقه و حقوق خانواده
پیاپی 43 (پاییز 1385)

Shiite jurisprudence is indebted to the unique efforts of Imam Sadiq(P.) for it’s comprehensiveness and special strength from among other scholors. The depth of his insight and comprehensive planning and complete knowledge, brought about means so that the Shiite became proverbial among mankind's learned societies throughout time. Before the era of the Sadiqeen, the lack of access to jurisprudential methods was considered a weakness for Shiites. Although the foundation of this science was laid by the Holy Prophet (PBUH) and Amir AlMomenie(P.) but the hostile policy of Ommayed,lead to thier instability.Therefore Imam Sadiq(P.) introduced a scientific and jurisprudential movement in such a way to challenge the tyrant rulers and oppressors with logic in order to change their way of thinking.In this method he classified sciences with logic among them created discipline, and introduced jurisprudence as a rule of law,presented a highly innovative approach and abundant scientific and technological information with monotheistic thought,to increase the number of educated experts and established an Islamic structure and principle in the scientific text. This article addresses some of the above mentioned characteristics of jurisprudence from scientific and political points of view in order to challenge and fight against those tyrants and oppressors.

The right to sexual pleasure is one of the fundamental pivots of establishing a family. According to the majority of jurist the condition contrary to this issue is against the essence of the marriage contract and is the cause of making the marriage contract invalid. Obedience has two meanings: Common and Special: Special obedience means that a woman accepts sexual intercourse with her husband and common obedience means that a woman performs her obligations and duties toward her husband, in accordance with tradition and law. Breach (of this contract) by one party, is called delinquency (نشوز), and breach by both parties is called schism (شقاق). Sexual illnesses and sexual perversion are two factors which can have a bad effect on the couple’s sexual relationship. In distinction between sexual illnesses and sexual perversions, it must be said that anytime the issue which interests man for satisfying sexual need is something other than the opposite sex, the person is sexually deviated but sexual illness is generally accepted as an inability of ejaculation, impotent and frigidity. Sexual illnesses such as, castration which is considered a physical disease are reasons for the nullification of a marriage, which has drawn the attention of legislators. Although sexual perversion is an issue which is not clarified directly by law makers, but according to article 1130 of the civil law it can be considered as a kind of hardship which give the right of divorce to the wife.

The issue of imprisonment in the contemporary world has been one of the complexities of the judicial system. The governments are faced with many problems in civil law,private law and common law.The issue of imprisonment not only has resulted in not preventing crimes but rather it has created more problems and crisis in different parts of man’s life in general and among the family law in particular.From a religious point of view there is no restriction in making good use of prisoners to work.On the other hand imprisonment is not considered a common way of punishment in Islamic law.Yet there are more than 400 cases which law makers have considered prison as a punishment,therefore it is necessary to analyze and study the imprisonment law, particularly law related to a person in debt should not be considered as a criminal.In this article the nature of the crime and the necessity of prison as a punishment,the history of imprisonment and it’s legal ground in Islam as well as a among religious scholars are studied.Also the implication of prison as a punishment in laws and its detrimental effects on family and society are analyzed.According to Quranic verses, traditions of the Prophet(P.) and his successors which emphasis on reformatory policies in a judiciary system and penal law code, preventing crimes are also emphasized.

Man is created free. Freedom is one of man’s essential rights. All schools of thought have confirmed this fundamental human right. Anyhow to live in society requires some rules and regulations which might limit man’s freedom. In order to establish order and peace in society the commission and omission of certain acts should be criminalized. To protect the freedom of the individual the ambit of freedom must be clarified. While legislating the jurisdiction of criminal law which deals with penalization of wrongful act, justice and necessity should be taken into consideration. An unlimited jurisdiction of criminal law, may jeopardize the individual fundamental freedom.On the one hand giving too much power to crimainal law which actually gives too much importance to individual fundamental freedom will help create justice and order in society. On the other hand unlimited power of criminal law cause chaos and disturb public order.In this paper the extent of individual freedom versus criminal law is studied.

The prevalence of penal justice has been one of the most important human beings aspirations in the history of mankind which could only be fulfilled in a fair trial that would secure the rights of the plaintiff and the defendant.With a view to positive law, the 34th Principle of Iran’s Constitution declares that:” It is the indisputable right of every citizen to seek justice by recourse to competent courts” and the article 570 of the Civil law has anticipated the sanctions for any violations of this principle right. Further Paragraph 3 of Article 2 of the Covenant on Civil and Polictical Rights which was adopted in 1966 by the UN General Assembly, Article 7 and 10 of International Human Rights Declaration and Paragraph b, of Article 19 of Cairo Declaration hold references to the above mentioned right. Since the right of defendant is secondary to the right of the plaintiff and the legislature considers the right of the aggrieved party to seek justice primary to the right of the accused, therefore in many countries there is a kind of mechanism to guarantee the right of the plaintiff, as the injured party. This paper deals exclusively with the right of the accused in the course of a just trial and some solution are also presented in terms of classification of some sorts of crimes, which could be forgiven by him or her. In the cases such as: release on parole” or “suspended punishment” the plaintiff should be compensated accordingly. There would also be a kind of right to objection for the injured party in above mentioned cases.