فهرست مطالب

فصلنامه حقوق اسلامی
سال نهم شماره 4 (پیاپی 35، زمستان 1391)

  • بهای روی جلد: 60,000ريال
  • تاریخ انتشار: 1391/11/29
  • تعداد عناوین: 6
|
|
  • Ahmad Hajidehabadi* Page 7
    One of the differences between civil and penal confession is that conditional confession about civil affairs is not divisible while it is not the case about penal confession. Criminal confession is divisible because of the freedom of judge in evidence assessment being a result of immaterial evidences system. In the present article, we first explain the concept of “divisibility” and then review the above claim. It seems conditional confession is divisible in both penal and civil affairs and based on both immaterial and legal evidences systems.
    Keywords: Conditional Confession, Compound Confession, Immaterial Evidence System, Legal Evidence System, Conditional Confession Concerning Murder, Inconsistent With Confession, Non, Simple Confession
  • Mohammad Salehi Mazandarani* Page 37
    Suretiship (kifalat) is one of security agreements and is a contract by which one party stand surety for the appearance of a third party. Currently, suretiship (kifalat) is rarely used in civil matters, while in criminal matters it is one of the attachment measures set out by article 132 of the Criminal Procedure Act according to which, in order to have access to the accused, the judge may order one of the attachments. According to article 740 of the Civil Law Act, if surety (kafil) fails for the appearance of the third party (makful) at the time and place which surety has promised, he will be liable to incur the liability being proved upon the third party (makful). The said article provides for the liability of surety with respect to makful's debt, although according to art. 734 surety has just stood surety for the appearance of the third party. The question is whether article 740 still stands general and applies to all cases where the surety fails to fulfill his obligation for some reason. In this paper, it will be demonstrated that the generality of article 740 of the Civil Law Act is inconsistent with the principles and rules of Fiqh and the opinion of the vast majority of Fiqh scholars.
    Keywords: Surety (Kafil), Suretiship (Kifalat), Beneficiary of Suretiship (Makfulun Lah)
  • Gholamreza Peyvandi* Page 61
    Punishments in the Islamic penal system are divided into two parts: for determined crimes in which the Sharia specifies the cause, type, degree and quality of the crime, and for undetermined crimes in which the decision is granted to Islamic ruler. Considering the fact that the Islamic penal rules are part of the Islamic rules regulated in line with the goals of religion, the question is whether criminalization and punishments are set rules especially in respect of their type and degree, or they are not fundamental but combating crime is the basis in Islamic criminalization. In this article we will review different views including New Mu􀀀tazilite taking into account the totality of Islamic penal system and investigate Islamic penal rules considering principles and bases. Islamic penal system is divided into two parts: the first one is determined penalties system including various kinds of penalties such as Hudud and Qisas. The second one is undetermined penalties system. This kind of penalties is subservient to time and place in various aspects and are susceptible to change.
    Keywords: Criminal rules, Historicism, penalty, criminal law, Islamic Penal System, New Mutazilite
  • Mahdi Hasanzadeh* Page 95
    It's possible that presence of witness before the judge for giving testimony be excused because of reasons such as absence, illness, travelling or imprisonment. In such cases, the witness on witness has been considered acceptable in Fiqh. In articles 1320 of Civil Law Act and 231 of Civil Procedure Act, witness on witness has been accepted in such cases. Despite this, articles 244 and 245 of Civil Procedure Act, provides for hearing testimony outside the court, in cases of testimony being excused or the presence of the witness in another court because of his residence in its jurisdiction. Therefore, the question is whether in our law the effect of so being excused is: (a) hearing of witness on witness or (b) hearing of testimony outside the court or by another court or (c) both. The study of the mentioned articles and article 246 of Civil Procedure Act reveals that, one should differentiate between cases of reference to the testimony under its very title and as legal and sharia qualified evidence, and cases of reference to the testimony not under qualified testimony but under other headings like judicial indication.
    Keywords: Witness, Testimony, Witness on Witness, Giving Testimony, Hearing of Testimony, Witness Being Excused
  • Mohammad Adibi Mehr* Page 113
    The rule of unsubduability (Nafye Sabil) is an important legal rule being applied to many Fiqh chapters such as worship, transactions and many individual or social rules. The question of this paper is on the ostensible ambiguity of this rule and alike. It seems prima facie that the rule rejects outward predominance of the unbelievers in the real world in an indicative wording, whereas such phrases must be interpreted as imperative, meaning in this case unbelievers must not have predominance over believers. "Sabil", the key word of the rule, is any means of predominance and Fiqh scholars regard it with the terms ownership, religious authority, absolute and legal prevalence. The aim of this paper is to demonstrate the concept of legal prevalence as to the content of unsubduability rule. Emphasis on the prohibition in the rule wording is inferred from indicative language as far as thina mode of expression supposes predominance as not existent and regards the omission of the act as the will of Sharia.
    Keywords: Religious Authority, Believer, Unbeliever, Sharia Rule, unsubduability (Nafye Sabil)
  • Jalaladdin Ghiyasi*, Ali Doroodi Page 137
    We deal here with "Legal Presumption" according to its definition in The Civil Law Act 1307 AH. The scope of criminal presumption involves both the crime elements (actus reus and mens rea) and other aspects of criminal law such as criminal procedure and enforcement. Legal presumptions of criminal law play a role different from that of civil law due to the function and aim of criminal law and also principles of innocence and narrow interpretation. Accordingly 1. Legal presumptions in criminal law are considered as indicators of and paths to facts, so boundaries fade in terms of disparity between legal presumptions and judicial ones.2. Whenever there is no assertion by legislator for distinguishing between confutable legal presumptions and unconfutable ones, the more consistent solution with presumption of innocence and interpretation in favor of accused person must be adopted. This has led to the knowledge of law presumption being questioned in the field of criminal law, while the presumption is used as a definite and incontrovertible presumption in the world of law. So that although the ignorance of the law nowadays is not an obstacle to criminal conviction but is considered as one of the mitigating factors.
    Keywords: legal presumptions, judicial presumptions, legal fiction, practical principle