فهرست مطالب

حقوق اسلامی - سال دهم شماره 2 (پیاپی 37، تابستان 1392)

فصلنامه حقوق اسلامی
سال دهم شماره 2 (پیاپی 37، تابستان 1392)

  • بهای روی جلد: 60,000ريال
  • تاریخ انتشار: 1392/05/24
  • تعداد عناوین: 6
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  • Sayyid Hasan Shobeyri Zanjani*, Meysam Nemati Page 7
    Moral Rights deriving from intellectual creations is to protect noneconomic interests of the creator. As there have been very limited studies on the economic aspects of the intellectual creator's rights in Imami Fiqh, one cannot find deep investigation into the moral rights in Fiqh. The Islamic foundations of disclosure right as the most famous instance of moral rights is the main subject of this research. As introduction, we will have a quick overview on the concept and history of moral rights and disclosure right and its position in the western legal systems (civil law and common law). Then based on a descriptive - analytical approach, arguments from a Fiqh standpoint are presented in order to clarify the legitimacy of disclosure right. Evidences such as verses emphasizing justice (Adl) and equity (Ensaf), the hadith (tradition) of “Almajalesu Bil- Amanah”, rational argument of the freedom of author in the disclosure of his work, Valiyye-Faqih authority and Fiqh general rules such as the rule of social system preservation. All these arguments are followed by of major and minor premise criticizations such as being narrower than the claim and posing reversal answers. Finally, some of these arguments such as verses forbidding the disclosure of mysteries are approved of and their Implications has been analyzed.
    Keywords: Moral Rights, Disclosure Right, Intellectual Property Rights, Islamic Foundations
  • Mohammad Arab, Salehi* Page 45
    Explaining the nature and characteristics of governmental mandate and the methodological resultant of it is one of the most important and problematic topics in present times. After having a short review on the nature of governmental mandate, this paper will focus on the methodology through which a governmental mandate may be reached by the ruler and proper deductive phases as from determining subjects. Wewill through the debates approve of some propositions about the nature of governmental mandate and its methodology. Such as the fact that governmental decree is not one of sharia rules, but a variety distinguished from that and that being temporary is not an intrinsic property to a governmental mandate. Part of the process through which a governmental mandate may be reached is of deductive Fiqh and part of it is based on inferring the subject matter or instances. So there is no role for imitation in this part, and the ruler can adhere to all rational methodologies even analogy and Istihsan.
    Keywords: Governmental Mandate, Governmental Fiqh, Methodology. Analogy, Istihsan, Expediency, Identifying Expediency Instances
  • Farajullah Hedayatnia*, Sayyid Javad Sayyid Alizade Ganji Page 73
    Husband’s refusal to fulfill his marital duties (Nushuz) is one of the important issues in Fiqh and family law having its roots in the Holy Quran. the husband’s refusal to fulfill his marital duties just like that of wife’s is stipulated in a verse in the Holy Quran. Despite literal perspicuity of the concept of "Noshuz" (husband’s refusal) there is no unanimous approach to the concept and its instances in family Fiqh as well as domestic laws, so far as this term is just used to refer to wife's refusal in Iranian family laws. The present paper is an attempt to explain the concept, instances and requirements of Noshuz in Fiqh and then review its status in the family law of Iran.
    Keywords: Fiqh, family law, Noshuz (refusal to fulfill marital duties), husband
  • Ali Tavallayi*, Moein Farzane Vashareh Page 99
    One of the rules that is appealed to by Fiqh scholars in contracts such as sale, lease and loan ('Ariya) contracts is the rule of "Erghe-Zalim". The rule being based on Islamic narrations and reasonable custom, implies that one may take whatever cruelly and unjustly captured fromhim and the oppressor has no right in keeping it and in regard to any damages. Therefore, based on accepting the rule and considering its implications, being in possession of a place with the consent of the owner, would cause some rights for the possessor. This paper studies the rule of "Erghe-Zalim" in an analytical approach and reviews its implications in contracts and liabilities resulting from its application and also the differences between this rule and the rules of "Al-yad" and "Ehteram". It should be noted that the rule has priority when in conflict with the "La-Zarar" rule.
    Keywords: Rule of Oppressor's Accessions (Erghe Zallem), Liability, La, Zarar, Alal, yad, Sale, Lease, Fiqh of Agriculture
  • Sayyed Mahdi Mirdadashi* Page 121
    One of the indisputable principles in Fiqh and law is compensation for damages caused by acts of a legal and natural person. The state, in its general sense which includes all state institutions (triple pillars and nonstate public institutions), are not exempted from this principle. According to existing laws, including article 11 of the Civil Liability Act 1339 AH, the state is considered in its limited sense and does not include all state pillars and inter alia non-state public institutions. Complying with an obsolete traditional theory in the some other legal systems, the said article divides the acts of the state into acts of dominion (acta jure imperii) and acts of management (acta juregestionis) exempting the state from liability in acts of dominion, whereas immunity of the state in acts of dominion is not justified in Fiqh and jurisprudence, except in compliance with the rule of beneficence. Such necessities require that civil liability of public bodies bill be submitted to the parliament to the better coordination with religious teachings and along with global developments in the field of civil liability, although the bill has not been passed since. This paper tries to examine the question from a comparative perspective and offer proposals in this regard.
    Keywords: Civil Liability, State, Acts of Dominion, Acts of Management
  • Muhamad Javad Fathi*, Farshad Changaie, Hamed Rahdarpoor Page 147
    It is possible that despite one enters into the realm of material elements of a crime and completes all material phases or the criminal path the result is not achieved. If the cause of executive operation being ineffectiveness is the impossibility of crime to be realized, the conducted act is considered an impossible crime. So far as most scholars consider So far as most law scholars consider impossible crime, based on this provision, a synonymous to impracticable crime. However, if one looks carefully to all impracticable acts and note the reasons for impossibility of a crime, she would be skeptical in these two being synonymous, as we may distinguish impossible crime from "simply impracticable acts". So we may not consider any impracticable act, an impossible crime under this approach, but the crime is considered an impossible crime when those acts done in order to commit a crime by the end and despite performing executive operations, the crime realization is impossible. Therefore, an emphasize on the necessity of a criminal action being impracticable, has resulted in distinguishing between impossible crime and attempted or abortive crime on the one hand, and the requirement of entering into the executive operations, limits the scope of the impossible crime on the other hand. Article 122 of the Penal Act 1392 AH, provides some criminal reaction against impossible crime, while "simply impracticable acts", due to non-realization of any attempted executions lacks criminal attribute. So it's necessary to have a clear grasp of the concept of impossible crime and distinguish it from impracticable acts. This article distinguishes between impossible crime and any similar acts being simply impracticable, but the condition of entry into executive operation does not exist about them.
    Keywords: Impossible Crime, Simply Impracticable Acts, Incomplete Crime, Executive Acts of Crime (Attempted Crime)