فصلنامه حقوق اسلامی
سال دوازدهم شماره 3 (پیاپی 46، پاییز 1394)

Repentance is one of the factors leading to collapse of punishment or decreasing it. This valuable institution which shows importance attached to correcting criminals through implementing punishments is of a cordial nature and, of course, it has its own terms and conditions in religion including attempts to compensate one’s past actions.
In an innovative way, the Islamic Penal Code (approved 1392/2013) brought this valuable notion in the Iranian Penal system in a systemic way. Though valuable on its own right, this seems to be formulated somehow hastily and without taking into account all aspects. In what follows and while assessing measures taken in the above Code for institution of repentance, the authors have introduced some suggestions among which one can mention the followings: necessity of forecasting collapse or decrease in religious punishments (ta‘zirat), specifying some standards for accepting one’s repentance, forecasting the impact of repentance if the criminal repeats crimes for which religious punishments have been predicted, and forecasting religious punishment if penance is collapsed because of the criminal’s repentance in some serious penance crimes such as corruption in Earth or penance theft. Such suggestions seem to be among the most important solutions to solve problems in the Code as well as to take into account the institution of repentance in a more efficient way.

The collection of objective conditions in the trial process is a criterion for a judge to evaluate whether or not it is fair. Accordingly, the process should minimize the possibility of partiality. Therefore, the parties must be on the same status and the judge must pay equal attention to them. And this state of affairs is of paramount importance in the Islamic religious texts and legal literature. But because of putting the necessity of this point under question and stipulating the possibility of discrimination between parties in the event of differences in religion, it has been overshadowed. Reviewing some religious texts and scholars words, this article is to prove the necessity of equality between parties at the hearing regardless of any titles from the perspective of holy legislator.

The major contents of this article include the nature, principles, effects and finally probative value of assuming knowledge of law. The basis of legislating this presumption as a conclusive legal one (and not a fiction) is the public policy in preventing irregularity and confusion. It is justified by ‘inwardness state of knowledge and that it is mental’ that makes it difficult to be proved. Although it is considered to be unfair to blame someone who is ignorant of law ,in ‘fiqh‘ sources, every reasonable person is presumed as being aware of law, according to the appearance, unless under certain conditions. This presumption is rebutted in three cases, due to its nature and its probative value according to the Islamic Penal Code: I-when a perpetrator is ignorant of non-criminal provisions such as civil regulations or administrative provisions which are efficient for a crime to come into existence. In these cases, mental element (mens rea) doesn’t exist. II- When the perpetrator’s ignorance is based on own his failure (not his fault). III- In “had (penance)” crimes and in “tazir” crimes (in the strict sense of the term) which are pre-ordained in fiqh; as soon as the accused claims that he was ignorant of law, when it is probable.

In many cases the offender himself/herself is unknown; we know, however, the number of the criminals, so it is difficult to impose criminal responsibility (including responsibility to pay blood-money) to the offender. There are some solutions like: lot, paying compensation from public treasury, compurgation and equal responsibility.
In this study, we discuss lot and equal responsibility according to the old and new approaches of legislator and the conclusion is: there is no position for lot in criminal law and oath is prior than equal responsibility and where there is no way to oath, equal responsibility is the solution.

In the Islamic jurisprudence, gift is introduced as a method of acquiring non-commutative property. Gift is among contracts in which retaking is not possible in the some cases such as gift to the relatives. In this study, after explaining importance of family relations in jurisprudence, definitions of compassion, imminence and parentage are provided according to vocabulary and jurisprudence. There are opinions about relatives in jurisprudence. Famous Fiqh scholars have left specifying instances to convention. Concerning prohibition of retaking gift to parents, there is a consensus and the only opponent is Sayyid Murtada. Concerning donation to children, famous Fiqh scholars say that it`s a prohibited action. Of course, there are other opinions which will be described. Fiqh scholars have different opinions about donation to relatives. Most of Famous Fiqh scholars explain that it is prohibited to retake donation from relatives as well. In this article, attempt is made to explain species benefaction to relatives historically and analytically. In conclusion, the opinion of the legislator has been described and evaluated.

The increasing process of dematerialization of international shipping documents, especially shipping through the sea using electronic instruments, is being increased day by day because of its speed, low cost and accuracy of electronic environment. In this regard, issuing bill of lading as the most important document for shipping goods in electronic form has been constantly the focus national and international legislation projects over the decades. Three important efforts at international level in this field include Bolero regulations, CMI and UNCITRAL that have tried to realize 3 functions of paper bill of lading (including considering bill of lading as a contract for carriage, receipt of goods delivery and ownership document) for electronic bills in hyperspace. Despite to realization of two functions of shipping contract evidence and receipt of goods in regard with replacing paper bill with electronic bill, concerning ownership, majority of authors believe that considering bill of lading as ownership document should be recognized by means of international business procedure as well.