فصلنامه حقوق اسلامی
سال سیزدهم شماره 3 (پیاپی 50، پاییز 1395)

Since many criminals try to find some accomplice(s) to commit crime, there is always some articles in the penal codes concerning participating in a crime or leading it. The Islamic Penal Code 1392/2013 is not an exception and there are some changes made in it as compared with the previous codes. For example, clarification of ‘participation in crimes which should be punished by retaliation or blood-money’, ‘judge’s authority to specify a lower punishment for the weak accomplice’, ‘the way in which punishment may be mitigated,’ and ‘possibility of punishing the leader of criminals for the worst crime the members of group have committed to achieve their criminal goals. Nevertheless, it seems that the legislator can take further steps in this regard. For example, in organized crimes for which the judge is able to specify the maximum or minimum punishment, he may consider all members of a gang whether those who have committed executive operations of the crime or other as participating in the crime. Also, he may clarify the situation of participation in the crimes which should be religiously punished.

With the prediction of a system of restriction on rights and liberties under normal conditions and a system of suspension as well as separation between rights which may be suspended and those which may not¡ the situation of liberties has been somehow clarified in the trans-national system of human rights. Iranian Constitution has forecasted elements which may limit liberties and in the Article 79 has specially discussed emergency conditions and situation of liberties under such conditions. While forbidding proclamation of martial law¡ this article has spoken of necessary restrictions. However¡ it has not specified something as suspension of rights and liberties under emergency conditions. The present article discusses articles of the Constitution to recognize criteria for restricting liberties¡ rigts which may be suspended and rights which may not and¡ generally speaking¡ possibility of suspension of rights and liberties in the Constitution. As a matter of fact¡ the present article aims to provide a clear insight of the situation of liberties under emergency conditions and specify the Constitution’s approach to the right to suspension mentioned in the human rights documents. It should be noted that clarification of the situation of liberties in the Iranian Constitution will greatly help to protect such rights under all conditions and in particular under emergency conditions; and¡ thus¡ the importance ofthe subject will be shown. Conditions necessary for establishing necessary restrictions¡ the right to suspension liberties in the Constitution and specification of the rights which may not be suspended by the government under emergency conditions are among issues discussed in the present study.

Liability of creditors means that each of creditors- which may be two ormore persons- is independently able to collect the whole loan from the debtor. In this way¡ if the loan is repaid to one of the creditors¡ the debtor will be released of his obligation. Since¡ in the Iranian Law¡ obligation is a multi-faceted phenomenon¡ the legislator has not clearly discussed creditors’ liability as waiving obligation and only in some rules has mentioned it dispersedly. Whether it is based on conclusion of contract of attorneyship or a private contract or based on an independent contract or institution¡ liability of creditors will facilitate collection of debt as a result of which the debtor will be released of his obligations towards all creditors. What is collected belongs to all creditors and each of them will collect in proportion to his share. And all of them are entitled to refer to the creditor who has collected the debt.

Sometimes¡ after conclusion of a contract of lease¡ a part or the whole ofthe thing hired is destroyed before or after delivery [of the thing hired]¡ whether the lessee has made uses of it or not. The rule of destruction of the whole thing hired for which one of the considerations is gradually received and in the course of time has been disputed by the jurists. Thus¡ a complete study of this issue is necessary. The jurists as well as the Civil Code are of the opinion that effects of destruction concern future; thus¡ the contract of lease is cancelled once the thing hired is destroyed and the rent should be paid in proportion to the time remained. In cases in which¡ a part of the thing hired has been destroyed after delivery and when the lessee has used it for a period of time¡ according to the Civil Code¡ he has the right of cancellation of the lease in regard to the remainder of the thing hired. The present article¡ however¡ concludes that if the generalities of the Chapter of Options [in Jurisprudence] and arguments for the option of tabaooz al-safqah** are used¡ and if restrictions of the article 483 are removed and tanqih almanat*** is used to infer from the article 441 of the Civil Code¡ it can be inferred that when the lessee is negatively affected by cancellation of the contract¡ he has the option of tabaooz l-safqah to cancel the contract from the beginning once the thing hired is destroyed.

Islam’s legal system has been established independent from other three great legal systems in the world. And this independence can be spoken of in the field of positive differential policies as an important part ofthis legal system and based on several rational arguments. Thus¡ in the present article¡ the author tries to depict the principle of equality in the system of proofs as the primary rule; and then¡ he will use the principle of individualizing as the secondary and particular- in other words¡ exceptional- principle to depict a model of judging proofs in the Islamic Law as well as Iranian Law. As a matter of fact¡ so far¡ these principles have been used together with the principle of equality concerning punishments. In the present study¡ however¡ they have been spoken of in the field of the system of proofs in the Islamic penal law and this shows that development of proofs is not restricted to the severity of crime; and the type of crime¡ victim¡ and sometimes even the conditions of the victim should be taken into account in the differential system of proofs in Islam. Findings of this study and its analyses show that these differential policies¡ as compared to other legal systems such as that of France¡ enjoy a more extensive field; and¡ in most non-Islamic legal systems¡ either there is no such differentiation in positive policies at all or only severity of crime- has been taken as the axis.

In the international documents of human rights¡ concepts such as protection of morals¡ public order¡ public health¡ public interests¡ others’ rights and reputation have been mentioned as restrictions on freedom of speech. In other words¡ no one is entitled to neglect the above-mentioned restrictions claiming that he has the freedom of speech. Declaration of Islamic Human Rights has adopted an approach other than that of other global and regional documents of human rights and has added other cases such as Islamic rules¡ respect to prophets and sacred things and what which may lead to destruction of beliefs to these restrictions to freedom of speech. Because of extending the field of restrictions on the freedom of speech in the Declaration of Islamic Human Rights¡ this declaration has a status different from other international documents; and thus¡ the field of restrictions mentioned in this declaration and the reason behind it should be explicated from the viewpoint of human rights logic. The present writing compares restrictions governing freedom of speech (mentioned in the Declaration of Islamic Human Rights) with other documents of human rights and tries to find the reason behind difference between restrictions in this declaration on the one hand and other international documents of human rights on the other.