مجله پژوهش های فقهی
سال نهم شماره 1 (بهار و تابستان 1392)

Drawing up the insurance contracts by insurance companies has led to disregard policyholder''s rights. This means that insurers by inserting unfair terms in insurance contracts seek to make a contract that they gain special privileges for themselves. Jurists as main opponents of injustice regard commitment not to insert unfair terms as one of the insurer''s pre-contractual obligations in insurance contract. Insurance law and commercial insurance bill is silent in this regard. But considering principle of justice in Imamiah jurisprudence، this obligation can be considered for the parties in all contracts. Principle of justice and equity can be effective to solve many judicial problems. Also it is seen a tendency to equity in some decisions of courts. In this paper we seek to study concept of unfair terms and its instances in insurance contracts. At the end، considering some rules and regulations it can be said that such unfair terms are invalid in insurance contracts.

The amount of reliability on outward aspects of the Quran and the role of traditions in it has been one of the linguistic basics of the Holy Quran and it has allocated to itself a large volume of principled and hermeneutical subjects. We faced two sets of statements in teachings of Imam Ali (pbuh). The first category are the evidences that it may be understood from them authority and validity of outward aspects of the Quran and their independence in understanding and inference. The second category are the evidences that it is mentioned in them multidimensional nature of the Quran and requirement to exegesis of Household of Prophet Muhammad (Ahl Al-Bayt); so it may be understood from them lack of authority and invalidity of outward aspects of the Quran and their dependence in understanding and exegesis. Criticizing these two understandings، author of this paper believe that after checking the evidences and despairing of them (not necessarily narrative evidences)، outward aspects of the Quran have authority and validity and it can be trusted to them. This is the subject that it can be understood and derived relying on the teachings of Nahj Al-Balaghah.

Human perfection and happiness depends on thinking and reasoning، and rationalism is defined as invitation and encouragement to contemplation and deliberation and also avoidance of restriction from wisdom and thought. Many Islamophobians believe that Islam is incompatible with rationalism. The main question in this paper is that in Islam، accomplishing this in discussions of «principles of jurisprudence» which is the science of Inferring jurisprudence and one of its resources is wisdom، how much credit is allowed for rationalism? The purpose of this paper is to prove the existence of rationalism in a high level in «principles of jurisprudence». Based on the definitions of rationalism، «principles of jurisprudence» has been one of the sciences that has been founded to remove the barriers of reasoning and explore the reality in Islam. To fulfill this objective، a descriptive and analytical research in this field has been done and fundamental issues related to this subject have been raised. Finally، we have concluded that not only is not «principles of jurisprudence» opposed to rationalism، but it has also offered the solutions، rules and regulations for thinking. It takes rationalism away from methods that have not rational credit. It also extends the scope of wisdom and it considers wisdom as one of the resources of inference of jurisprudence.

Privacy is the realm and territory of every person''s characteristics and behaviors which is not disclosed to the public and in the first stage، it is allocated to a particular person which he is not also inclined to disclose this privacy to others. People cannot tolerate any kind of others'' entrance and supervision on this domain. They indicate reactions to the strangers'' interference. This concept has not been discussed independently in Islamic and Iran''s laws yet. Iranian legislators، considering the lack of past records about this structure in Iran''s jurisprudence and laws، have just dealt with recognition of some evidences in an imperfect manner. As one of the most primitive evidences of the truth on privacy، physical privacy has been dealt with sporadically in different laws and regulations. The present study attempts to touch upon the conditions under which the legislator defends people''s physical privacy in Shiite jurisprudence and the related laws in Iran and to discuss the protection bill of privacy.

Imamiah jurisprudents have disagreed about the requirement of successor''s justice in contractual will from past to now. Some of them have considered it as the condition of accuracy of will، and others consider it ineffective in accuracy and inaccuracy of will. Considering that this issue has much scientific and practical results and that if we accept any of these two views، our understanding of the successor and his essential conditions will be different، it seems necessary that the opinions and reasons raised by agreeable and disagreeable jurisprudents are examined and the origin of differences is extracted among their writings، and after comparing their reasons and basics، the more accurate theory is chosen، and thereby a comprehensive، accurate and exact view about the requirement of successor''s justice is accepted.

There are some activities which have not been forbidden in Shari''a، but they are considered as guilt by government and penalties are also imposed for them. What is the nature of these governmental penalties? There are two main views. Some state that penalties fall under Ta''zir، which is kind of penalty defined by Shari''a. Others declare that penalties are governmental legitimized by Supreme Leader. Regarding documents of Shari''a in the field of Ta''zir we can argue that Ta''zir is restricted to those activities considered as «sin» by Shari''a and does not go further. Therefore، as the sentences legislated by the government lacks the main element of Ta''zir، i. e. «to be a sin»، this kind of penalties can not be categorized under Ta''zir naturally. Hence، we should classify this sort of punishments under some other names such as governmental or legislative penalties and so on; and subsequently، the rules that apply to them will differ from the rules of Ta''zir.

Principle of justice and equity is a term، although it is seen in recent jurisprudents'' writings، which have not been explained clearly at all. Therefore، some of the jurisprudents do not accept this term as a principle; some others accept it as a principle and consider its implementation in case of being a special reason; and other group of jurisprudents accept it as a principle but limited to a specific subject. In this paper، it is tried to search in legal and jurisprudential sources collect valid documents to prove this principle، and then to specify framework and scope of its implication to reach an effective rule in the process of inference obviously.