فصلنامه پژوهش های فقه و حقوق اسلامی
سال پنجم شماره 2 (پیاپی 15، بهار 1388)

To resolve the conflict of some articles of civil code in Iran (227 and 226) and France (1137 and 1147) must distinct two types of obligation. Duty to achieve a specific result and duty of best efforts. In obligation of the best effort, promisor has to endeavor in the performance of an activity. He is bound to make such efforts as would be made by a reasonable person of the same kind in the same circumstances. But to the extent that an obligation of a party involves a duty to achieve a specific result, he has to achieve that result.To determining the kind of obligation must be regarded same factor: the issue of contract, the terms of contract, the degree of risk in achieving the result and influence of the other party to performance of the obligation.We can see the extent of notice of Islamic jurisprudence, law of France and Iran to this words and the distinction is effective on behavior of promisor.

In this article, the author considers spouse heritage from irreplaceable properties. Shiite jurists have different viewpoints about mentioned issue. And most of them deny it.In this article it is criticized Ayatollah Hashemi Shahroudi ’s viewpoint, the headquarter of judicature, who published his article in Ahl Bayt Quarterly (No. 49).It is obvious that the author writes this article to transfer information and Ayatollah Shahroudi can reply this article.

One of the fundamental and indisputable laws in the Islamic jurisprudence and law is the doctrine of Aqeleh guarantee (paternal relatives of a murderer) which according to that the liability of blood money of mistaken homicide and wound, and whatever is supposed as mistake crimes, like children or mad crimes, is on charge of the Aqeleh of criminal, not the doer himself. In contrast to that is the legal doctrine of "being crimes in person", which is based on rational and narrative proofs, and is equivalent "Vezr" (burden), in jurisprudence, which according to that "everyone is responsible for his(or her) legal act or behavior, and, nobody else is responsible for penalty which based on that act or behavior. As, Aqeleh guarantee is in contrast to this reasoned out doctrine, so, it was, continuously, in attention of jurists. This article, while endeavored to explain the meaning of Aqeleh, and developed its inclusions in compare to its ordinary definitions, has defined the divine law philosophy and conditions of the Aqeleh guarantee. The research concluded that Aqeleh is a governmental judgment which in an especial social condition and in the aim of support synthetic basis of the society was legitimized or divined law by the holy prophet(s),and its survival, during all the times, is depended on those philosophy and conditions.

One of the crucial issues propounded in the field of jurisprudence and law problems concerns children. The age of criminal liability is one of the important issues set forth for discussion. Many of the children reaching the age of religious obligation (puberty) have not reached the required thought and wisdom growth in the field of penal issues. Now, the problem is raised whether the age determined by the Islamic Jurisprudence (Shariah) for the religious obligation can correspond with the same age of criminal liability or it has to be the age of 18 as propounded in international conventions including the Bill of Child Right, and at any case the question is that which age corresponds with legal equity specially the criminal equity. In the penal law, there are important principles which could be considered as constructive of the penal equity. It can be said that executing such principles will realize the legal justice specially the penal equity as the principle of ethical liability based on which, one is liable when being adult, wise and having free agency and being at liberty for his/her actions. Therefore, the child’s criminal liability age is different form his/her religious obligation (puberty) age, and that, in penal liability, in addition to puberty, mental and thought development, i.e. a state of development in which one can fully appreciate penal liability should be considered as well.

Justice is one of the essential conditions for obtaining important status of judgment from the viewpoint of Islam and also Iran legislator has emphasized on jurist justice term. In fundamental law of Islamic Republic of Iran in 163 article of law, it has explained that jurist qualities and terms are determined by general rules or laws according to religious jurisprudence standards. Various laws have been approved in this case and they have utilized these laws in our country judicial disciplines. All of the disciplines have determined the Justice as one of the judgment incumbency conditions. Since determination justice term in jurist has originated from Imam religions jurisprudence and therefore the concept of justice is the same as religions jurisprudence. The judgment status is the most critical social positions. The role of judge and his justice is non-negation and fundamental to confirm right judgment and judicial justice. So, this investigative research is intended to survey the concept of justice religions. Jurisprudence and justice terms reasons in jurist until the necessity of justice term reasons of jurist is explained clearly on Iran present judicial discipline.

Considering Quran and Hadith as the two main sources of the Islamic jurisprudence and religious law, the author proceeds through stoning to death in Islam in this article. With regard to intense reactions of the human rights against execution of this sentence (and similar sentences), the author intends to answer the question that whether it is possible to prevent Islam and Muslims from being weak through execution or non-execution of substituted judgments in spite of maintenance of religious rules?To this end, in addition to investigation of Quran sources and traditions of stoning to death and referring to its historical-religious backgrounds, various scope of valuable viewpoints have been achieved in this connection using request for opinion of the concerned authorities and review of experts’ opinions from prohibition of stoning and non-execution of stoning sentence during the absence of Imam of our time to impossibility of prohibition of execution of such sentence as the divine ordinance.

In this research two subjects have been considered: First; the jurisprudence examination of the Hesbi affairs and their difference with judicial affairs: Hesbi affairs are those which are fulfilled with a spiritual motive and with the aim of development of goodness in society, enjoining that which is good and forbidding that which is abominable are of these affairs, and their difference with judicial affairs is that the investigation of judicial affairs is in the domain of jurisdiction of judicial courts and the existence of these affairs is due to clear proof and oath, and they are mooted in the case of litigation, but the investigation of Hesbi affairs is within jurisdiction of the minister of complaints (Mohtasib) or his deputies and their being is not due to clear proof, oath and establishment of litigation. Second; the examination of this point that if the limits and discretionary corrections are of the Hesbi tasks or of the judicial one?It can be said in response that the limits and discretionary corrections are of Hesbi tacks not the judicial one, because these do not depend on clear proof, oath, and the establishment of litigation, therefore, the execution of them is not in the scope of jurisdiction of the executive, and the agent of this power in judiciary means that the public prosecutor execute them.