فصلنامه پژوهش های فقه و حقوق اسلامی
سال هشتم شماره 2 (پیاپی 28، تابستان 1391)

One of the main discussions in law is to prove rational virtue and indecency. It seems that, according to rational reasons, the case of rational virtue and indecency is exclusive. There are questions in this regard as follows: Is there any natural relation between virtue and indecency for our acts? Do they have natural value from our legislator's viewpoint? We should say that according to Muslim's viewpoint the base of all precepts is God. Their diversity of opinions only relates to precepts recognition methods. After answering these mentioned questions, the author presents questions as follows: can wisdom perceive the aspects of virtue and indecency independently? And finally what is the effect of rational virtue and indecency acceptance on affairs? In the present article, the author tries to answer these questions based on judicial viewpoints and proves that virtue and indecency are rational. And if the legislator doesn’t guide us to virtue, we understand it by our wisdom and vice versa.

According to the religion, combat means use of the weapon to frighten and violate people, their property and chastity and its result is divestment of public security. Combat punishment has been determined as a determined religious punishment, but in penal laws, it refers to that part of crimes which are not the instances of the combat apparently. On the other hand, the reasons show those corruptions that relate to determined religious punishments and are also applied to some part of the crimes do not include all corruptions instances absolutely but they just include the corruptions imposed by the violation of the life, property, wisdom and religion of people that divert their security. It seems that these kinds of corruptions mean combat.

The legislator, in all legal systems, considers some special conditions for the validity of lawful acts. In case of non – compliance of such conditions, we will meet various sanctions in terms of intensity and weakness, including: nullity (absolute or relative), lake of force, etc. In this dissertation, the concept of nullity of contracts and unilateral legal acts, and the consequences of their nullity will be studied. Furthermore, the dissertation conducts a comparative study in order to have more consideration on subject matter and also to make use of other legal systems, laws and regulations and their legal doctrines. Then we will carry out a comparative study of the laws of Egypt and France. The reason of choosing Egypt law for a comparative study, is its similarity with Iranian legal system from the viewpoint of following codified legal system and the effects of French legal system on civil and commercial regulations, as well as the attempts of both countries in utilizing jurisprudential doctrines in their legislating process.

The possession of transferor in mortgaged asset is one of the discursive issues in jurisprudence Imamieh, civil law, and judicial precedents. There are different opinions presented by the jurists in this regard, each of which has got many pros and cons. Chattered mortgage is the patent possession of transferor of the mortgaged asset. There are three theories of validity, lack of influence and invalidity which are presented in this article regarding to this issue. It is attempted in this article to extract the theory which is consistent with the subject entity and the truth of the case, with consideration the judicially and legally, so that the problem of the diversity of judicial verdicts could be solved. Based on the above discussion, it is attempted to shed light on this issue that if the mortgager sells the mortgage's property to third party after the fulfillment of the security agreement, what will happen to the contract of sale? Is that correct, non-affective or null? In this survey it is reasoned using legal texts that the law legislator in the matter on hand has followed the theory of nullity of transfer in regard to the mortgage property. This theory is exactly to explain the jurist's views. However It should be mentioned that the consequence of the nullity goes only to the mortgagee not to the parties of a contraction. Finally, the agreement between the buyer and the seller will have full effect by removing the legal impediment (The subsidiary security interest of the mortgage) from the mortgaged

The purpose of new financial tools design in the financial markets is to provide risk management and increase capital market efficiency. One of these tools is transaction choice contacts which should be based on legal measures because of contracts efficiency in stock exchange market. In this article, the authors define these contracts and present different viewpoints of Islamic scientist to determine their integrity and conform them with legal contracts. Finally, transaction choice integrity would be accepted.

Dowry is the property that a man should pay after marriage contract to his wife. Since it is often costly that the man can’t pay it or he doesn’t want to pay it, its degree must be rational and according to the man’s property; In this case, the man can pay it. Otherwise, the man may be imprisoned if he can not pay it. One of the factors for determining costly dowry is lack of true viewpoint about the nature and role of dowry. In the present article, the author explains it completely. Based on judicial sources, dowry cant prevent divorce. In fact, it is legal present with spiritual purposes for wife respect. Based on Islamic religion, dowry should be for marriage easiness and life relief. But in the present time, the exact meaning of dowry is forgotten.

It is possible to accept pecuniary penalty legitimacy according to "Mansoseh Reasoning", authorization of pecuniary punishment based on governor's viewpoint and secondary precepts citation. With regard to the previous jurist's viewpoints, these punishments are illegal but contemporary jurists tend to account them legal. The most important reason is the establishment of Shiite government that caused to review judicial resources. The reason of who accepted pecuniary punishment as illegal is controversial. Furthermore, authorization of financial punishment can be proved by secondary precepts.

According to Iranian law, rights of the natural child can not be attributed to parents. Shiite jurisprudence doesn’t assign natural children to their parents too. In this respect, the civil law and legal doctrine are discussed. The main reasons of the mattress are tradition and consensus. The reasons are not without difficulty. In this regard, opponents consider the nature and reality of customary lineage that is the abstract and foreign origin and the necessity of justice have the opposite opinion. Many lawyer's rule contained in Article 1167 of the Civil Code with regard to the majority of jurists have interpreted to deny parentage. However, other measures may reduce the strength of this view. Iranian lawmakers seem to not fully comply with the majority of jurists. The legislator attributed natural child to the parents.