فصلنامه پژوهش های فقه و حقوق اسلامی
سال نهم شماره 4 (پیاپی 33، پاییز 1392)

prescription is a law principle which oversees the verdicts, trials and pronouncements and according to the significant effects it has in people's commercial and law relationship, it enjoys a particular judicial position based upon this principle's tenets, if the person doesnt ask for the lawsuit during the determinate time in order to regain his rights, his rights will be evanesced or at least it may cause his lawsuit not to be listened and consequently this will result in negation of the person's ownership domination over his right. On the counter point, according to Shiite religious jurists, the right for taking vengeance will not be integrated and whenever the qualifications exist and there is no contradiction, it will be applicable. Since taking vengeance is considered as a right of creditor over debtor, presuming that we accept "prescription" there will be an evident conflict between the prescription principle and the right for taking vengeance. Religious jurists by referring to this principle that " الحقّ قدیم، لا یبطله الشئ " do not include the exertion of the right for vengeance within the 'prescription principle', so they consider it preferential to the 'prescription principle'. It seems that by affirming symptoms evidence, the right for vengeance will be negated and will not be applicable.

The logical usages is the practical way or mental opinion of all the rational people all over the world, regardless of their spatial, temporal and religious differences, which find it useful and good in dealing with a phenomenon. There are two general views about the criteria of validity of logical usage: first, instrumental validity and second, per se validity. The validity of new usages is based on second view. Although logical usages are used by jurists in criminal jurisprudence but it seems that it should has more important role in criminal jurisprudence. Some of its applications in the criminal jurisprudence are: the definition of “Herz”(protected), what is robbed needs to be property, the criterion of Roshd (growth), the mere criminal intent has no punishment, the community needs to regulate, impose criminal penalties and restrict freedom, financial penalties as a kind of “Tazir”(punishment).

On the base of debts that are in the result of contract or torts of new contracts could be formed whom they are named accessory contracts. Some of them discharge to debts such as guarantee, assignment of debt contracts and Novation. And some of them are merely guarantee for obtaining of the main debt e.g. Pledge and Personal Surety(Kefalat). After formation of these contracts, it could be occur changes in the original debt or on the origin of that e.g. resection or termination. So the main discussion is the effect of changes on these contracts which in this paper we are concerning about the present theories and we state that the acceptable view by Parliament is the changes of the main debt on the contrast of Guarantee's contracts do not have any effect on the accessory contracts that discharge the debt.

Political participation of women in society has recently been more considered. Therefore, and because of some juridical doubts about the women's political Velayat(super authority), juridical analysis of this issue seems to be important. Hence in this paper, possibility and permit's range of women's political Velayat by study the Quran and Hadith and jurists and commentator's dictum is surveyed. By the result of the study it became clear that we cant lean decisively on the Quran's Verses to forbid women's political Velayat; Though – in case of being permitted- some of them could be used as evidence. But according to the famous Prophetic Hadith, A book Hadijeh's one and consensus of scholars of Shiah and Sunnis in prohibiting general Velayat for women, we can adjudicate banning political Vilayat for the ruler of Muslim Ummah in general and supreme leader (Valiye Faqih) for women. But we cant adjudicate so for lower levels and in the Velayat such as of the president and members of parliament and ministers and other Managers.

Iran’s legislature, influenced by the law of Islam and moving along the reverence for life, has criminalized all crimes involving deprivation of life, whether intentional or unintentional, and provided for them both criminal and civil sanctions. Nevertheless, some legal rules, especially in the Islamic Penal Code of 1370, are in disagreement with the observance of the human life. The most important of these rules, among others, are: devolution of enforcing penalties involving deprivation of life to private persons in Article 295, note 2, and Article 266 of the Islamic Penal Code; existence of the penalty of Rajm (stoning to death) in Article 83 of the Code; execution of persons under the age of 18 and ambiguity in the Code regarding the deserved punishment for persons accused of mercy killing. These faults have induced the legislature to create some modifications in the Bill of Islamic Penal Code of1390 in which: the enforcement of penalties involving deprivation of life has, as a general rule, been devoted to the courts; no express mention has been made to the penalty of Rajm; ambiguity regarding the deserved punishment for persons accused of mercy killing has been avoided and some particular limitations have been attached tothe enforcement of penalties involving deprivation of life against persons under the age of 18. Despite these improvements, the Bill is not devoid of deficiencies and the present study is intended to clarify its faults and, at the same time, to recommend some positive suggestions.

Irregular control of population growth sometimes leads the country to a serious challenge. This problem has been obvious in our current society since recent decades; so that Supreme Leader considers it as a kind of threat in his speech. Is childbearing a nature pertinence of matrimony or something following that? The main question in this study organizes the article. The author in this bibliotheca article which is written by analytical-descriptive method believes that childbearing is beyond the nature pertinence of matrimony or something following that; hence, one of the solutions for this challenge is that parents converse childbearing and the number of children after matrimony to a legal obligation by an espousal addition condition. In order to gain this purpose, simplifying marriage and promoting religious training and obtaining life facilities are inevitable.

One of the new contracts in Iranian legal system is insurance contract that has encountered different opponents and adherents in its course of coming into existence and each parts, invoking to some reasons, have tried to justify and establish its viewpoint. The most important reason that the opponents of insurance contract have raised is that this contract is based on «Gharar». They believe that the insurance contract is a sample of «Zamane- Ma- Lam- Yajeb and gambling. So they consider it as suspended and void contract. In this paper we have studied, through criticizing the opponents reasoning, the basis for legitimacy of this contract. It has to be noted that the mentioned «Gharar» in «Moghabeneh contracts» is a sort of accident and separation GHARAR and the prohibition of Gharar is related to «Moghabeneh contracts». Thus to extend the Gharar to risk contract such as insurance is without any reason. IN this paper, the opponents viewpoint has been rejected and resulted in that Gharar, in insurance contract, is a kind of «Inherent Gharar» that may not affect its validity.