فصلنامه پژوهش های فقه و حقوق اسلامی
سال سیزدهم شماره 2 (پیاپی 47، بهار 1396)

Discussion of guarantor that appears in two levels of laws; civil law and trade law, is one of the civil essential discussions of civil jurisprudence about transferring or partnership always entails to challenges and there are jurist's differences in positive laws and it creates opposition among law clauses. Analyzing this subject and discovering intrinsic nature of guarantor's contract can solve conflict of these two law clauses. This article aims to solve opposition by analytical way to check great Imamiah and Sunnite jurist's ideas and evaluate reasons. In addition to rejecting consensus, one of the discussion results is this fact that reasons which Farighin presented to prove their ideas are strong and werent established their verdicts; hence one can say that nature and essence of guarantor's contract has not suitability of charge transferring nor attachment has charge, but intrinsic necessity of this contract is creating charge; nevertheless, accepting each of these two verdicts while contracting and agreement, can be correct. From legal view, guarantor is civil discussion and its content is completed in trade law and doesn’t devote to trade law, but is complement of civil law.

In This study, the transfer of author's moral rights will be considered in legal and jurisprudence's point of view. Despite evidence of possibility for the transfer of author's economic rights, the possibility for transfer of moral rights is doubtful. To find the correct answer, first of all we tried to identify and analyze conceptions of RIGHT, AUTHOR, and types of transfer and then we will consider barriers of transfer of this type of rights from legal and jurisprudence's point of view. Generally, legislators are opposed to the optional transfer of moral rights as they suppose it as one's integral part of author's personality. Islamic jurists besides their opposition of author's optional transfer of moral rights announced their opposition because of lies and frauds occurrence in the issue. Authors believed that attention to the target oriented jurisprudence and understanding the nature of emerging issues helps to a correct analysis; authors believe that the barriers on transfer of the right has been well criticized and analyzed here.

Aside from theoretical difference which provided on Ghazf and imposed it to women, some considered it aattributed to adultery or sodomy. And some jurists referred Sahgh attribution to a sort of Ghazf. According to this definition, Tafveh and speech play fundamental roles in the formation of Ghazf. It seems that material dimension of this crime is attributing to speech. Hence researchers regarded this rime for proving testimony against other crimes. This article with reviewing this issue and considering realities presents the realities of the contemporary world where new forms of communication are faced in the world of creation (written on paper), registration in the virtual space (typing), cartoons, Photoshop, and so on or using any other ways of assignment of adultery or sodomy. For accusing the criminal law, it is sufficient to fulfill the word or speech. Apparently, the authors provide a single legitimacy and this opinion is not a precedent in other studies.

Based on rules of Imamieh jurisprudence and Iranian criminal rights (including Article 151 of Islamic Penal Code ratified in 2013), one of the eliminating factors of criminal liability is duress. Duress includes “mental pressure imposed on a person through whom his free will and authority (consent) is waived at the time of committing that behavior”. The present paper discusses determining intentional murder judgment resulting from duress and its documentations in Iranian rights (Articles 375 to 380 of Islamic Penal Code ratified in 2013) and Imamieh jurisprudence. This study concluded that firstly, the failure in elimination of criminal liability from the person subject to reluctance in the status of duress to murder is based on the distinction without reference and principle of human being lives equality. Secondly, the basis of eliminating criminal liability from the person subject to reluctance to murder in the case of being minor or insane is the rule of stronger cause from the foreman. Thirdly, Imamieh jurists’ opinions concerning permission or prohibition of killing in terms of duress to murder are not the same; however, the most well-known idea of Imamieh Jurists and consequently, Islamic Penal Act (IPA) ratified in 2013 is principally based on prohibition of murder in the case of duress to killing.

According to Iran’s law on crimes against properties, mostly a crime named as “gaining illicit property “is documented to Article 2 of aggravated penalties of perpetrators of bribery, embezzlement, fraud, adopted in 1988. The Article is ambiguous since it isn’t determined to this crime could be committed by any person with any attributes? Or perpetrator of such crime is individuals with specific feature? Because according to the basis and the way the text is composed, the Article refers to peoples that doing any act according to certain rules and regulations and on the behalf of the government to do some business and through this, they have gained a property. Therefore, the word “illicit” here, pertains to acting against determined rules and regulation for the perpetrator. This can be one concept of God ordered in Quran: obtaining the property illegally. Therefore the perpetrator obtain the property belonging to another without any bases.

Some believe that in the inner intention theory, the inner will constitutes the legal acts and the announcement of the will is a means to reveal the inner will. In the event of a conflict between the announced will and the inner intention the inner intention will be preferred. In this article, we explained, this means that if there is no intention in the inner will and the announced, it will not valid, since in the announced will be a hidden intention to create, it can create legal acts. What was stated is in accordance with the announced will, the literal truth and customary, reasonable person's practices, and principle of prediction, will be considered the inner will. The announcer of will provides situation of its audience's confidence, so nobody cannot be against the announced will, show the inner will. As long as is no specific evidence to contradict the announced will, it is absolutely valid.

In spite of the fact that Islamic Sharia based the foundation of its laws and commandments on political tolerance, it emphasizes the severity in proving crimes and this is benefited as a remedy for supporting the accused and the society. In fact, Islamic Sharia tries, due to this remedy, to use the firmest reasons as positive reasons of crimes in order to, in the one hand, the vice and the ugliness which happen in the society to be hidden and reputation of people that is one of the purposes of Islamic Sharia to be reserved not to be stained and their sanctity no to be easily destroyed and their human generosity is reserved. On the other hand, the spreading corruption and ugliness are prevented in the society. It is because revealing and discovering crimes are accompanied with publishing related news. As a result, if the news about the occurrence of crimes are repeatedly published among people, the greatness of crimes are reduced and indecency and ugliness of crimes are cleared form their minds. As a result, this makes contamination to the crimes easy and simple and this is the most dangerous phenomenon which threatens the security and organization of the society.