نشریه مطالعات حقوق تطبیقی معاصر
پیاپی 12 (بهار و تابستان 1395)

For decades, inequality in paying the male and female diya (or blood money) has been debated and researched not only among the jurisprudents in the field of jurisprudence, but also outside this field. Except two Sunni scholars(Assam and Ibn Olayh), the rest of Ulama are of the opinion that the female diya is half that of males’. This religious verdict cannot belittle the high and true human values pertaining to man and woman. The only person who has issued a fatwa regarding the equality of the male and female diya is Ayatollah Saanei. Following his fatwa, lots of debates have been ensued and lots of viewpoints have been suggested. In this article, we shall analyze the above point as a jurisprudential issue in light of the current useful, accepted Jurisprudence. The views of Ayatollah Saanei as delineated in his book The Equality of Male and Female Diya, Muslim or non-Muslim, which is based on his jurisprudential points, will be quoted, analyzed, and criticized. We are of the opinion that jurisprudential issues and questions must be inferred and dealt with based on specialized methodology and basic principles of Ijtehad. No Mujtahid abides by methodology outside this mainstream. If Javaheri jurisprudence is dynamic, it is because it was emphasized and ascertained by late Imam Khomeini (PBUH), because it can be adapted to the conditions of and go with the contemporary civilization, and because it can be interpreted with a knowledge of the spatiotemporal elements of a given period. In this regard, we must confess that Islamic rules as proposed by Islam, as the last and the most complete religion, can never be limited to a certain time or to specific circumstances only. If somebody thinks in opposition to this line of thought or has a different viewpoint, they have not only blackmailed the aforementioned dynamism in jurisprudence but also have caused it to stop. Therefore, taking the high competence and ability of Shia jurisprudence together with the openness of the channels of jurisprudence for research, in mind, there will be felt no need to disturb the main principles of reasoning, when a deficiency regarding female diya may occur, at a certain period of time, or, as regards special cases, because these lacks and shortages can be compensated for by other means.

The retaliation of spirit is a punishment that has been legislated for protection of human dignity and protection of his rights against those who want to kill him. However, sometimes a person murders two or more; then is retaliation a sufficient punishment for the murderer? Since the victim's family has the retaliation and blood money right, if all of them accept the blood money or retaliation, it would be ok. But if they disagree or one of them kills the murderer, what is the verdict? Imamamie scholars have different ideas about the answer to this question: most of them believe that the murderer should be killed as retaliation and others suggest murderer retaliation for one of the victims; for the other victims the blood money should be paid. Iranian lawmaker accepted the famous jurist’s idea. This article explores the multiple murder in jurisprudence and reviews the reasons of pros and cons. The writers conclude that the famous reasons and evidence cannot prove this theory, and the Islamic punishment law needs to be revised.

Other than its sense of ownership, domination sometimes refers to hypothecation and priority right. This is applicable to cases where there is no legal or customary value, or the owner is unknown. The validity of transactions depends on ownership of objects and specified values. In some cases, an object is not considered a property or owned by anyone, but the transaction will be valid and the price will be paid. The price basically serves the hypothecation, rather than the object left without any owner or value. In addition, the notion that some objects are value-less just because there are no benefits seems quite controversial. Many of those objects have, owing to human knowledge and modern technologies, can be converted into beneficial materials and even vital for everyday life, natural environment and other creatures. In the fiqh literature, there are no explicit scripture to prove hypothecation in foul objects. This right, and even the subsequent ownership, can rather be proven based on analytical commentary of how foul objects are purchased as well as the methodology of scholars and other evidence. In the rest of cases concerning hypothecation, however, there are authentic, explicit evidence available. Similar to other items subject to ownership and value, this right is supported by legal concepts such as validity of purchase, inheritance permit and validity of will.

Economic boom as well as removing barriers to progress and sovereignty of each country depends on the protection of the productive and correct economic activities without which other developments may be overshadowed by economic weakness and the political and social status of a government may be shaken in today's world. Naturally, one of the very important factors in economic development is soliciting funds of investment traders and investors in order to support the manufacturing and jobs. In fact, the more the amount of investment in the country is, the more the amount of production and employment as well as the industrial and scientific development will be. However, increased investment also depends on investors' confidence and unwavering support of them against imminent harm of others. Hence, motivation for investment and economic activities among businessmen and economic activists inside and outside the country will be increased and the hopes for economic growth will improve. Obviously, this requires different policies in all areas including the legal and judicial area. In the legal realm, it must be ensured that the investors' rights are preserved against competitors and those who seek to violate professional rules and all those who enter in economic activities have enough confidence that the norm-breakers in this area will be prosecuted. This can be achieved by criminalization of some behaviors in the field of economic activities. This paper has used an analytical-critical method to study the foundations of criminalization in the field of economic activities. We have also tried to analyze the procedure and punishment for perpetrators of economic crimes.

Today, the advanced criminal systems have removed from maximum criminalization and criminal inflation and have turned to decriminalization and depenalization. These systems are mainly interested in rehabilitation strategies and safeguarding-preventive measures. Since fourteen centuries ago, Qur'an has provided the method of minimum criminalization and has dealt with criminalization in three areas of persons, property and security. While the Holy Qur'an enumerates many examples of personal and social wrongs, it criminalizes only a number of them.

The Right of God is one of the key concepts in Islamic jurisprudence and it is the direct or indirect foundation of all the rules of Islam. This study has not only proven this mentioned fact but has also shown that the “Right” in that phrase has different meanings from “The right of human” phrase; one of them is factual and the other one is metaphorical .These two words are not even literally equivalent; their owners are essentially and fundamentally dual; this has changed the nature of their rights fundamentally. Also this evolution has resulted in grave differences and these differences have separated these two types of “Rights” from one other. The separation is such deep that it cannot be ignored and hence these two words, apart from their distinct instances, cannot be considered as synonyms; thus there is not any theoretical solution unless we consider one of them as factual and the other one as metaphorical. In the second step the study has argued that if the word “right” collocates with God (ALLAH), it is a metaphor and if it collocates with “human” (ALNA: S), it is factual. Furthermore, it has been argued that since “right “stems from need, shortness, and weakness, the right must be useful for its owner and its non-compliance must make him suffer and finally deprivation of any right must be potentially possible; this possibility is the evidence of the weakness of its owner in protecting his right and because of these three reasons, God has not the position of possession of right, so he has not any right legally. At last, it has been proven that because these two rights have different meanings, origins and interpretations, they are not synonyms and, therefore, it is impossible to generalize their rules to each other. These rules and principles cannot be considered in Islamic jurisprudence rules as “The rights of God”. It is 1. 2. clear that since god does not have any rights and the phrase of “right of god” is a metaphor, in spite of correctness or wrongfulness of this argument, a concept that does not have any external manifestation and cannot be imagined in a mind, determination of its character is illogical. This article deals with negative logic before proving that the right of god is a metaphor.

Iran and France Labor Laws have predicted a period called probationary period to enable employee and employer to conclude work contract after complete evaluation. Time of this period is 1 month for novice and armature employers and 3 months for professional workers. This is while France labor System has considered this period 2 months for workers, 3 months for foremen and 4 months for supervisors. The common point of Iran and France labor laws of probationary period is that each party can terminate contract during, after and at the end of this period. The only difference is that unlike Iranian labor law, France labor law does not consider pre-informing and premonition as the term of dismissal while and at the end of probationary course. The present investigation studies different aspects of probationary period in Iran and France Labor Law.

One of the Legislative's informative tools is questioning which provides the opportunity for people's representatives to be informed of the performance of the executive branch. In the Parliamentary and the semi-presidential system, representative's questioning from higher authorities of the executive branch is tangible in comparison to other monitoring tools. In the UK -as the origin of the parliamentary systemsthe House of Commons has an important function in questioning the ministers and the prime minister. In Iran, the Islamic consultative assembly has also anticipated the possibility of representative's questioning ministers and the president in the Constitution and in the parliamentary procedure. The process of questioning and responsiveness of higher authorities and its effects are different in the two legal systems. While representative's questioning and responsiveness of higher authorities of the executive branch in the UK House of Commons has a significant effect in terms of quantity, in Iran different legal effects are expected from questioning in terms of quality: questioning the president could result in referring to the judiciary and questioning the ministers may ultimately lead to the interpellation plan. Developing a comparative approach and an analytical method, this article has paid attention to different aspects of representative's questioning the higher authorities of the executive branch in Iran's Islamic consultative assembly and the UK's House of Commons. Using the results of comparative studies, some recommendations have been provided for Iranian legal system.

According to Quran and tradition, man enjoys the right of divorce. Abusing this right has brought about the divorce to grow in number in Iran. To prevent abusing divorce right, it is possible to limit divorce right through stipulating conditions in marriage contract. It is evident that this contractual imposition of limitation on divorce right of the man is legitimate. This means that man undertakes not to divorce his wife except that she is disobedient or impotent in sexual relations. This notto- divorce condition is also protected by civil laws including indemnifying spiritual losses and exercising measures against those who breach this condition. Among effectual guarantees in civil law not having right to divorce is the firmest condition. In other words, when man undertakes to not to divorce his wife, he is deprived of dissolving the marriage according to religious law. In the words of jurisprudents, man, by undertaking this condition under marriage contract, makes himself deprived of divorce right privilege legitimately. However, this does not mean total deprivation of divorce right which remains in special conditions.