مجله مطالعات فقه و حقوق اسلامی
پیاپی 20 (بهار و تابستان 1398)

One of the most important issues of human life about trade’s affairs, is the discussion of formation and termination of electronic contracts. The purpose of this study was to investigate the causes of the decline of the offer in electronic contracts in Islamic Jurisprudence and to review its effects and rulings and to adapt this issue to Iranian Law and The expression of the vacuum contained in the electronic contracts is not explicitly addressed by the Civil Code and the Iranian Electronic Commerce Law and has not given any mention of it. According to the information and foundations of the research, It has been concluded that many gaps in the various fields of work and judgments have led to the decline of the offer in electronic contracts, in which solutions to these barriers and gaps have been presented. It is suggested that the legislator should endeavor to ratify the law and the specific Civil Code of Trade and electronic contracts in accordance with international rules and in line with dynamic Jurisprudence.

From Islamic point of view, economic corruption is a deviation from religious rules in all economic fields, and the concept of "forbidden businesses" is a precise and deep equivalent for the concept of economic corruption in the Islamic-Shiite tradition. Government transactions are one of the major methods of budget spending and are therefore one of the legal tools to commit economic corruption. The importance and necessity of government procurement and its fundamental and positive role in the trade of goods and services has led governments to take steps to regulate government procurement in response to this concern in their plans. Considering the principles of jurisprudence, the fundamental and principal strategies in fighting and avoiding collusion have been considered in achieving transparency, and it can provide an effective and practical solution to be taken into account in domestic laws and regulations. The result of the research showed that our country's laws on government transactions do not fit well with those of the world, and, despite the current state of affairs, transparency and non-discrimination should be taken into account in existing laws; the current domestic laws on combating corruption in government transactions are not up-to-date and efficient and have shortcomings that make corruption possible.

In the criminal justice system of Iran, personal knowledge of the Judge is a valid evidence in establishing crimes and aggregative condition of punishments.The expediency of hiding of crime is abandoned in the unchaste crimes with force or duress. Proving of such crimes is ofen impossible through confession and testimony. Therefore, most of the victims will be deprived of the criminal justice and more criminals will release. Hence, the legislature, in one hand, introduced the irrefutable presumptions of unchaste crimes and closed down the judiciary arguments. on the other hand, by strengthening the validity of the judge's knowledge, extending of the ways of obtain it and preferring it on the other evidence, has protected the victims and has prosecuted the defendants more strictly.The judicial precedent in this area is passing excessive doubts and entering the path drafted by the legislature.

Financial corruption has a complex nature and today it has become an acute problem at the national and international levels, which, in the absence of control, in addition to its political, economic, social and security implications, can challenge the legitimacy and even survival of governments. it In order to solve this pervasive problem, in the first step it is necessary to identify all the dimensions and characteristics of corruption and then, its underlying causes should be jurisprudentially and legally accurately identified and using the experiences of other countries, international documents, and based on the national and transnational capacities, one have to identified ways to combat this problem. In this research, using analytical-descriptive method, it has been proved that the existing criminal policy in the country does not meet the needs of the society and the economic, administrative and judicial system in the field of prevention and fight against financial corruption and the is a requirement to review, modify and enhance action and reaction policies.

The Civil Procedure Code has not a clear explanation about the role of request of civil action parties in hearing of witness and performance of local investigation and regarding this matter if the court has directly authority in this field, and can, without asking the parties to the dispute, hear the witness and perform the local investigation, but it contains vague and inconsistent expressions. The same thing has led to different opinions and views. But in jurisprudence, the situation is clear, and the prevailing opinion of the jurists is on the need to apply for the witness and not directly authority of the court to hearing the witness. The investigation of the subject leads us to the conclusion thatwe should accept the directly authority of the court in hearing the witness or conducting the local investigation.

The rule of "Ehsan" is one of the most important rules of jurisprudence, which by paying attention on content of this rule, can be drawn the principles of Fundamentals of guaranty and non-government guarantee in different forms that are in accordance with the rule of Ehsan. As an example, it may be that a person acts as Ehsan a Practicable damage but  because of Benevolence he is not the guarantor of compensation, this rule can be used for proving the guaranty  of The government by this way that the role of "Ehsan" Includes Negative Affairs. One of the results of this study is that due to the admission of the religious ruler and Priority comparison (in comparison the state with the doctor), can not be proved  the responsibility of The government, but according to the rule of the province of Islamic governer and Clearing the reason of legitimate defense can be deny the civil responsibility of The government for damages.

Brain death is one of the most important issues in the field of medical and criminal jurisprudence, and the importance of this issue becomes clearer when it comes to finding that brain death crime has important consequences of criminal responsibility. This research, while criticizing the issue of brain death and accepting the viewpoints of jurists regarding the non-fulfillment of real death upon this incident, investigated the way of determining the relation between the injury to the person and the given fact that the criteria for liability is the correctness of the attribution of the crime and that for holding a person liable, it is enough to assign the final result of crime to him, when a person who is in perfect physical health is suffering from a type of traumatic injury, and the victims dies after a while after detachment of medical equipment from him, if, as the expert has found, the only cause of death is the effect of this crime, given that the jurists do not consider brain death as real death, the perpetrator is liable for diyah of causing the demise of the mind and apparently retaliation is ruled out in this case.

Ta'zir is a Punishment which has not been designated for that size, but according to its application, It it used  in different meaning before  jurists; education as the duty of the parent and the coach, or the synonym ta'zir,. The main question of this research is about the scope of the implementation of the child's discipline in jurisprudence, which was determined after examining the jurisprudent's documents: the scope of the sentence of ta'zir, not  including the Makruh acts ( Qausi-Out lawed but not strietly) and omission of Mostahabat , however It should be considered the permission of the child punishment(ta'zir ) to commit of any kind of crimes, grievances, minorities, opposition to primary, secondary, and even rulings of the government. But in the case of child care, it is permissible for him to leave all the morals and customs, but in the case of training or leaving all the necessary duties, It cannot be allowed other than prayer and fasting.

Alternative obligation is one wherein debtors have two or more obligations, but they are free to clear their obligation by fulfilling either one of the objects of liability. The legality of this type of obligation has been recognized in the legal systems of numerous Western and Arabic countries, but there is no consensus in the Iranian legal system and  Emamieh Jurisprudenceon this type of obligation. Many prominent Emamieh Jurists believe that there is no valid evidence against the legality of alternative obligation. The main objection of the opponents of the legality of alternative obligation is to the validity of sale and lease contracts, which are among possessory, and not promissory, contracts. In the Iranian legal system, uncertainty cannot be deemed as a ground for the nullity of contracts and obligations in and of itself, unless it leads to Gharar. Accordingly, alternative obligations can be deemed valid in non-possessory contracts.

Transparency and comprehensiveness are obvious features of an efficient law. The legislators under Article 151 of the Islamic Penal Code of 2013, explicitly mentioned the punishment for Duressor in the crimes punishable by Ta'zir, while explaining the punishment for direct offenders in crimes. The concluding part of the above mentioned provision stipulates: "In crimes punishable with Hadd and retaliation (Qisas) matters shall be handled in accordance with the relevant provisions of law." Duress in felony under the subject matters in Articles 375-380 of the Act is described in more exhaustive detail than the previous law. However, punishment of Duressor for crimes of Hadd is only referred to in offenses of pederasty, gay, and lesbian, in the assumption of duress by one of the parties to the crime. The legislators just like in the previous legislations on punishment of Duressor in other offenses of Hadd and Bilateral offenses of Hadd, is silent. The vast majority of Islamic jurisprudents believe that punishment of Hadd is inapplicable to Duressor in the above hypothesis. In contrast to the common view, the writers believe that imposing sentences of Hadd on the Duressor is feasible in crimes that can be attributed to the Duressor.

The aim of the present study is to elucidate the Khums of loan property and criticize the popular view of jurists, because the Shi'a jurists and the laws of Iran, in accordance with Qur'anic verses, narrations, necessity principle, Taslit’s rule and custom, the loan agreement is considered possessory and attributed the profit and loss of the loan property to the "borrower" and believe that the "lender" does not have the right to interfere with the possessions of "borrower" and in contrast, some jurists believe that the loan contract entails the acquisition of debt. But both groups agreed on the need to pay the Khums of this property and believed that if it is possible to collect Khums of the loan property at the Khums year, it is receive at the same time, otherwise, it must be taken as soon as it is received. This descriptive-analytical study suggests that the current fatwa is not compatible with the possessory of loan agreement, the belonging of profit and loss to the borrower, common law, the verses of Quran and the narrations. In addition, Imam Sadeq (PBUH), in a narrative, explicitly considered the Zakat of loan property to the borrower for such features. Therefore, in this narrative, the stipulation of jurisprudence and law on the possessory of loan agreement and belonging of profit and loss of loan property to the borrower and consequently the prohibition of borrower to interfere, it is cleared that a new comment can be made and based on this, the Khums of loan property is belonged to the borrower, or that property like bank loans is without Khums, as long as it has not been repaid or the loan is considered as part of the year's earnings income and if it remains until Khums season, then its Khums will be paid.

With regard to the progress and expansion of human society real and legal individuals in order to adjust the supply of financial and commercial relations through new ways to provide guaranty with respect to the nature of transference transaction of so called in the works of Emamieh  Jurisprudence. Due to some business rules and the apparent lack of coordination. Between the nature of annexation and transference transaction in addition to the mentioned facts this article deals with examining the history and activities about guarantee in the works of Shi'i jurisprudence offering votes of the scholars of Shi'i jurisprudence plus analysis and criticism of the reasons of views based on works of Shi'i jurisprudence concluded that legality of annexation nature of guarantee which provides commitment and engagement in transaction.

According to section 28 of lessor and lessee relations Act 1977, there are some deadlines for goodwill payment to the lessee subject to discharging judgment or the request of issuing discharging executive order (in the case the judgment, does not include  good will payment to the lessee). Moreover it declares that non-observance of specified deadlines by lessor, will result in nullity of the judgment. The nullity of such discharging judgment which takes place without being disapproved by the court and prevents from the disconnection of tenancy, is unclear in many aspects. Its conception, conditions and executive procedures are not clear in the Act. Also Jurisprudence and doctrine have no clear records in this regards. It appears that the result depends on whether the discharging judgment includes the Goodwill payment or not. Anyway, non- payment of such a right by the lessor in time or the request of applying discharging order, is the legal condition of nullity of the judgment but there is no specific procedure in the Act for such a case. It seems that the nullity, takes place automatically and without any court's decision.

Regardless of philosophy of enforcement of theft Hadd that is provided under Islam to protect public interest and prevent the act of theft and discourage the wrongdoers, the question rises if the amputated organ may be transplanted to the wrongdoer. Jurist are divided on whether such act is allowed, and if Jurisprudence only requires mere amputation of limb of the thief and whether transplantation of such organ is consistent with the nature of punishment or Hadd involves continuation of the effect of punishment and its functioning as the gazing-stock. This is a very challenging question. However, it is seen from study of law and Jurisprudence that since theft Hadd is a God’s right and such right is satisfied after enforcement of theft Hadd, therefore transplantation of amputated organ after enforcement of theft Hadd is permissible.

Qat‘ or ‘certainty’ plays a fundamental role in shi‘i’s method of inference of rules (Osul al-fiqh). In this discipline, the reliability of certainty lies for the most part in its disclosive quality in revealing reality. Having analysed the place of authoritativeness (hujjiyya) of certainty, the article at hand critically examines the reasons behind the reliability of certainty in light of the achievements in modern epistemology. Taking the Kantian distinction between the realm of ‘nomena’ and ‘phenomena’ seriously shows that that ‘revealing nature of certainty from reality’ is not a plausible idea. The article then discusses ‘Takhtae’ theory in Imami jurisprudence whose results are in conformity with Kantian epistemology. In conclusion, the article suggests an epistemic turn in the discipline of Osul al-fiqh from certainty to the employment of non-certain (zanni) knowledge which in turn sets the ground for independent rationality (al-mustaqillat al-‘aqliyya) to have more impact upon the inference of Shari‘a precepts (fiqh).