فصلنامه پژوهش های فقه و حقوق اسلامی
سال هفدهم شماره 4 (پیاپی 65، پاییز 1400)

The principle of the necessity of contracts (Pacta Sunt Servanda) has been considered and respected by lawyers in all legal systems and national laws of countries. As contracts and agreements indicate, legal and economic relations between individuals of the contract and as the main purpose of the contract is to create rights and obligations for the parties to the contract. sometimes some factors such as inflation, recession, sanctions and in general, economic fluctuations beyond the will of the parties, affect these contracts and cause differences between the parties. The occurrence of these events leads to a fundamental change in the circumstances and conditions of the contracts which makes the implementation of the contract for the obligor with excessive difficulty or unconventional losses. In such a situation, it is necessary to modify the contracts. Based on this need and by considering the increasing expansion of trade exchanges and concluding continuous contracts and inevitable economic developments, the present article investigates the impact of economic fluctuations on these contracts and the possibility of compensating for the imbalance created by resorting to contract modification. Based on the result of the study, it can be concluded that there is a modification of potential contract, but it is impossible by the principles of Feqh due to the proposed shortcomings. However, based on Article 3 of the Code of Civil Procedure and by using legal principles relying on the principle of interpretation of the will of the parties, the principle of good faith and fairness, and judicial procedure; it is possible for the courts to modify and revise the contract.

Organizational arbitration is where the parties agree that the subject of their dispute will be controlled, managed, and run under the supervision of a legal organization. In fact, unlike the case arbitration ─ which is accomplished by referring litigants to specific person(s) ─ the arbitral tribunal is an organization that has coherent arbitration structures and rules, and also has a different function from the case arbitration. And for this reason, it has undeniable advantages, such as the special way of providing services to the litigants in order to select an arbitrator and monitor the sentencing process. Considering the importance of the performance of this institution, the reason for addressing this issue is to explain the subject of research as much as possible, and to examine the foundations of its legitimacy. The results of this study, which is written in an analytical manner, are as follows: The votes issued by this institution, like the votes issued by the Dispute Resolution Council, are binding and can be considered as a subset of the Dispute Resolution Council. Meanwhile, the legitimacy of its activities stems from the breadth of the meaning of the verses, narrations, and reasoning on the manners and reason of wisdom. Also, the practice of the wise in trying to take care of the affairs of others in times of conflicts, and invoking the rules of jurisprudence as a necessity to repel harm ─ an example of benevolence and charity ─ confirms the legitimacy of the organization's activities.

The principle of possibility of waiving the legal right is one of the accepted principles in private law. Any owner of light may, without considering the principle of the rule of will (Article 10 of the Civil Code) and the rule of absolute authority (domination) (Article 30 of the Civil Code), waive his/her right in form of a legal exercise; Unless such a waiving is contrary to the rules and regulations of the matter, public order and good morals. In the jurisprudential teachings, the proposition “al-haqq qābilun lil-isqāt” is one of the general propositions that can be mentioned as a jurisprudential rule. Various theories have been put forward as to the nature of waiving the legal rights and its qualities, however finally it can be claimed that the right, whether it means absolute authority (domination) or property or a type and degree of it, the owner of the right is the owner and dominator on it. The necessity of this matter is the ability and power of the owner to make all kinds of taking right, including waiving the right. This innovative study investigates the nature of waiving the legal right and its acceptance as a jurisprudential rule by carefully considering the theories of jurists.

Testimony as one of the oldest proofs of criminal and legal claims in the era of human equipment has not lost its immense importance in modern legal systems, discovery of reality. The mystery of this is in many, sometimes complicated circumstances, which criminal justice systems, and especially Islam, have seen as necessary. One of these complex circumstances, which has various interpretations of the difference between Islam and Shi'a and Sunni faith. Assuming the other conditions of testimony, the concept of faith and its effect on the acceptance of witness testimony from the viewpoint of the two great Islamic sects, determines the quality of the encounters of the judicial system of Iran and other Islamic countries with intuitions that have a different religious or similar to the apparent opposition. A closer look at the Sunni and Shiite principles and documents reveals that there are differences between religions in the concept of faith and the rejection of the martyrdom of infidels and Christians. The Hanafi and Hanbali religions absolutely accept Christian and Jewish martyrdom among themselves, but other religions have only permitted the martyrdom of the People of the Book in their wills; therefore, the main difference of opinion is in accepting the testimony of a Shiite. In this regard, Hanbali and Maliki, with their own definition of faith, have commented on the absolute rejection of Shiite martyrdom; but in contrast to the Hanafi and Shafi'i religions, they have taken a milder view. Among the Imami jurists, unlike the old jurists who categorically reject the martyrdom of the Sunnis, contemporary jurists consider the martyrdom of a Sunni to be valid; That such a theory is more in line with the basic criterion for accepting testimony, namely the ability to discover the truth and the degree of truthfulness in legal systems. This paper attempts to discover the Persian point of view of acceptance or rejection of martyrdom in those claims that exist between witnesses and witnessee in terms of religious or religious orientation.

The openness of the trial means that members of the public can freely attend court hearings, closely observe how things are going, and ensure that the law is strictly enforced and that there is real judicial justice. By applying this principle, the judge can not abuse his legal authority for fear of public scrutiny and arbitration, and as a result, this principle can greatly help increase the quality of justice and the issuance of fair judgments in the courts. However, some legal systems believe that the courts cannot suffice with general terms such as public order and ethics, but are obliged to make the reasons for such action clear to the public     The principle of openness of the trial has been considered by the holy shari'a and in the four sources the inference of the rulings (book, tradition, consensus, reason) has been explicitly stated and has also been approved by Islamic jurists; According to Article 165 of the Constitution of the Islamic Republic of Iran, which is the most important legal document of the country, trials must be held in public, which has shown the importance of this issue in the eyes of the legislator; In English law, based on the principle of justice and natural law, the principle of openness of trial is emphasized; Of course, in Iran, due to the disturbance of the court order, sometimes this principle is not implemented, which can be easily solved by considering solutions such as punishment for those who disturb the order of the hearing, including the litigants and those present, and proper management of the hearing by the judge.

The criminalization of not registering marriage has been one of the challenging ‹experienced so many ups and downs up to the present time. The last legal element of this crime is article 49 of Iran's Family Protection Law which has determined penalty for men who do not register their permanent marriage officially. This study aims at matching this article with religious standards and investigating its coordination with legal principles, rules, and the deterrence of this law. Hence; first of all, it criticizes this part of article 49 of Iran's Family Protection Law by jurisprudential and legal evidences and represents reasons, ‹the biography of infallible Imams›, ‹the necessity of facilitating marriage›, ‹the conflict between law and other laws›, and ‹not enough deterrence and defeat the purpose› to confirm the disagreement of this part of article with religion and then it jurisprudentially and legally criticizes the most important reasons confirming this law which are ‹maintaining the rights of third parties›, ‹protecting the realm of family› and ‹preventing other family crimes›.

The criminalization of holding the sattelite equipments is a jurisprudental challenge in the criminal policy of Islamic Republic of Iran. Various satellite applications in communications and science raise the important question whether this criminalization has a jurisprudential justification? The two categories of legal jurisprudence agreement and opposition was investigated and verified. The result was that holding the satellite equipments is not religiously prohibited, but sometimes needed. Therefore, its criminalization in general, is forbidding the Solomon of God, closing down the path of God, violating the principle of respect for people’s property and the limits of citizenship freedom, and as a result, it is forbidden. But the use of vulgar, obscence or blasphemous, and in general, illegal use of satellite technologies by seeing, hearing, reading, etc., if not causes illegimate harm or harass to another, is religiously prohibited, but not a crime, and if it causes illegimate harm or harass to another, it is both prohibited and crime, and in other cases, it is neither unlawful nor a crime. If the effects of illegal behavior is limited in the privacy of the offender, privacy is immune of criminalization.

The civil codes of Iran and Islamic religions are unanimous in a murderer’s disinheritance whereas they mention a number of secondary details that implies conflicts and leads to split decisions made by jurists or based on judicial practice. For example, a court of law orders disinheritance upon any type of murdering, but large discrepancy exists among religions and their jurists. Moreover, juristice and legal ambiguities still can be found in the inheritance after abetment, the extent of inheritance deprivation in the absence of criminal intent, the effect of murder of Hajeb (someone who disinherits) as well as the prerequisites of inheritance deprivation and its range in various types of murders.The current study independently examines each view and extracts different viewpoints after analysis and criticism. Since Islamic jurists either take a dumb approach to some issues like abetting murderer, murder of Hajeb, and murdering without criminal intent, or do not provide sufficient explanations, the way must be paved by jurisprudence or inference of courts upon legal gaps. Some suggestions have been offered to overcome the problem.

According to the written legacy of Islamic jurisprudence many jurisprudential rulings are subject to justice. This fact highlights the importance and necessity of the definition and concept of jurisprudential justice. Hence, the jurists of Islamic religions (shiye, Maleki, Hanafi, Shafeyi and Hanbali) have commented on many different terms of justice in jurisprudence. As aresult, the Islamic jurisprudence literature has many definitions of jurisprudential justice. The following text seeks to define justice in Islamic jurisprudence. And the difference between these definitions is the actual and the real one, and it is also apparent and complex. And this sets the bench mark with a pragmatic approach of this speculation. That the seemingly different definitions of justice in Islamic jurisprudence literature is the product of a manner of expression and harmony with literature prevalent in any jurisprudential religion and is based on the explanations of the jurisprudents of each Islamic religion (Shiye, Maleki, Hanafi, Shafeyi and Hanbali). It has been written in the most important definitions of jurisprudential justice that are analyzed in the jurisprudential books. And at the end of the study, that all the definitions are stated for jurisprudential justice in Islamic religions have convergent and coherent in a single sense are pulling the result. Therefore justice in Islamic jurisprudence literature has only one meaning. Avoidance of obligations, avoidance of cabaret and insistence on the perpetrators. The disagreement about whether justice is the attribute of the soul or the attribute of the verb is complicated with a posterior. It is out of the essence of jurisprudential justice.  But it can be said that in some cases such as dealings and transactions, minimum of carnal justice of witnesses is considered and in others such as judgment, limit punishments and retaliation, maximum of carnal justice is considered.

The Rule of “Indecency of Punishment without issuing Indictment” and the Principle of Nescience of the Rule Does Not Absolve Responsibility” are among certain rules and principles in Imamiyeh jurisprudence and penal law. Since the application of this rule as well  as its principles seem contradictory, the current research is an attempt to investigate whether the rule and the principles are contradictory or not, and then shed light on the possible relationship between them.  Delving into the content of the rule and the principle, and analytical reasoning, it is concluded that unlike the principle which is subject to possible exceptions, the rule is rational and far from submission to any exception. Furthermore, studying the interpretations on the boundaries of issued and not-issued indictment, proving the necessity of instructing necessary laws and regulations, excluding non-penal responsibilities from the inclusion of the rule and analyzing the relationship between the rule and the principle, the result of the current research has shown that in the case of contradiction between them, the rule is preferred over the principles and when it is established that the indictment is not issued, nescience about the rule removes responsibility, save civil responsibilities and non-penal commitments.