فصلنامه پژوهش های فقه و حقوق اسلامی
سال هجدهم شماره 4 (پیاپی 69، پاییز 1401)

Our regulations and legal articles such as those in civil law and trade law, which were approved more than 90 years ago, were adopted from jurisprudential resources and some European countries' laws. A faithful interpretation and accurate comprehension of some of these require a minute examination of the interpretation of the texts and laws of those countries. Hermeneutics is the art of a perfect understanding of verbal and written phrases. This understanding requires not only understanding the language of the text, but also a historical knowledge. One of the incontrovertible principles of hermeneutic interpretation is that a legal text must be understood and interpreted in line with its objectives. What a lesson hermeneutics teaches us is that why we prefer one particular solution to another. Also, conformity is a part of hermeneutic argument. A judge must adapt the original meaning of a legal text with the current actual reality. From this point of view, understanding is not a reconstruction of the past affairs type but it plays some productive roles. Legal hermeneutics is productive and active provided that the rule of law is an incontrovertible principle and is given a practical effect to it. It is not practical in a society with a system of extralegal type. Even, where the law itself cedes its interpretation to one sole person, the society is derailed from a hermeneutic rail. Hermeneutics considers understanding as a joint process contributed by people. Legal interpretation outcomes through the contributions of lawyers. Hermeneutics in general and legal hermeneutics in particular is provided a breathing room to comment only where free exchange of ideas is allowed and there is guarantee for free information flow. The hermeneutics' role is to link the past to the present without giving a superior position to the original objective or the old common sense. By descriptive-analytical methods and through studying books and written resources and library research, the present dissertation studied civil and trade laws and interpreted some of their articles by legal hermeneutics.

Soft annihilation of the Islamic government is considered like the velvet revolutions which is discussed in the political literature of fight as a newly emerging phenomenon and new issue in Islamic criminal law. It has attracted the attention of thinkers and the field of humanities. The method and type of actions of law breakers of soft annihilation is utilizing modern technology like satellites and virtual environment plus civil protests that threats Islamic governments. The method of action is different soft and hard annihilation but the goal and the result are the same. Both methods work for downfall of the Islamic government. With respect to this fact the necessity of investigating and analyzing the subject is really felt need. The vast attention to the conceptual scope of the world rebellion (revolt) shows the fact that rebellion with this characteristic should be considered as possibility of criminalization of Islamic government.

Reciting of the Third Party Beneficiary Exceptions in the Contract  The privity of contract principle, ascertains that the effect of the agreement only puts on the parties of that contract. In the other word, the effectiveness of the contract only goes to the parties and their legal representatives. However, there exist some exceptions to this principle which the scope will be determined by the contract itself or by the law on the ground of third party beneficiary. Beneficiary is among the conditions of the dispute submitted to the court. This condition and the capacity of the plaintiff are the fundamental conditions in which the Iranian legislator encounters with challenges. Among the new challenges of the third party beneficiary in contract, is the era of intellectual property of patent law pooland licence contract. The question here is that how can be possible to apply the third party beneficiary in such contracts? The fuduli</em> (unauthorized) arrangement of the others’ property and its sale is the other issues that need to be more scrutinized in the matter of beneficiary. Another question is that is beneficiary in third party beneficiary distanced from the privity of contract principle? Such as; the beneficent of the third party in the case of third party obligation, because according to this principle this is a right for the parties and the third person does not have such a right. The present paper tries to open a new horizon to the beneficiary in the contract and discuss the existed challenges and find suitable answers to the mentioned questions

Following the failure of the official criminal justice system in the fight against crime, in the late 20th century, a new movement called "minimization of criminal law" in the form of decriminalization, decriminalization and decriminalization mechanisms, especially against minor crimes and criminals Non-dangerous was formed in the minds of thinkers and legislators as a suitable solution for crime management through the participation of people and informal institutions in order to eliminate or reduce the adverse effects caused by criminal inflation, increase the social acceptability of the criminal justice system and facilitate the process of criminal rehabilitation and creation of social justice. The findings indicate that the policy of reducing recourse to the criminal justice system is concerned with the teachings of Islamic jurisprudence, including the verses of the Holy Qur'an, traditions and views of Imamiye jurists in the form of the court ruler relying on various jurisprudential principles and the rules in the process of hearing and issuing judgments, and also the execution of the punishment. Also, by approving the laws of Islamic punishment approved in 1392 and the code of criminal procedure approved in 1392 with subsequent amendments and additions and the law on reducing the prison sentence approved in 1399 through the provision of various measures of decriminalization and decriminalization, the Iranian legislature has shown its true will to join this movement and has implemented the form of institutions, especially decriminalization and decriminalization.

Ignorance is one of the less frequent but very important concepts in Iranian criminal law. The legislator did not provide a precise definition of ignorance, and in Article 155 of the Islamic Penal Code, the meaning of ignorance is used in an indefinite manner, as it considered ignorance of the ruling as a legitimate excuse. In Article 217, one of the conditions for the implementation of the limit is the awareness of the criminal about the sanctity of his behavior. Therefore, the meaning of ignorance should be obtained in jurisprudence, because the fundamental concepts of Iranian Islamic law originate from jurisprudence and the principles of Twelver Imam Shia jurisprudence. By examining the history of the debate from ignorance to judgment in the two sciences of jurisprudence and jurisprudence, this research seeks to find an answer to the definition of ignorance in the Islamic penal law of Iran, especially Article 155 of the Islamic Penal Code on the issue of ignorance to judgment from a Sharia point of view. The summary of the research is that according to Sharia, if the ignorant person is incapable or the guilty party is not complicit, his ignorance is considered as an excuse in Sharia and is punishable. Otherwise, his claim of ignorance will not be accepted.

Among various kinds of free possessive contracts mentioned in Civil Law, Hebe </em>contract is claimed to be the only one that can include condition of consideration. According to article 801, however, legal authors believe that this condition can be stated in all free possessive contracts. Generally speaking, condition terms of contract exert no effects on contracts, rather it is only influenced by contract. Nevertheless, this general rule is doubted in those contracts with the term of consideration, since some articles of the Civil Law imply that the condition of consideration influences free contracts in some cases and even can affect some changes in the identity of contracts. Therefore, the current research seeks to investigate the effects of condition of consideration on free possessive contracts via examining the Civil Law and Jurisprudence and Law literature.

There are two kinds of blasphermy in Iranian penal law which can be included the Hadd and Tazir. When the offender insult or relates the illegal intercourse to Holy Prophet, Imams and Saint Zahra, it will be the Hadd blasphermy (Article 262 of Islamic Penal Act), While insulting them which would not be Qazf or swearing or insulting other sacred will be Tazir blasphermy which is declared in 513 Tazirat Act. In this research with analytical- interpretative method, we will evaluate the elements of Hadd and Tazir blasphermy. Since the origion of this subject is rooted in Feghh, we will analyse the Feghh and Fatwas resources. The findings show that the differences between Hadd and Tazir blasphermy are related to the kinds of insult and subject of it. Hence, insulting Holy Prophet, Imams and Saint Zahra which consist of Qazf or swearing will be Hadd blasphermy, but insulting other sacred will be Tazir blasphermy.

A treaty is an agreement that Muslims make when they stop fighting the infidels. This research, which has been written by descriptive analytical method, has organized its discussions based on this hypothesis by stating the nature of the treaty. Based on Islamic jurisprudence, a treaty with infidels is permissible in the first sentence and in some cases it becomes obligatory due to expediency. The conclusion of this research is that from the point of view of some Islamic scholars, including the Supreme Leader, the necessary condition for the principle of concluding a treaty in Islam is to bind it to expediency and time. And the condition for continuing to adhere to it is to observe the interests of the Islamic society and to be intelligent and vigilant against non-Muslims and to continuously monitor the survival of the terms of the treaty and not to violate it by other parties.

Annulment as one of the reasons for the dissolution of the marriage contract means that the marriage contract which was first correctly concluded, is destroyed without the intention and will of the spouses. Therefore; based on the law, the annulment of the marriage contract is a forced dissolution which means that the marriage contract is automatically dissolved without the need for any other legal action, and leaving no choice for the court or the parties to the contract. Marriage is annulled by the death of one of the spouses; that in the case of discussion, the issuance of a presumptive death sentence, like other cases of annulment of a marriage contract, causes the forced dissolution of the marriage from the date of the issuance of the sentence, and if the invalidity of the presumptive death sentence is determined, the effects of the issuance of the sentence will be nullified as much as possible. Therefore, in the matter of marriage, in the case of proof of the absentee's life and her return, if the absentee woman has not married; the woman remains married to the man and the man has the right to appeal; however, if the absent woman has married a husband, the second marriage will be valid because it was done under the law. The principle of applicability of the presumptive death sentence to the marital relationship, which is explicitly accepted in Egyptian law, is also in accordance with legal and jurisprudential principles, and with the issuance of a verdict, its effects and rulings on the relationships of spouses, such as alimony, inheritance, dowry, eddeh, and custody, and joint custody of the child will be applied.

One of the crimes that is common among Islamic jurists is drinking alcohol, and the explicit text of the Qur'an indicates this ruling, but the issue that is always disputed among general and special jurists is what the examples of drinking alcohol are and what causes the Hadd is committed? Among the types of intoxicants, which cases cause drinking alcohol? According to the new materials that destroy the wisdom, what is the criterion for distinguishing intoxicants from the point of view of customs? Does the method of use also have an effect on the implementation or non-implementation of the Hadd? Is it customary to commit this crime only through drinking, or does the use of other means also prove this extent? Considering that the new Islamic Penal Code adopted in 1392 in Article 264 introduces new examples of the method of use such as smoking and injection; and being silent on the other hand, about the examples of intoxication, jurisprudential and legal study of the role of custom in identifying examples and methods of intoxication is essential. The conclusion of the research is that; firstly, there is no difference between solid and liquid intoxicants, and secondly, the use of artificial intoxicants causes a limit whether it causes intoxication or not. And third, in unconventional ways of consuming intoxicants, custom is the basis

Paying attention to the criminal development in addition to sexual maturity for the first time in Article 91 of the Islamic Penal Code 1392 and the necessity of obtaining it in punitive and retributive crimes, as well as the development of judicial powers for the abolition of punishment and retaliation is not only possible for perpetrators under 18 years of age, but also for those aged over 18. It is also possible to prove it on one hand, and on the other, eliminate the difference in the minimum age for criminality between girls and boys in crimes of inferiority and follow a system of gradual liability indicating the acceptance of relative criminal responsibility and a different and discriminatory criminal response. Children and adolescents versus adults are considered to take the steps in making the law in favor of their desires to achieve a favorable system of criminal responsibility for them. However, the use of the term "punishment" is not entirely possible in Article 91 of Criminal Code, and it does not seem correct based on the "decisions" in Article 88 of the Criminal Code.