فصلنامه حقوق اسلامی
سال بیستم شماره 1 (پیاپی 76، بهار 1402)

In our legal system in addition to the judiciary, members of parliament and government are qualified to legislative initiative including Criminalization and Penalization. It is obvious that when several institutions have Similar qualification, implementation of qualification should be in such a way that there is no interference. The most important action to solve this problem is to move in a predetermined direction. But in our legal system, this direction is not foreseen and the existing tools are ineffective.This article, by explaining the current situation regarding the institutions qualified to legislative initiative in criminalization and penalization, the solution to achieving coherence in the application of the competence of the three powers in the legislative initiative, in addition to the need to accept the competence of the legislative initiative of the parliament members and the government in the aforementioned area, presenting the authority of this initiative to the authority judiciary and entering it into the legislative process; because the judiciary has the appropriate tools for efficient legislation regarding criminalization and penalization.

Although the Civil Code deals with the sale of common property in only one article, in a concise form from which no general rule can be deduced, in the two laws of civil affairs and the division and sale of common property, the legislature preceded The revolution has explained the rules of the sale of common property in detail. On this basis, some believe that recent laws have removed the conciseness of civil law on the subject. The jurisprudence is of the same opinion and now assigns lawsuits related to the sale of communal property by those two laws. But the ambiguity started when the jurists of the Guardian Council, after consulting them, applied some articles of the law and the division and sale of common property and related regulations in the assumption that not all partners are satisfied with the division, is against the Sharia and Declared invalid. Controversy in that theory shows that the jurists of the Guardian Council, contrary to the judicial procedure and what is stated in those two laws, to legislate the sale of common property, do not consider it sufficient to justify the indivisibility of property, but in their opinion, In addition to the above condition, it is also necessary to establish the two elements of loss and refusal of the partners.

The general structure of Imami jurisprudence in the initiative of Mohaghegh Hali in the book Sharia al-Islam is divided into four parts and is classified into orships, contracts, agreements and special rules. In this general structure, which has been a common and accepted model until our time, the family does not have a specific epistemological position and a regular internal structure.In addition, in the structure of Sharia al-Islam, the set of issues of family jurisprudence is limited to private law or inter-family relations and is not dedicated to important issues related to the relationship between the government and the Babi family and its issues have not been studied. Therefore, family jurisprudence is unrecognizable, incomplete and irregular and needs a new plan. The present article is in the position of designing a comprehensive structure and logical explanation of family jurisprudence. In the author's proposal, the general structure of family jurisprudence is divided into two parts; The first part is dedicated to issues related to private law and the second part to issues related to public law of the family and the system of issues of both sections has been identified and codified.

Identifying and directing the offender at the scene of criminal behavior is part of the traditional and well-known social response in societies. In our legal system, the root of such a reaction can be considered in the jurisprudential discussion of "Tashhir". And "criminalization" as a tool and method for this institution, like many other social reactions to the criminal phenomenon can have different effects and lead to challenges; The importance of careful investigation and explanation of this issue from the perspective of criminal law becomes doubly apparent when such an approach becomes part of the usual response to specific crimes.The lack of accurate explanation of such a reaction in the form of appropriate criminal policy based on the principles and rules of the penal system, has faced this approach with serious ambiguity and challenge and has raised the question of the place of such an action in the process of criminal proceedings and policy.This article examines the institution of intoxication in general and criminalization as a specific method; In order to explain the position of such a reaction in the penal system of the Islamic Republic of Iran, with a look at the jurisprudential roots and legal thought and principles governing criminal law, has addressed this phenomenon and the challenges facing this penal policy.

Article 220, based on Article 167, states the possibility of punishing the “Hodoud” that are not mentioned in the law. Regarding the interpretation of this article (167) and its interpretation capability in criminalizing the “Hodoud” that lack legal elements in the Islamic Penal Code and its relationship with article 36, has been analyzed as general and specific rules, some have considered it as ruling and condemned. From another point of view, the mentioned sources and fatwas are interpreted as the sources of the law in article 36 and some have considered article 220 to be the legislator's interpretation of this article. In this article, stated that article220 is not consistent with the fundamental values underlying article 36, 166 and 169, the general principles of the Islamic Penal Code as general rules governing the specific articles of this law, and the fundamental principles and values of criminal law. Article 167 is a guiding principle in the interpretation of the law and should not be cited as a criminal principle or rule. Based on this and based on paragraphs 1-2 and 6-1 of the third article of the Law on Compilation and Revision of Laws and Regulations of the country, there is a need to remove this article.

Music, as one of the seven arts, has existed in all societies, past and present, and is considered as one of the most important and significant features of world culture. Emotions and ideas expressed by music, situations in which music is played and listened to, and attitudes toward musicians and composers strongly influenced by social, economic, climate, access to technology, and religious issues. contract. Artists have come to the conclusion over time that the implementation of some rights related to their works alone is difficult and in many cases impossible, and it is better to have an institution to pursue and manage their rights so that they can create new works with more leeway. Think; Therefore, in each country, according to their conditions and sometimes using the experiences of other countries, various types of collective management organizations have formed copyright and related rights. Establishing a collective copyright management system in Iran can raise the level of copyright and related rights protection and professionalize the business in these areas, thereby improving the position of copyright holders such as composers, singers, writers and artists. The species that best enjoy the commercial benefits of their work and on the other hand leads to the growth of cultural and artistic industries in the country and better meets the needs of society and consumers.

Legal positivism has a particular view on moral and legal requirements and their relationship which has attracted the attention of many researchers over the past two centuries; Separating the semantic, ontological, epistemological dimensions, logical issues of moral and legal requirements and their relationship from the view of legal positivism, helps the audience to evaluate this view more accurately; This article, with the mentioned separation, examines the views of legal positivists in detail. Among legal positivists, some with a hard approach, under the title of rejective positivists, believe in the impossibility of committing to the moralization of legal requirements; others just believe in non-obligation to moralization of law. It seems that Legal positivists by rejecting the objective reality of moral and legal necessity in ontology and the belief in relativity in epistemology, have denied the logical relationship between "is" and "ought" problem and believed in separation of moral and legal requirements. According to the goal of closeness to absolute perfection, which is considered as targets of creation in Islam and is able to be clarified rationally, the view of legal positivism is not acceptable.

The existence of influential elements on the legal system is the starting point of legal pluralism; A theory that focuses on the study of plurality in a legal system. Given the existence of a kind of plurality and multiplicity in most legal systems such as plurality in principles and sources, the need to pay attention to this theory becomes apparent; This can also be studied in the Iranian legal system.The Iranian legal system has been in the duality of Sharia/law since Constitutional Era and the position of this duality as a source is still one of the main issues of the Iranian legal system. when Articles 4 of the Constitution and the responsibility of the Guardian Council in implementing parliamentary approvals with Islamic principals were legislated, this issue became more complicated, because jurisprudential inference is a multiple matter and finding an opinion and collecting it with the public will requires reflection. This article with explanation of the legal and jurisprudential concept of pluralism and according to the capacities of Islamic jurisprudence reviews that In case of multiple fatawas, the parliament has the right to choose any of the opinions as a jurisprudential basis, and the Guardian Council can not consider that approval as contrary to Sharia, citing the discrepancy between the approval and another jurisprudential opinion.