پژوهشنامه حقوق اسلامی
پیاپی 38 (پاییز و زمستان 1392)

The Shi’ite political jurisprudence has a background as long as the Shi’ite’s history and except for the period of the Holy Prophet’s, Imam Ali’s and Imam Mojtaba’s governance (p.b.u.t), until the victory of the Iran’s Islamic revolution, there has been no situation to have that implemented and developed till Imam Khomeini succeeded to realize it and therefore the political jurisprudence of Shi’ite was put into practice. Imam Khomeini, in addition to realization of Political Jurisprudence in some spheres, has also developed and expanded the Political Jurisprudence. The social and governmental views about the Jurisprudence, respecting the requirements of time and place in Jurisprudence, respecting the government’s interest, etc. are the instruments of Imam in Jurisprudence. This article, together with explaining the legislative powers of the state, thrives to clarify the role of expediency and governmental mandates in relation to the primary and secondary ordinances from the viewpoint of Imam Khomeini and other prevalent comments. It also clarifies the function of Iran’s parliament as the state legislature in relation to legislative powers of Iran’s Supreme Leader (Vali-Faqih). Meanwhile, the expanded spheres of political Jurisprudence by Imam Khomeini will also be explained.

Due to the growing need of manufacturing, industrial &. .. plants for financing their projects, and the inability of banks to do this, there is an urgent need to design new financial instruments. Taking this into account, we can mention murabaha contract, by which the seller announces to the customer the final price of goods, including purchase price, transportation costs, maintenance costs and other information, and then by adding some amount of profit, they sell them to him. Murabaha contract can be concluded in cash or on credit, and usually the latter is more because of interest rate. Based on this contract, murabaha securities are designed which like any other legal and economic actions have their own nature and rules. Among the issues related to nature of securities are their characteristics as well as their transference. This research has a legal approach, but the basics of jurisprudence and financial management are taken into consideration according to needs. The research method was theoretical - practical with a descriptive - analytical view together with library inquiry.

Mu’atat marriage is a marriage contract without the special wording in which a certain action proves the marriage takes place, while adultery is an intercourse without any contract. Mu’atat marriage means when some action which is conventionally considered as a sign of marriage serves as a base to establish the marriage. Although most Fuqaha consider the special wording only a means to a lawful marriage, they have regarded mu’atat marriage as invalid. They sometimes believe that it amounts to adultery and sometimes refer to the general consensus in this respect. However, it seems that the major reason is the lack of a publicly-accepted action which stipulates the marriage, and the consensus and caution which have caused most Fuqaha to consider the wording so crucial to marriage is just because of the fact that the explicit wording clearly indicates the will to do an action. The present study has examined and analyzed the relevant reasoning and thereby has concluded that mu’atat marriage matches the rules and differs from adultery. The principles of a lawful marriage also confirm it. Nevertheless, it needs conventionally-acceptable evidence. Conventionally, the marriage ceremony greatly contributes to the authority of the society and family and discriminates a lawful marriage from an unlawful one.

The principle of the “common heritage of mankind” is one of the results of the codification and the gradual development of the international law by the organs of the United Nations in order to implement the principles of justice and equality, the solidarity between the nations and the new international economic order. During the later decades, a powerful movement is formed by support of the majority of actors of the international community, in particular the developing states, willing to enlarge the domain of the principle of the “common heritage of mankind” to human genome. The insistence of the developing states on this question was for the implementation of one part of their claims and expectations to modify the international economic and political relations and the application of the principle of “compensatory inequality”. Meanwhile, if the implementation of this principle has been considered in the regions such as the seabed out of the sphere of national competence, outer space and a vast expanse of the Antarctic, when it comes to issues such as human rights, climate change, biological diversity and the environment, it is preferable to use the concept of “common concern of mankind”.Because here the most important thing is the protection of common interests and not the equitable distribution of the common resources profits. The concept of the “common concern of mankind” about the aforementioned questions attracted the attention of the international community with the necessity to take certain common measures, even if it is situated out of the sphere of national jurisdiction. This article tries to study the common characteristics of these two concepts and their differences.

Literary and artistic property is the right of the author to his/her mental creatorships. In French legal system the genuine literary and aritsitic works are subject to protection solely due to their creation and manifestation, and not only is the form of manifestation unimportant but also no formality is required for protection of the work. Also, in some cases when the registration and deposit of a copy or copies of the work are under consideration, it has been regarded just for the burden of proof. However, in Iranian legal system besides the exterior manifestation of the literary and artistic work, the protection of such work respectively depends on some formalities such as its being first published in Iran or bearing some special signs. Also, with respect to computer softwares, the judicial protection of the work requires the achievement of technical confirmation. The attention to the jurisprudential basics of the subject especially the common sense and the generality of the provisions that require the protection of the properties and a consideration of undesirable effects of tying the protection to formalities point out the necessity of protection without formalities. However, the recognition of a role for the formalities in determination of burden of proof may be beneficial.

Article 135 of the Penal Code ratified in 1370 defines pimping as "linking together two or more people for adultery or sodomy". Article 242 of the new Penal Code (ratified in 1392) has confirmed the following provisions of the previous article in different terms, but with little change in the content: "Pimping is bringing two or more persons to commit adultery or sodomy". Contents of the two articles indicate the agreement of well-known Imamie jurists or at least the most widely accepted of them. In contrast, a significant number of jurists have developed the meaning of pimping. They believe that the absolute concept of bringing together and making a relationship, whether it would be for adultery or sodomy or lesbianism are to be regarded as instances of pimping. The author has given a third quote by doing a review of this issue. He believes that pimping as a crime with its punishments mentioned in jus canonical, has only one sense that includes" making a relationship for fornication or adultery" and other items are different from that and are crimes which have been entrusted to the judge. It seems that the author's opinion of this theory is solitary. This paper defends the author's position by criticizing his rivals followed by the necessary supporting evidence.

The necessity of law as an indispensable fact for the survival of society and regulation of social relations has been recognized by everyone. Hence, regardless of their thoughts and special opinions concerning the origin, basis and purpose of laws and social systems, most scholars and authorities have unanimously agreed that existence of laws and social systems is essential for preserving individual and social interests and resources. However, clever people usually breach the law by making use of seemingly legal ways. In addition, in Islamic Jurisprudence (or the so-called Fegh), discussions under the name of usury trickeries (or Riba) have been suggested that are basically in good compliance with the concept of fraud in the Western Culture. Thus this paper, by considering these two concepts and comparing them with each other basically, examines the authorized opinion by relying on the late Imam Khomeyni’s fundamental principles in the field of frauds in Sharia and finally, it looks into articles of Iranian law about frauds and trickeries. Fundamentally speaking, it appears that frauds in Sharia and the law are neither acceptable in Islamic Jurisprudence nor in the statute law.