seyed mohammad moosavi bojnourdi

The online registration of advocacy in Iran in practice is different from the past and has a new structure and follows new bylaws in the field of registration rights. There is no necessity for the awareness of the lawyer and client regarding the dismissal or resignation in the instruction for using E-deeds registration websites. In American Law, although the Law of the Notary Public has envisaged some rules regarding online registration, the issue of online registration of advocate and its dissolution has not been mentioned and has only mentioned some general rules. The prevailing viewpoint of the Imamiya jurisprudents and that of Imam Khomeini has similar approach with the instruction of the enforcement of notary instructions regarding the necessity of the awareness of the advocate. The nature of the voluntary dissolution of the advocacy from the viewpoint of jurisprudence and law has been comparatively studied in this research. The findings of this research show that with the establishment of the Online Registration System, and the significant issue of the announcement and explicit information of the client and advocate of dismissal or resignation or implementation of the delegated subject, in order to protect the security of the legal relations of the people and reduce legal disputes and remove the shortcomings of the Iranian legal system, the advocate and the client must be immediately informed through electronic notification about dismissal or resignation or withdrawal or any other issue related to the advocacy by improving the legal mechanisms through ADLiran.ir (Sana)Website. The third persons too should be able to receive information about the authenticity of the documents and deeds through the website of the State Organization for Registration of Deeds and Properties. Thus, the number of the deals that are carried out due to the lack of awareness of the advocate of his/her dismissal will be reduced and the number of legal lawsuits too will be reduced.

The “no loss principle” or the “principle of no harm” is an all-embracing principle in Fiqh (Islamic jurisprudence) that serves as a criterion for judgments on political and social issues. Despite consensus of Shia and Sunni jurists on the generalities and backbone of “no loss principle”, there is difference of opinion in interpretation of the traditions on this principle. This research work intends to analyze the views expressed on this principle by Sheikh Ansari, the founder of the School of Negation and Imam Khomeini, the founder of the School of Forbiddance. Following clarification and analysis of both views, we have studied the results coming from each theory and their application in Sharia law. In view of Sheikh Ansari and the majority of jurists, Islam has never issued a verdict that may impose harm on the servants of God. As a contemporary jurist, Imam Khomeini has reviewed “no loss principle” from various angles to present a new approach to the issue. In case of accepting Imam Khomeini’s view, the “no loss principle” is no more a jurisprudential principle; rather, it must be considered a political and state decree.

One of the famous rules in Islamic jurisprudence is the rule of Al-Khiraj Bil-Ziman. This tradition has not been reported in the Shia sources of tradition and according to most of the Shia jurisprudents this tradition is not authentic. Regarding its connotation too there are differences of opinion among the Imamiya and other jurisprudents. However, since this rule has serious legal consequences, it is pertinent to study its document, connotation and controversies around it as well as the viewpoint of Imam Khomeini. Some of the jurisprudents argue that this tradition denotes to civil jurisprudence and responsibility and maintain that according to this rule everyone is responsible for the good itself and has no responsibility regarding its benefits. The Sunnis maintain that this rule applies to responsibility in absolute term, either forged or forced. Another group like Ibn Hamzeh, argue that this rule applies only to cases that are based on contract. Sheikh Ansari and many other jurisprudents confine the jurisdiction of this rule to proper contract and maintain that according to this rule benefits follow the origin itself. On the other hand, Imam Khomeini maintains that tribute is tax and has discussed the denotation of this rule in the field of governmental jurisprudence. He argues that according to this rule, the Islamic government is responsible for protecting the interests of the Muslims in lieu of receiving taxes from them. Attempts have been made in this article to discuss variousviewpoints and choose the most justified one.

It is essential to protect family as the major component of the society. To that end, identifying the rights of the couples and observing these rights by either party will result in family reinforcement. One such right is the non-financial rights of the couples toward each other. The legal system of Islam has certain fundamentals and codes for the rights and relations governing the life of the spouses, so that some rights and duties are suitable for husbands while some others suit the wives. The basis of the enactment of these rights and duties rests on the inherent differences between the two genders. In view of Islamic jurisprudence and law, the non-financial rights and duties of the couples fall into three categories (joint, exclusive for wives, and exclusive for husbands), but since non-financial rights of the spouses are heavily dependent upon common law and ethics, they have been subject to recurrent changes in the course of time. The opinions expressed by the jurists and thinkers, too, have not been independent of the common law and public opinion in their time. This research work, developed on an analytical method, intends to study the three above-said categories concerning the non-financial rights and duties of the married couples, through reference to, contemplation on, and review of Imam Khomeini’s works.

Inheritance is one of the most important legal foundations in any society and it has always been under certain rules and regulations in different legal systems. These rules and regulations have been chiefly shaped up according to the conditions, time and the living place of the human beings. As a matter of fact, upon a change in the living conditions, these rules and regulations must also go under change to let the society embrace rules proportionate to its time. Therefore, the rules and regulations on inheritance have gone under drastic changes and passed behind stages of evolution in the course of time and place among the past generations and civilizations. The inheritance laws in the Arabian Peninsula has been no exception to this, i.e. they have been enacted and developed based on the rules and principles governing the entire peninsula. With the advent of Islam in that land, the rules and regulations on inheritance experienced great developments. In this paper, we have tried to review the views of jurists and Imamiyah theoreticians at law, as well as Imam Khomeini’s views on inheritance. While presenting a precise definition of the word inheritance, we have tried to clarify the rules and fundamentals serving as the basis for inheritance laws.

One function of the family institute is reproduction and since survival of mankind is subject to this function, it is important because it also strengthens the family. However, some families due to various disorders, are not able to naturally perform this function of reproduction and childbearing. The progress in reproduction technology over the past few years has helped many to bear children and in some cases has raised hopes for others to bear children in the future. Artificial or rented womb is one of the new methods of fertility. This issue can be studied from two aspects: 1 – It is allowed from legal and jurisprudential point of view to use this method? 2 – What are the legal implications of this method such as prohibition of marriage, child custody, etc.? The present paper is an attempt to study the latter aspects.

An accused, who is being investigated through penal proceedings, is innocent unless proven guilty by a just trial. This is the presumption of innocence which is accepted in all legal systems including in the Islamic system.
On the other hand, one of the important effects of the presumption of innocence is the principle of freedom of the accused during the accusation period or legal proceedings. However, despite the existence of these principles, due the necessity of investigations and security measures, the juridical procedures allow temporary detention as a judicial bail. But, this judicial bail is essentially in contradiction with the principle of freedom and presumption of innocence, for as has been argued in this article, the prime principle is unlawfulness of detention before trial. Therefore, there is a contradiction between temporary detention and its primary fundamentals. The present article is an attempt to prove the contradiction and its exceptions from jurisprudential point of view with special reference to Imam Khomeini’s viewpoints and its contrast with international documents.

The issue of property ad ownership of intellectual properties enjoys a very high significance, for through a proper or a wrong analysis one can extend the limits of property and ownership to the borders of intellectual properties or make a distinction between material and intellectual properties. The present article is an attempt to explain the legal domain of property and ownership in the field of intellectual properties. Hence, the meaning, concept, nature, and different types of ownership and property have been explained and the issue has been studied in the light of these four aspects, i.e. the legal condition of intellectual properties has been discussed with regard to each aspect. The main hypothesis of the present paper is: there are no differences between the legal condition of intellectual property and ownership with other types of properties. There are jurisprudential precedents supporting this hypothesis. The existence of the element of utility and benefit as well as scarcity in intellectual properties marks the similarity between material and intellectual properties.

The Role of growth in realization of penal responsibility is among the issues that became prevalent after the victory of the Islamic Revolution when it was omitted as a criteria of penal responsibility in the Islamic Penal Code 1991 and also is the among the issues that has not been properly studied by jurisprudents.Given the significance of the role of growth in realization of penal responsibility and lopsided attention of the legislator to it, the present paper is an attempt to study the nature of growth and its role in realization of penal responsibility with special reference to Imam Khomeini’s viewpoints. In conclusion the issue of growth will be discussed in details relying on the expositions written by Imam’s disciples on his viewpoints in this regard.

Euthanasia is one of the most controversial issues of all societies today. Euthanasia means putting an end to the life of a person by himself or another person out of mercy to rescue the said person from unbearable pain and suffering or from an incurable disease. Euthanasia has different degrees and hence requires different decrees. The most important element of euthanasia is the consent of the person whose life is to be taken. The first principle in this regard is that the consent of the person whose life is to be taken is not a permission for committing the offense. In jurisprudential discussions, consent to kill has been discussed within the framework of permission or order to kill, but the viewpoints of jurisprudents are different. Euthanasia, whose main feature is consent of the person whose life is at stake, does not fall within any legal exception. Death is also dealt in the similar manner and some kinds of euthanasia should be considered as an instance of intentional murder, except the ones falling within the scope of the Article 268 of Iranian Civil Code. There are differences of opinion about scope of inclusion of this article. According to this Article, for the condonement of the compensation or retaliation as a result of the consent of the person whose life is taken, after the criminal act (of killing out of mercy), the person against whom crime has been committed must forgive, otherwise the said article does not apply to it. If the person against whom crime has been committed forgives, the next of kin cannot ask for compensation. If the act (of killing) is included within the scope of the said article, the said person will be subject to Article 612 of the Iranian civil code regarding punishment.

The present paper is an attempt to study the viewpoint of Islam towards the Protected People (Ahl Zima). In the light of the notion of time and space, attempts have been made to restudy the decrees of protected people based on Shia jurisprudence. In accordance with the Constitution of the Islamic Republic of Iran, the term Protected People refers to non-Muslims who follow the Divine Books (Jews, Christians and Zoroastrians), who are protected by the Islamic Government on the basis of the Tribute Agreement. Although they enjoy certain citizen rights in accordance to traditional reading of Islamic teachings, they used to face some limitations because of rejection of domination of infidels over Muslims, which included payment of tribute, prohibition of construction of new religious sites, prohibition of advocacy of Muslims, limitation in some transactions and differences in amount of blood money (compensation). However, relying on the notion of time and space, Imam Khomeini believed that the said decrees are revisable. Since inference of decrees are based on their exigencies and detriments, taking into account the regional and international exigencies can be a criterion for inference of many decrees at this stage of time. Hence, by taking into account the requirements of time and space as well as peaceful coexistence of the Muslims with the People of the Book, the decrees on the People of the Book are revisable. In fact, the subjects related to the decrees pertaining to the Protected People have undergone change and hence the said decrees are changeable.

The emergence of the concept of citizenship is among the referents of formation of the first governments. Governments receive their credit and power from citizens and at the same time have certain duties and responsibilities towards them. At the same time, citizens have certain duties towards governments. Imam Khomeini has fundamental viewpoints about the rights of citizens. His theoretical viewpoints are based on the rights of the ummah. The present paper is an attempt to study Imam Khomeini’s viewpoints about three pivotal rights in the field of citizenship rights (freedom, justice and security) and the rights derived from them.

The universalization of the use of computer and Internet in less than half a century has introduced to the world a phenomenon called Internet (computer) crime in general and Internet theft in particular, which can be very endangering from security point of view. The present article is an attempt to study this offense from jurisprudential point of view. Also it will be compared with the theft whose punishment is mutilation of fingers. The findings of the present paper show that despite the fact that mutilation of thief’s fingers can be deterrent, it cannot be a suitable punishment forthe Internet or computer theft. However, since there are still some doubts about this kind of theft, the Islamic punishment of mutilation of fingers cannot be used for Internet or computer theft based on the rule of Dar’ ul-Hadd.

Financial decisions require a certain level of rational maturity and understanding. The question is whether growth alone is the subject of rightfulness of transactions and maturity does not have any role or both growth and maturity are the conditions of rightfulness of transaction or one of them is sufficient for rightfulness of a transaction. Another question is whether minor who is capable of discretion is competent to transact or not? What is the meaning of minor who is under guardianship? Is a minor person who is capable of discretion absolutely under guardianship or is entitled to act individually? When it is said that a person who is capable of discretion is under guardianship, does it mean that he/she is not entitled to transact individually? These are the questions that some of the jurisprudents have tried to provide answer to in their works. By studying these works, one can come to know that there are differences of opinion among the jurisprudents regarding the minimum level of growth for financial activities. Some of these viewpoints indicate that attaining the age of discretion is sufficient for some financial activities while it is not necessary to attain perfect intellectual growth. Some of the jurisprudents rely on the Quranic verse referring to growth in their arguments. Imam Khomeini's Kitab al-Bei' is one of the most important sources in this regard which gives a full interpretation and explanation of the verse growth.

The present paper is an attempt to verify the correctness or incorrectness of setting conditions in a marriage contract. In the first place, the concept of choice of condition, its duration, the document of choice of condition and necessity of lack of incompatibility of condition with the Book and tradition are discussed. Also the jurisprudential and legal viewpoints about choice of condition in marriage contract are discussed. The viewpoints of the jurisprudents, the civil code and the viewpoints of jurists are also discussed.

The present article is a comparative study of the issue of Istishab (authorizing the previous state) from the viewpoints of two contemporary usuli jurisprudents, Imam Khomeini and Mirza Hassan Bojnourdi. The general Istishab is conceptual Istishab which can be applied to several people and is divided into three kinds according to the principles of jurisprudence. Imam Khomeini maintains that Istis-hab is applied in the first and second general kinds. The Imam has answered the questions regarding the second general kind by relying on the argument of advocates of common sense and then has explained the third kind by elucidating the way of considering common sense in individual characteristics or commonality of individuals. In his viewpoint, with regard to the third general kind, if common sense has taken individual characteristics into consideration, Istishab is not applied, but if the commonality of individuals is taken into consideration as subject of common sense, then Istishab is applied. The late Mirza Hassan Bojnourdi allows application of Istishab in the first and second general kinds and provides his answer to second kind by relying on the unity of nature of the definite issue and the issue under question. With regard to the third general kind, he argues that the criterion is unity of the advocates of common sense and hence, Istishab can be applied only when there are uncertain issues.

One of the methods of prevention of injury or damage to parties to a deal is the practice of option of defection by the person entitled to option. The parties to a deal are entitled to such a right only when the subject of the deal is found to have been defected at the time of contract. But if the concept of defection is not properly defined or if there is no criteria or standard for definition of the concept of defection, then the practice f option of defection becomes difficult. As a result, legislation of the law on compensation of the injury is not practicable. Attempts have been made in the present paper to critically study the definitions given by the jurisprudents and refer to their shortcomings in the complicated industrial society today. Also in order to delimit the concept of defection, attempts have been made to make a distinction between this concept and other close concepts such as lack of attribute, lack of quality, etc.

One of the most important objectives of the Islamic government is vindication of rights of those who are entitled to them, rejection of wrong and wrongdoers, and finally implementation of divine commandments and rules in arbitration and judgment, which is called juridical justice. This can be achieved only by an independent, justice-based, powerful, firm and decisive judicial system. Hence the judicial system should be designed in a manner that the lives, status and properties of the people are protected by the law and in judicial practices. Judgment in an Islamic society should be based on the teachings of the holy Quran and the precept of the infallibles, particularly that of Imam Ali(AS). Hence, Imam Khomeini’s viewpoints about characteristics of juridical justice, based on practical precept of the Infallibles, are very necessary for the Islamic society. Since the judicial procedure has more to do with the form not the content and currently judicial systems and procedures often copy each other and are constantly changing, it is necessary to study just judicial procedures in Islamic judicial system and introduce the characteristics of Islamic judicial procedure.

The Guardians Council is one of the most important institutions in Iranian political system, hence its study is very important. Therefore, in the first place, its status is compared with similar institutions in other countries to explain the philosophy of its establishment. Since supervision over the management of the country at macro level, including the elections, is among the prerogatives of the Guardians Council, it is important to clarify its role. However, due to the lack of clear reference to the nature of its supervision, there are controversial viewpoints in this regard. Since the council is also vested with the power to interpret the Constitution, it has interpreted the Article on its prerogatives and called its supervision approbatory. Despite considering this interpretation binding, due to the existing problems, there are still some debates about this issue. Hence attempts have been made in the present paper to offer an informative interpretation of the said article which can provide an effective, logical and fair supervision.

Life insurance is a contract on the basis of which the insurer as a quid pro quo for receiving certain amount of premium undertakes to pay a certain amount of money to the insured party or his/her advocate after his/her death or after a specific period of time.Life insurance may be related to the danger of the death of the insured or to the survival of the insurer. The other type of life insurance is a combination of both. However the number of people involved in a life insurance may be up to four: insurer, insured, user and beneficiary. People can manage their expenditures and thus, by paying regular premiums to insurance companies, collect an asset for the future expenses of their children education, their marriage, dowry, construction of houses….

Justice and ethics are among the categories constituting the foundation of the world and have always preoccupied man. There are different viewpoints about these categories. However, for sure, they have their roots in man’s nature. Hence the rules and regulations related to them must be in congruence with man’s nature; otherwise, man will witness oppression, nastiness, suppression and unethicalness. Attempts have been made in the present paper to discuss the approach of Imam Khomeini to these issues and also to offer a comprehensive definition of them and to discuss their role in the formation of Islamic law and jurisprudence and mention some of their referents in their observation in the laws of Iran.

Cloning refers to reproduction of human beings through non-sexual methods. It is of two kinds: curative and reproductive. In reproductive cloning, whose result is reproduction of a human being, the cloned human being will enjoy all rights like other members of society such as identity, lineage and inheritance. On the other hand, the members of society have certain responsibilities towards such a person. Among the rights of a cloned person as a member of society is lineage. There are however differences of opinion about the parents of the cloned person. What is for certain is that a cloned person is entitled to have a father. There is no legal problem regarding the identity of such a person; the donor of semen is the legal and natural custodian of the cloned baby and shoulders the duties envisaged in the civil law for a custodian. Similar laws regarding inheritance, retaliation, blood money and other rights applying to all people in the society applies to the cloned person. Regarding the duties of society towards a cloned person, it should be mentioned that the duty of the society towards a cloned person is just like its responsibility towards people born out of normal marriages. The society should grant the rights of such persons and must not deal with them as a commercial commodity. Hence human values must be taken into consideration in dealing with such a person.

Transaction contract by an uncommissioned agent is one of the controversial and widely discussed issues in jurisprudence. Some of the jurisprudents consider it illegal while others maintain that it is legal; still there are others who discuss its variant types. Attempts have been made in this research to discuss different viewpoints about the transaction contract. Also the later permission of the owner and its impact on the transaction contract by an uncommissioned agent has been discussed to find out if the consequent permission of the owner is effective from the time of the contract or from the time of the issuance of the permission.

The present article is an attempt to study new issues in the field of lineage of children born out of artificial insemination. The focus of the present paper is to study the status of father and mother of such a child without discussing its permissibility or otherwise. The meaning of the concept of artificial insemination, its various kinds and the relationship between the child and the semen donor and others involved in such a birth as well as the lineage of the child are elaborated on the basis of the Quranic verses, traditions and other documents. The hypothesis of this paper is that the child belongs to the donor of semen and is legitimate.

Marriage contract leads to certain economic, legal, individual and social consequences for both husband and wife. Hence after the marriage contract is signed both the parties to the contract enjoy some rights and are bound by some duties towards each other. Each would enjoy certain rights while have to shoulder responsibilities within the framework of the contract. In the Islamic jurisprudence and Iranian law, which is based on the Quran and tradition, man is responsible for paying alimony to his wife. There is consensus among the jurisprudents on this issue but they differ on its details. The present paper is an attempt to discuss alimony in Iranian law.