جستجوی مقالات مرتبط با کلیدواژه « تصرف » در نشریات گروه « علوم انسانی »

One of the most important in Islamic jurisprudence, which is also widely used in law today, is the issue of usurpation of property without an owner. Although Article 308 of the Civil Code defines usurpation and Article 311 of the same law stipulates the guarantee of usurpation, these articles are not clear about usurpation of ownerless property. This research investigates the possibility of realizing usurpation and guaranteeing it in case of usurpation of such property.

The method of studying and gathering information and research findings is descriptive-analytical.

Ethical Considerations:

 All ethical principles governing research have been observed in the presentation of this article.

Some people do not consider it possible to guarantee usurpation in such circumstances. This group, referring to the fact that public rights do not have the ability of exclusive acquisition for users and only the right of priority is established in the use of the right, they doubt the possibility of realizing the guarantee of usurpation in relation to the possession of property without an owner, and they believe that the possession of private property and Government property is different in a special sense from possession of public property and commons. This article, while analyzing different and distinct elements and conditions of usurpation, has tried to evaluate the possibility of realizing usurpation and the resulting responsibility in ownerless property such as public property and public commons, and finally examine the usurper's responsibility for the possession of this property.

Introduction:

The tradition of burying the deceased on private properties, resulting in the formation of family gravesites outside public cemeteries, is a practice driven by a complex mix of emotional, financial, and urban development considerations. This practice, which includes the establishment of family mausoleums by aristocratic families and notables, is historically rooted in various countries, including Islamic religious cities concerning certain esteemed Islamic scholars. While some of these private burial sites have transitioned into public cemeteries, their inception was not intended for public use, underscoring a tradition of proprietary control over such burials. The practice raises significant questions within the framework of Islamic jurisprudence and law, especially concerning absolute legal authority of the owner to exercise dominion or control over property [Taslit] (absolute right of an owner to deal with his property as he wishes) and its implications for burying individuals on private property. This inquiry seeks to explore the stance of Islamic law and jurisprudence, alongside modern legal systems, on the legality and permissibility of such burials amidst contemporary urban and societal challenges.

 Research Question :

The central question guiding this research is whether Islamic law and jurisprudence, alongside national laws in Islamic countries, permit the burial of the deceased on private property, given the broad implications for urban development, public health, and societal norms. This question encompasses the investigation of the extent to which the principle of Dominance within Islamic jurisprudence allows for such practices and how contemporary urban living requirements and societal interests intersect with or diverge from these traditional practices.

 Research Hypothesis :

The hypothesis posited by the authors suggests a potential reconciliation between the Islamic jurisprudential rule of absolute legal authority of the owner to exercise dominion over property [Tasleet] and the no harm principle [La-Za’rar], proposing that it might be permissible to bury the deceased on one's private property under specific circumstances. This hypothesis implies a nuanced understanding of property rights within Islamic law that accommodates the evolving needs of modern urban societies while adhering to Islamic legal principles and societal values.

Methodology & Framework, if Applicable:

The methodology adopted in this study is descriptive, analytical, and doctrinal, aiming to dissect and understand the multifaceted issue of burial on private properties within the context of Islamic jurisprudence and law. This approach involves an extensive review of primary and secondary sources, including jurisprudential rulings, works of Islamic scholars, and legal texts, to elucidate the foundational Islamic ruling on burial practices. The analysis further extends to the examination of modern positive law, particularly Iranian Civil Law and Islamic Penal Code, and its treatment of such burials considering environmental, social, and urban development aspects. The doctrinal framework is employed to interpret and reconcile traditional Islamic rulings with contemporary legal standards and societal expectations, aiming to provide a comprehensive understanding of the subject matter and propose viable legal and religious solutions.This paper presents a thorough investigation into the complex interplay between religious doctrine, legal principles, and societal needs regarding the burial of the deceased on private properties. By examining the practice through the lenses of Islamic jurisprudence and contemporary law, the study seeks to offer insightful perspectives and potential reconciliations that respect both traditional values and modern realities.

Results & Discussion :

The comprehensive analysis conducted in this study reveals a nuanced spectrum of perspectives within Islamic jurisprudence and Iranian law regarding the burial of the deceased on private properties. Central to this discourse is the principle of personal ownership and the rights it encompasses, which traditionally include the disposition of property in various manners, burial of the deceased being one such manner. Despite some Islamic scholars' interpretation of narrations from the Prophet of Islam (PBUH) as prohibiting such burials, a closer examination and alternative interpretations suggest that the practice can indeed be permissible. This permissibility is supported by the Sunnah of the Ahl al-Bayt, absence of explicit prohibition by the Islamic legislator, and the overarching principle of dominion over one's possessions.    However, the discourse does not end with the establishment of permissibility. The study delves deeper into the social jurisprudence perspective, highlighting significant concerns associated with private burials, such as psychological distress, potential for disease transmission, environmental degradation, and harm to others. These concerns present formidable challenges to the outright acceptance of burial on private property as a permissible act. The Iranian legal system's stance, reflecting these concerns, explicitly prohibits such burials, incorporating both criminal penalties and provisions for civil damages in cases where private burials cause harm.

Conclusion:

The intricate interplay between religious doctrine, legal standards, and social welfare culminates in a complex yet critical conclusion regarding the burial of the deceased on private property. While Islamic jurisprudence provides a foundational permissibility based on property ownership and rights, the practice's potential social, health, and environmental repercussions necessitate a more cautious approach. The study underscores that the absolute prohibition observed in Iranian substantive law, although seemingly at odds with traditional Islamic rulings and historical practices, is primarily justified by the tangible risks associated with private burials.     However, the study proposes a balanced approach, advocating for legislative reforms that allow for exceptions under stringent conditions. Such conditions include societal acceptance, absence of harm, and cases where the deceased's burial site could serve a broader community interest, such as promoting knowledge or religious devotion, typically applicable to celebrities or scholars. This approach aims to reconcile the initial permissibility with contemporary societal needs and legal frameworks, suggesting a case-by-case evaluation rather than a universal application.Furthermore, the discussion on affordability and access to public cemetery spaces opens another dimension to the debate, suggesting economic considerations as a potential justification for private burials in specific scenarios. This perspective highlights the need for a legal and religious framework that accommodates both traditional Islamic principles and the practicalities of modern societal living. In conclusion, while the study affirms the foundational permissibility of burial on private property within Islamic jurisprudence, it also acknowledges the multifaceted challenges posed by such practices. The recommendation for a legislative approach that allows for exceptions under carefully defined conditions reflects an attempt to harmonize religious principles with the realities of contemporary urban life, emphasizing the importance of adaptability and consideration for the common good in Islamic law and jurisprudence.

Whether or not it was permissible to pay tribute to the person in trust with the assumption of humiliation of other conditions of mutual respect, despite being the place of development، It has not been addressed in the laws of the subject, but research in the jurisprudential sources، It is indicative of the challenge of this issue among the jurists of the wise and contemporary in such a way that three jurisprudential views can be designed: A group of jurists with respect and another group, on the condition of mentioning the prayer mentioned in some narrations, gave a license to be allowed to write; and some others gave a license with a license with a license. By examining the jurisprudential foundations of the problem and especially with the synergy of the jurisprudential foundations of the views of the people, the opinion-writers are based on the new perspective plan with a combination of the second and third perspectives؛ thus, in an assumption that other than the deposit, other property of the debtor is available to the owner of the right to know, the verdict of the deposit is a license with the fraud، But if only the property is available to the rightful owner, the same property is a deposit and the possibility of access to his other property is not in any way consistent with the second point of view، Can afford a license without aberration. Since the provisions of Articles 617, 619 and 620 of the Civil Code, which governs the necessity of rejecting the trustworthiness and sanctity of the wise، To the place of comparison, there is a discussion of the common lawmaker waiting to give the decision in detail in the type of purification of the people in the property of the deposit, the purification of the people as the pursuit of the law.

How to extinct option is one of the most important topics in options. The role of possession in the unstable contract by option of meeting place is the main question in this research which has been answered by descriptive-analytical method. According to the findings of this research: Firstly, the criterion for realization of the examples of possession is custom; secondly, possession is accepted as an extinguishing of the right of option of meeting place and thirdly, there is no need to obtain consent to the sale (Bayʿ) and waiving options for the realization of possession. In other words, the possession has subjectivity, not instrumentality (indicative characteristic); fourthly, up to the certainty of this ruling is the extinction of the option of meeting place by customer’s possession in the object of sale. However, there are different jurisprudential views regarding the generalization of its decree to seller’s possession (Article 450 of the Civil Code) in the consideration and customer’s possession in the object of sale, and buyer’s possession in the consideration (Article 451 of the Civil Code) and other options. This is despite the fact that Civil Code accepts possession’s extinguishing of all options in articles 450 and 451 of the Civil Code. The generalization of this law to all options in the mentioned articles seems to be criticized.

Imagination is the faculty that performs the combination and elaboration of sensory, imaginary, illusory and intellectual forms and meanings. Muslim philosophers have taken two different approaches regarding this faculty. Some believe in reducing and even denying it, while others accept its existence. Philosophers who believe in the existence of this faculty have mainly attributed two types of functions to it. The first function is the combination and elaboration of different forms and meanings, which, of course, the examination of the available reasons and evidence leads us to the conclusion that the mentioned function is the action of soul (nafs) itself and not one of its faculties. The second function is to transform the general concepts of revelation into details and sensible objects, as well as to ideate the intellectual revelatory forms. Nevertheless, the great Muslim philosophers, including Ibn Sīnā and Mullā Ṣadrā, have turned a blind eye to this function of the imagination by emphasizing the function of the Prophet's common sense and imagination in observing and perceiving partial and tangible revelatory forms and meanings, contrary to what some contemporaries bring up about the subjectivity of the Prophet's soul in the process of receiving revelation.

One of the most important areas of civil liability, civil liability is derived from possession lawsuits, during which the aggressor; By committing a behavior on his own or another's property, he causes damage to others. In England, possession lawsuits can be filed in the form of two lawsuits: aggressive (adversary) and private (private) possession lawsuits, and contrary to Iranian law, there is no provision for obstruction lawsuits, and this lawsuit is also in The format of the nuisance suit is brought up. Now, the basic question is, which of the well-known and governing theories of civil liability does the English legal system follow in dealing with possession claims (opposed possession and nuisance). To answer the question, the case law of England, which is the main basis of the country's legal system, must be examined.This article was written with the aim of civil liability arising from possession claims in English law and the possibility of adapting it in Iranian law. In terms of the purpose, the present research is an applied research, and in terms of the implementation method, it is considered part of the descriptive-analytical research. The library method was used to collect information, and the data collection tool is mostly written and theoretical. The findings of the research showed that the seizure lawsuits in Iranian law include: aggressive seizure lawsuit, nuisance lawsuit, and obstruction lawsuit. Like the contracts, the legislator has stated the common and specific conditions and elements of these claims, and the persons and judicial authorities are obliged to submit them under the same title by meeting the elements and conditions mentioned in the law. The immovable property of the object of possession, the claimant's prior possession, the defendant's right of possession, and the aggressiveness of the defendant's possession are common elements of all three lawsuits. On the other hand, the findings of the research showed that the civil liability resulting from possession claims in the laws of Iran and England is based on fault. Of course, in the case of aggressive occupation, the plaintiff does not need to prove the occurrence of damages in order to claim damages and compensation for the days of occupation, and mere occupation without consent is sufficient to fulfill the responsibility of the subsequent occupant. However, in the case of nuisance both in Iranian and English law, the claimant must prove the damage, which means that in addition to interference and disturbance in possession, damage is also one of the elements of filing a liability claim. English judges, by analyzing the elements of similar lawsuits, apply the result in similar cases, and over time it becomes the custom of judges without waiting for its legislation by the legislature.

In most legal systems today "good faith" is a well-known and effective concept in legal relations. One of the most important aspects of this effect is the effect of good-faith in the transfer of ownership. So if the person in possession; was acted in good-faith and unaware of the other’s rights to the property transferred; subject to some conditions, his good-faith causes the transfer of ownership to him and remains immune from real owner. This approach has been reinforced in German law, meanwhile specifying in legal provisions, by the establishment of principles and rules by jurists. In English law, however, the concept of good-faith has not been as popular as that of German law. However, the vast powers of the courts and the adoption of realistic, justice-based approaches by them, have led to the protection of good-faith possessor and this approach has been extended to some legal provisions. The concept of good-faith is also recognized in domestic law and is specified in some legal provisions. considering the dynamism of “Shi’a jurisprudence” as the basis of rules and legal provisions in domestic law And the lack of any conflict between the essence of good-faith and this basis, It seems that The approaches of the German and English legal systems can be used to strengthen these domestic legal institutions whose actions lead to the protection of the good-faith possessor and change some traditional approaches which the application of them would lead to the detriment of the good-faith possessor.

The management of economic affairs is an integral part of any political system, which is entrusted to certain institutions or individuals according to the legal, cultural and managerial conditions in each society. In the Islamic society, this procedure is entrusted to the legal guardian as the highest authority, and in this research, the jurisprudential foundations of the legal guardian in economic affairs will be discussed. 

The method of this article is analytical and descriptive using library tools.Ethical Considerations: In writing this article, the principle of accurate and trustworthy referencing has been taken into account.

There are many jurisprudential foundations such as the management of hasbiya affairs, the management of anfal, khums and zakat, and the organization of economic affairs in Islamic society, which, due to the prevention of chaos and being placed in a certain institution, is considered as the guardian of jurisprudence. Continuity of government in the era of absence of Masum (AS) has been entrusted. 

The jurisprudential foundations of the guardianship of the jurist in economic affairs are due to the need of the Islamic society to entrust matters to an authority that is aware of the rules of religion and to organize economic affairs, which exist in different forms in different societies. But in the Islamic society, it has long been considered among the powers of the jurist.

Having good governance, transparent and fair laws, and competent and knowledgeable administrators is the right of citizens. Over a decade has passed since the enactment of the Law on Determining the Legal Status of Land and Unofficially Registered Buildings in 1390 (2011), and this law appears to be permanent. However, the question arises whether this law, as the latest legislative effort in the field of property registration during this relatively long period, has successfully met the needs and demands of citizens seeking property registration and government interests. This research, using a descriptive-analytical method, hypothesizes that in this regard, the legislator has made mistakes, and from the perspective of citizenship rights, the law in question has not been properly critiqued. Therefore, the main objective of this article has been a reexamination of this law and the presentation of a better model, ultimately suggesting that the legislator should consider revising this law.

The paradigm of Islam in the issue of women and their rights provided the ground for many fundamental changes in the legal system of the Islamic world regarding women; The issue of financial independence of the wife is one of the challenging subsets of this paradigm, the ambiguity of which brings many harms in various fields. The current research aims to review and analyze the concept of wife's financial independence in the paradigm of Islam, and aims to determine the scope of wife's financial independence.

The present research is analytical and has been carried out with the library method. The Qur'an and hadiths as a research community and opinions related to the goals of the jurists' research have been used as the explanatory bases of the research.

It indicates that some jurists consider the range of women's use of their private property to be limited to the preliminary components of ownership, but after the fulfillment of the prerequisites, ownership is unconditional and absolute. The second group of jurists believe that women's ownership of their property is not absolute but relative.

The financial independence of the wife in property and possession is certain in the religion of Islam, but the wife should not neglect the definite duties of marriage by relying on this independence.

The Sadrian School has a high potentiality to answer many questions in the field of architecture. This article tries to explain architect's activity based on the Sadrian School. The method of research is to analyze, interpret and infer from Mulla Sadra's thoughts to explain the architect's activities in different aspects. Architect's activity is one of the three basic works, which meets the fundamental need for a place to live in different levels. Therefore, a system of concepts related to the architect from craft and purpose, encompassment and disposition, order and cause, beauty and love are extracted from Mulla Sadra's words and discussed.The architect as a purposeful creator has imaginal and intellectual forms of the life of the man and his acts. He tries to provide a place for living as a platform for doing different activities by the disposition of the environment and changing dimensions and relationships in nature. The architect according to his/her existential level encompasses the world and recognizes causes and effects in the perfect system of existence. By dispositioning the environment in order to make a place for human life, he/she actualizes an order in nature that becomes the ground for humans and other beings to reach their desired perfection. By perceiving beauty and choosing the beloved, he regulates his intrinsic faculties. Through this inner order, the architect disposes and changes the world, and his activity becomes the manifestation of the beloved's perfect form, desirable attributes and actions.

Ontological relationship of human actions with afterlife punishment which it is referred to "the embodiment of actions", has been particular importance to Muslim scholars, especially the mystics. Ibn 'Arabi, by introducing topics of anthropology and Perfect Man, takes a great step in explaining the subjects of the embodiment of actions and his commentators tried to proof this view. The present paper examines five attributes of Perfect Man, indicators such as the caliphate, disposition, ambition, comprehensiveness and knowledge. The comprehensiveness of Perfect Man causes the presence of all the worlds to him and the emergence of his intuitive knowledge to those worlds and revealing the inward entities to him. In addition that, Perfect Man with two attributes; disposition and ambition, is capable of creating external objects and proves the creation of inner actions by the soul in the afterlife.

A Survey on the Right of Lien : Conditions and its effects in View of Iran and England Law . This essay will concrete on comparing Iran Legal rules in regard of right of lien with England ones . In this field , it can be said that territory of this right in Iran legal system is wid er than England one . This right is available In England law for both main and subsidia ry obligations while that right is available only for main ones . Beside in English law there is a possi bility for resale as one of effects of right of lien performance while in Iran law buyer or purchaser except for contract recessi on and return of property , can not do that . Where an obligation is divisible Iran and England method in the field of performance of right of lien is alike .

Man’s role and domination over doing things in the world has been one of the most important issues through history that provoked intense controversies among Islamic sects such as Mu’tazilites, Asharites, Maturidites, Shiites, Salafists and the like. Their theories fluctuate between the two extremes from the absolute negation of man’s role to man’s absolute free will. After the creation of Salafism, this controversy became harsh, because some of them considered the theory a cause of blasphemy and polytheism. In what follows, the authors have tried to analyze and examine man’s share in man’s taking action in contrast to God’s domination in the light of Jajarwi’s view as a prominent scholar of Deobandi, or rather the most influential intellectual of Mamati Deobandi of Pakistan and many eastern parts of Iran. Jajarwi’s important claim is the negation of man’s power and domination whatsoever over the creation of anything in the world of nature; he considers any help or imploring for assistance from God’s saints as a cause of polytheism. This theory comes under a few criticisms such as counter-argument, criticisms of his infrastructure and of the solution.

In cases where the custodian of a minor child makes a decision whose effects continue after the age of puberty and growth, the question arises as to what the status of the decision and the transaction may be. The civil law has not stated a clear mandate in this regard. In jurisprudence this is a highly divergent issue. In general, the theories and views of the jurisprudents are based on five theories; one group consider the financial authority of custodian absolutely right and influential and the other group consider the financial authority of custodian invalid. Some jurists distinguish between the assumption of knowing about the continuation of the financial authority of custodian after puberty and the assumption of lack of knowledge. Some have explained about the current or future expediency of the minor. In the present paper, which is based on the descriptive-analytic method, it is concluded that in cases where the custodian makes decisions about the minor’s property, which has spread after his puberty and maturity, then the decisions are not valid and the minor can deny the actions taken after reaching legal age.

Violation of natural resources is a general concept that leads to irreparable damage every year. The aim of this study was to identify the most important causes and factors of crimes against forest and aggressive seizure of natural resources and change their use in Kohgiluyeh and Boyer-Ahmad provinces and how to criminalize deforestation and seizure of natural resources in Iranian criminal law.

The necessary resources for the present study were collected by referring to library resources and interviewing natural resources experts and judges of the judiciary. The required information was collected in the form of files from books, specialized journals, indexes of journals and scientific-specialized articles. Interviews with experts, officers of the Conservation Unit and legal experts of the General Department of Natural Resources and Watershed Management of Kohgiluyeh and Boyer-Ahmad Provinces and judges of the Court of First Instance and Appeal, lawyers and official experts of the province were among the other elements of data collection.

It seems that cultural and economic poverty, low punishment of criminals, population growth, lack of agricultural land, poor management and lack of specialized and committed forces in natural resources departments, as well as inadequate facilities and budget of natural resources departments against the extent of natural resources , are among the most important factors contributing to the destruction of natural resources in the province, which must be eliminated to prevent this destruction and occupation.

Informing and cultivating information about the importance of forests and natural resources, updating and integrating laws related to natural resources and forests, increasing the punishment for these crimes, removing the management of natural resources departments from agricultural jihad and making it independent in terms of administrative structure and further monitoring of government performance is one of the results of the present study.

Financial disputes are among the problems of the country and it takes a lot of time for the judiciary to settle them. The lack of rules to resolve disputes is a problem that judges complain about. For example, a person has ignorantly seized another's property and spent a lot of money on it. In these cases, the renowned majority of the jurists believe that the possessor is obliged to return the other's property to the owner if requested. This fatwa is the focal point of many rulings of the Shari’a courts in order to destroy the appropriated buildings and properties. This study, after examining the reasons presented by the proponents and the opponents, came to the conclusion that if there is a customary excuse, the owner does not have the right to demand giving back the property. He can choose between demanding an exchange or waiting for the excuse to disappear and receiving the original property, and by receiving a substitute, he prompts the delictual exchange of property between the two parties.

Obviously, we swear by what is important, respected and honored to us. Because God has spoken to human beings in their own language, they have sworn to different phenomena such as tin, olive, night, day, etc. in the holy verses in different places. We live in a world that has a special sanctity. In this article, we have tried to determine that we live in a holy world whose creator has sworn and sanctified all its phenomena according to the sanctity of the world by God and through its various parts; Therefore, we do not own anything by ourselves and we cannot seizure the world without God's permission. But God has given us this permission in several stages. The general cases of permission include the following: the importance of human existence as the Caliph of God; Also, legal and illegal things that have been stated in the Shari'a and the verses related to the implicit permission for man to conquer the world.