جستجوی مقالات مرتبط با کلیدواژه « قاعده عدل و انصاف » در نشریات گروه « فقه و حقوق »

One of the most complex topics in jurisprudence and criminal law is the discussion of the general knowledge of the existence of a crime agent between two or more individuals. It is argued when individuals act independently but simultaneously, similar acts are committed, and the action of one of them, which is not clearly identifiable, commits a crime to a third party. Or they have committed some crimes and others have not acted but the cause of the crime is not definitively established. The Imamiyya jurisprudents suppose that the issue of retribution is ruled out, even where it is a deliberate crime, but the question here is who is responsible for paying the blood money? The present article examines the jurisprudence of the person responsible for the payment of blood money in the crime of killing a person, with a particular view of the issue of equity and the rule of fairness and equity.

Since the discussion of the general division of the treasury among Muslims has been of great importance for a long time, the observance of justice and equality in this division is important. The jurists to prove the necessity of observing equality in dividing the possibilities into some verses of the Qur'an such as Qast verses and verses of justice and some narrations such as the narration of Hafs Ibn Ghias from Imam Sadegh (as) and the narration of Abi Ishaq Hamedani from Amir al-Mu'minin (as) and the definite biography of the infallibles They have adhered to the Shari'a and the Shari'a. In addition to all the above arguments, the rule of justice is another reason for this claim. In the words of many jurists, it has been stated with different interpretations that the most important document of this rule is the rule of reason. The example of justice in the division of possibilities among Muslims can be considered as settlement; Because the only reason for receiving these facilities from the treasury is the Islam of individuals in society. And Islam cannot be ranked and distinguished; And none of the members of the Islamic society can be considered superior to another in this regard. But since in the current conditions of society in some cases it is not possible to divide the facilities equally; It is necessary to examine the reasons for equal distribution of facilities.

Penalty clause is one of the sanctions of contract performance according to which parties intend to pay liquidated amounts as remedy for breach of the contract (Art. 230 Iranian civil law).The purpose of such agreement is to secure the contract and to facilitate the remedy without complexity of proceedings. Its nature in Iranian legal system is remedy not penalty and punishment. It isnt revisable by court. Although it's not necessary for the penalty clause to be exactly equal to actual damages but in some cases its specified amount is excessive and it's not in reasonable proportion to actual damages so far there isnt reasonable proportion between them. In other word, because of undesirable economic status and other conditions of the contract, the promisor can never pay it, thus such agreement is unreal, unjust and inadequate matter. In this case, there are two prominent views. Some authors state that penalty clause is absolutely correct and operative, and the others believe that the court can adjust it. But this sort of clause is void in our view. In this article we will explain nature and characters of penalty clause and also the legal status of unjust penalty clause.