جستجوی مقالات مرتبط با کلیدواژه "‎conflict" در نشریات گروه "فقه و حقوق"

The conflict is one of the issues involved in the process of jurisprudential inference. Different bases in the way of resolving the conflict between the Shariah evidences and its sub-issues have a significant impact on the differences between mujtahids' fatwas. One of the micro issues in the field of conflict resolution is the validation of preferences in this field. A notable practice among jurists is to prefer and prioritize a narration that includes mention of ta'leel. Of course, the preference of the reasoned narration has opponents among jurisprudential and principled thinkers.Considering the importance of the conflict issue and the widespread use of this type of preference, this article aims to investigate the preference of causal narratives using a descriptive-analytical method.This research, with the premise of giving permission to non-textual preferences, has examined the terms validity, quality and preference condition of the narrations. Then, by searching the words for and against this preference, it has extracted and examined their evidence. The supporters of this preference have cited the strength of the appearance of the reasoned narration compared to the narration without explanation and more suspicion of its issuance. On the other hand, the objection of the opponents is the non-acceptance of the power of emergence and the lack of evidence for the validity of such a preference.Regardless of the fact that prioritizing news with reasons in the event of a conflict is a well-known practice of jurists, it seems that this type of preference is acceptable under one condition; that is, the reasons mentioned in the news are rational and not devotional.

Observance of citizenship rights and preservation of citizens' property rights in public and construction plans of the municipality and the method of observing these rights is an important matter to prevent disputes between the municipality and citizens. The result of which is a significant reduction in the cases that have been reviewed in the judicial authorities to resolve the conflict between the municipality and the citizens for not respecting the rights of the citizens in the municipal projects. In the review of votes related to municipal construction projects that are in conflict with the rights of citizens, one of the citizen's rights that greatly reduces this conflict is the observance of the citizen's right to participate in the implementation of public and municipal projects. For example, if the municipality prepares construction and public plans with the participation of the Environmental Protection Organization and with the help of environmental activists, it prepares these plans in such a way that the environment is protected as much as possible, and if a problem is found, it is immediately assisted by the organization. If protecting the environment solves that problem, or in order to protect the environment, conduct trainings and set regulations within the organization to ask citizens to respect this right, the conflict between public and construction plans of the municipality will be greatly reduced.

In many cases where there is a conflict between two requirements and Sharia obligations and the obligee is not able to fulfill both obligations, the identification of the more important obligation depends on comparing the titles of Sharia obligations and the amount of religious attention to them. In this article, it has been tried to provide criteria for determining the importance and prioritization of Sharia requirements based on narrative evidence, and to check the validity of some of the criteria that have been proposed or can be proposed in this context. In this regard, while searching in the words of jurists and scholars of principles and analyzing and criticizing the views, we have said that things such as specifying the priority or lateness, specifying the emphasis and diligence of the Sharia, the number or lack of number of texts, the greatness of the sin or the smallness of the sin can be used as a criterion of priority. Also, the priority of things related to blood and sexual pleasure, the priority of a person's life over body parts, and the priority of humans over animals are acceptable. However, matters such as the priority of body parts over sexual enjoyment, the priority of sexual enjoyment over property, the priority of one's life over others, the priority of human rights over God's rights, or vice versa, cannot be used as criteria for prioritization.

Animals have played an important role in armed conflicts since ancient times. Transporting supplies, soldiers and military and medical equipment, searching for wounded soldiers, damaging enemy positions, especially by detonating bombs attached to animals or their carcasses, are among the most important forms of using animals in conflict. Considering the increase in the use of animals, especially dolphins, by states to achieve military objectives in armed conflicts, it is necessary to know the standards and support frameworks regarding them. Therefore, this article, based on a descriptive-analytical method, answers the question, what approach has international humanitarian law adopted in this regard? This article concludes that due to the lack of specific rules in international humanitarian law on the ban on the use of animals as military purposes, it must be referred to the general humanitarian rules especially the articles of the first additional protocol to the Geneva conventions of 1949 to explain the legal system of the subject. By considering animals as a part of the environment and placing them in the category of special and protected objects under Article 54 of the said protocol, A support system can be considered for them. Of course, due to the special situation of animals compared to the human, the implementation of the principles of humanitarian rights, such as separation, proportionality, precautions in attack is faced with complications and ambiguities.

Conflict is one of the oldest fundamental (Usul) debates. The concern of solving this hadith problem, which has a direct effect on the inference of religious rules, is reflected in many traditions. Throughout history, the fundamentalists have explained the issues of conflict in detail and presented several criteria and classifications. The current research, using a descriptive-analytical method based on library and documentary information and using fundamental (Usul) sources and rules, tries to take a new step in the review of this debate by presenting a new division of affirmative and proving solutions. The solutions to prove the rules are in the stage of argumentation and proof, and the solutions to affirm the rules do not take the reason into consideration. Affirmative solutions can be divided into two areas: legislation of the rule and exercising the rule. Applying the affirmative method of legislation, and neglecting or planning it is effective in the perfection or deficiency of the legislative area. The precise explanation of the index of perfection or deficiency of legislation can have a significant effect on providing affirmative method of legislation which is considered in this article. Applying or neglecting the affirmative method of compliance is effective in the quality and quantity of compliance of the rule, application of which is documented based on the quantitative and qualitative criteria of compliance. Examining these issues and generalizing them to governmental jurisprudence and generally additional jurisprudence mentioned in this article can increase the capacity of the principles of jurisprudence in dealing with today issues.

Right to action as a natural right recognized in Constitution an International Pacts. Except some rare cases, everybody is free to act with this right. The conflict is a pre se requisite of litigation but we see some cases by the subject of homologation a contract which has not yet a conflict and courts have not a similar jurisprudence in cases. Although courts can, qualification or requalification the title of litigation but the manner is civil cases is different and the courts can see the cases, which permitted by laws and regulations exceptionally. We think that a litigant has profit to litigate and so we are trying to critic the case law and courts can, qualification or requalification the title of litigation but the manner is civil cases is different and the courts can see the cases, which permitted by laws and regulations exceptionally. So as a result, every conflict by a legal consequence will be accepted as litigation.

When rights are recognized for people, but the simultaneous application of two rights causes damage to one or both rights, we face the problem of conflict of rights. There are three main approaches to solve such conflict: The first approach is to create meta-rules such as conflict resolution rules, which provide indicators to the public and finally to the judge to clearly understand the priority of one right over another. The three main forms of meta-rules are balancing, equilibrium and hierarchy. The second approach is to accept six criteria to resolve human rights conflicts, which have been used repeatedly by the European Court of Human Rights. From these six criteria, one or more criteria can be used depending on the situation governing the conflicting rights. The third approach is to apply the minimum restriction criterion. This means that any method that imposes the least amount of restrictions on two rights is the best method of conflict resolution. This article evaluates the possible solutions with a descriptive-analytical method by explaining the theories and relying on the jurisprudence of the European Court of Human Rights.

The conflict between principle and appearance in Islamic jurisprudence affects the fields of judgment, law, economy, and politics. For this reason, the aim of the current research is to examine the jurisprudential reasons for the conflict of principle and appearance in the field of economics.

The analysis method of this article is analytical and descriptive using library tools. 

Ethical considerations:

In writing this article, the principle of accurate and documented referencing has been considered.

Precedence of appearance over principle in the rules: Halit, employment, obfuscation, and correctness was found, which indicates attention to economic life and reliance on testimony, news, and non-invalidation of appearance. But the primacy of principle over appearance means that in Islamic jurisprudence, the sanctity of usury, the negation of harm, and the illegitimacy of a haram diet are accepted, and that means preventing the promotion of unhealthy economic practices.

The primacy of the principle over the appearance in the rules of the sanctity of usury and harm is due to the proof of their negative effects in individual and social life. However, the priority of appearance over the principle, with an emphasis on religious and rational evidence, is due to the observance of the interests of society, abandoning the principle of mistrust (principle of integrity) and promoting goodwill for economic interaction between people.

The "lex specialis derogat legi generali" in Iranian criminal law is facing three major challenges: First, lex specialis, especially its main symbol in Iranian criminal law, i.e. the "general law enacted after a special law", causes the invalidity of general principles of criminal law. Second, lex specialis in Iranian criminal law is not based on any law, but at the same time, it has more force in the judicial precedent. Thirdly, the history of lex specialis has been brought up with the principles of religious jurisprudence, especially Iranian private law, but without being compatible with the nature of criminal law, it has entered this field as well. Using library resources, regulations and judicial precedent, this article deals with the ratio of the lex specialis and nature of criminal law by descriptive analytical approach, and has come to the conclusion that in case of conflict between the general and special criminal law (either "general law enacted after a special law" or "special law enacted after a general law"), the general and special verbal rules in the principles of religious jurisprudence do not apply, and the general principles of criminal law apply except in cases where lex specialis has a logical justification; It means that it is not enough to be specific, but the special law must have a rational and logical justification in order to be able to stand against the power of the general principles of criminal law and throw them out of the generality.

The essence and the appearance are among legal jurisprudential phenomena, which are the criteria in the proceedings, both at the stage of determining each of the claimant and the defendant, and at the stage of drafting and issuing a verdict. These two phenomena are sometimes in harmony with each other and sometimes they are in conflict with each other. When there is a conflict between the principle and the appearance, which one takes precedence over the other, and what is the general rule to resolve the said conflict, is itself the point of contention and violation between the scholars of Shia jurisprudence and law; Therefore, the present article, in order to explain and achieve this important, after extrapolating the mentioned cases of conflict between the principle and the appearance in the jurisprudence writings of Shia jurists and expressing the forms of the conflict and its possible assumptions in the literature of Shia jurisprudence and law, examining some examples. Some of the conflict between the principle and the appearance will be revealed, so as a result, the stability of the hypothesis of the regularity of the conflict between the principle and the appearance will be shown.

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.

According to the definitive proofs of Sharīʿa, one of the absolute rights of men is the right to enjoyment. Sometimes this right happens to conflict with the wife’s physical privacy and her mental-psychological health. A fair way out of this conflict will lead to greater empathy between men and women and the consolidation of the family foundation and, finally, the cohesion of the society. Many works have dealt with the conflict between the rights of couples. In this article, an attempt has been made using  descriptive-analytical method, to explain how a man's right to enjoyment conflicts with a woman's right to physical and mental health. The article offers ways to get out of this conflict in the form of solutions such as "good behavior", "gaining emotional and physical satisfaction of a woman", "reciprocity” and “interaction", "reconciliation" and finally "appeal to legal courts". It seems that while there is a consensus regarding the right of a man to seek pleasure, this right is not absolute and a man cannot use it as a tool for violence, but the interaction between men and women, whether in the sexual field or in other areas, should be based on amicability and good behavior as emphasized in the divine word.

Governments in the international arena are bound to face their adversaries, and throughout history, war with the adversary has been one of their most important concerns. The Islamic State has no escape from this confrontation, and to limit this confrontation, it needs measures that are determined by political jurisprudence. The current research has taken the question of the legitimacy or illegitimacy of the cooperation of the Muslim state with the hostile non-Muslim state into consideration.  It has tried to find the answer to each of the two perspectives about the principality of war or peace using the analytical-ijtihad method. The findings of this research show that the Qur'anic evidence of the principality of war cannot prevent the cooperation of the Islamic state with the hostile state. As per this point of view, cooperation with non-Muslim adversaries is an "emergency situation" based on which the ruler of the Islamic State can allow the legitimacy of interaction with this group of adversaries in order to secure the interests and benefits of the Islamic State in such a situation. However, when it comes to principality of peace, war as an emergency that is conducted to curb the evil of the enemy or the obstacles to the awareness and guidance of non-Muslim nations. Therefore, in the event that the obstacle is removed, cooperation is legitimate.

Governments in the international arena are bound to face their adversaries, and throughout history, war with the adversary has been one of their most important concerns. The Islamic State has no escape from this confrontation, and to limit this confrontation, it needs measures that are determined by political jurisprudence. The current research has taken the question of the legitimacy or illegitimacy of the cooperation of the Muslim state with the hostile non-Muslim state into consideration.  It has tried to find the answer to each of the two perspectives about the principality of war or peace using the analytical-ijtihad method. The findings of this research show that the Qur'anic evidence of the principality of war cannot prevent the cooperation of the Islamic state with the hostile state. As per this point of view, cooperation with non-Muslim adversaries is an "emergency situation" based on which the ruler of the Islamic State can allow the legitimacy of interaction with this group of adversaries in order to secure the interests and benefits of the Islamic State in such a situation. However, when it comes to principality of peace, war as an emergency that is conducted to curb the evil of the enemy or the obstacles to the awareness and guidance of non-Muslim nations. Therefore, in the event that the obstacle is removed, cooperation is legitimate.

Testimony is definitive information about a mandatory right for the benefit of a third party, which occurs from a third party. According to some legal articles (161 and 162 Islamic Penal Code), the proof is subject to Shari'a and legal conditions. On the other hand, according to Article 241 B.C., the value and effect of testimony are assigned to the court's opinion. In a vague way, it may mean that when the testimony conflicts with other evidence, it is up to the court to determine its value and effect. In contrast to this legal and Shariah presumption juris tantum, the judicial emirate is the situation that leads to the knowledge of the judge and is obtained from three sources: Judges' suspicions, customs and social habits, evidence and circumstances... and at the discretion of the judge and if this evidence creates confidence and inner belief for the judge, it is considered as judicial evidence and can be considered as a document of the court's decision. In this research, with the analytical and descriptive method, using library sources, the problem has been addressed that in the position of conflict between testimony with Shari'a and legal conditions and the knowledge of the judge due to the judicial emirate, what is the solution and which one is the priority? The answer, while examining the legal status and evidentiary value of each one, as well as analyzing the relevant legal materials, with an extensive examination of the nature of the judge's knowledge and the evidence of its validity and its evidentiary value in evidence, it has been argued on the precedence of the judicial decree resulting from the judge's knowledge over the certificate.

Since the beginning of the formation of the principles of jurisprudence, the conflict of evidence has been discussed and paid attention to due to its great application and efficiency in the process of deriving rulings and interpreting Islamic regulations, responding to incidents and solving new problems. Among other things, in the current social situation, economic contracts affected by severe economic fluctuations caused by various causes and factors have caused difficulties for the contracting parties in the implementation of the contract and caused one party severe hardship and embarrassment, and on the other hand, non-implementation of the contract also caused The other side is harmed and in this case, a harmless and embarrassing conflict occurs. Therefore, the present article with a descriptive-analytical method, while explaining the basics of these two rules, has reached these results that what is beyond human capacity and in which there is narrowness, hardship, difficulty, and difficulty is the ruling, both obligatory and situational. It is ruled out. On the other hand, jurists and lawyers should consider difficult conditions in contracts and include them in the text of the contract, pay special attention to the conditions of force majeure, and predict what is likely to happen and may affect contractual relations. . Also, until the adoption of a law on the acceptance of the "change of circumstances" theory, the honorable community of judges can issue a verdict based on the following evidence using authentic Islamic sources or authentic fatwas.

share holders In order to complete the provisions of the articles of association or managing the details of their relations for protecting the rights of minority shareholders, control the companey and filling the legal gap in the companies act with respect to the rights attaching to their shares or personal rights as a share holder need to make a shareholder agreement. Due to the differences between the articles of association and the shareholder agreement, conflict between them is inevitable. If the shareholders' agreements are concluded by consensus or before the drafting of the articles of association, they are in accordance with the articles of association and the possibility of conflict is ruled out, and otherwise, the possible conflict between them can be considered.In order to examine the types of conflicts between these documents, the laws of different countries and the solutions provided by the legislator have been examined. In countries where there is no legal provision in this regard, the principle of freedom of contract and also the supremacy of the provisions of the company's articles of association prevail. In the next step, the relationship between the shareholding agreement and the mandatory laws related to the rights of companies in the judicial procedure and the laws of different legal systems has been examined The common feature in mandatory rules is to protect the rights of third parties and public order In Iranian law shareholder agreement is not regulated, so the mandatory rules regarding the rights of third parties and the company's statutes based on the freedom of contract should be obeyed Finallyin for resolving the ambiguities and legal gaps in this area, it is necessary to pay attention to the proposed articles about the nature, provisions and limits of the shareholding agreement in the amendment bill of the commercial law.

Doubts about the "Taklifee" ruling and not finding the "Amareh" is the way to adhere to the practical principle in order to remove the surprise in the position of action. Subjects of practical principles may be accompanied by necessary, accompanying or required, whether Sharee or non-Shariee and whether direct or indirect. The scope and validity of each of these are examined in the principles of jurisprudence under the title of "Mosbet" principle. Regarding the validity of the "Mosbet" principle, there is a difference of opinion among the scholars. The scholars of the principles that do not consider the "Mosbet"  principle to be a proof have insisted on it for reasons, the most important of which is the existence of conflict; This means that the "Mosbet"  principle can prove non-Sharee works (rational or normal works) for  what it  indicates, which in this case, is in conflict with the principle of the absence of said works. Some scholars do not consider the "Mosbet"  principle to be valid and authentic due to the existence of such an obstacle. On the other hand, some like Sheikh Ansari believe in the "Hokumat". From his point of view, basically, there is no conflict in the issue that can be used to invalidate the " Mosbet" principle. In this article, while examining and criticizing the existing views with an analytical method, the conclusion has been reached that the issue under discussion cannot be definitively considered as an example of conflict or "Hokumat", but in a new classification," Tafsi"  must be belived; In this way, some examples of it are examples of conflict according to some bases, and some examples are examples of "Hokumat" based on other bases. Therefore, it is not possible to deny the validity of the "Mosbet" principle by insisting on the problem of conflict.

The right of goodwill and the right of business and occupation are both of the accrued rights, and while they have similarities, they are different from each other. Goodwill is an amount that the owner takes from the tenant at the beginning of the lease, apart from the leased property, in order to rent and transfer the place to him, but the right to earn or trade or profession is a right that is created as a result of economic prosperity in the place and due to the activity of the tenant. comes. In some cases of endowment of commercial properties, there is a conflict between the two mentioned rights and endowment rights, which has many consequences in practice. If the commercial property is leased with the right of goodwill or the right of occupation is assigned to it, with the passage of time, there will be practically no benefits to spend for the purpose of endowment. On the other hand, the laws have recognized both the right of goodwill and the right of business and profession. Based on this, in case of stopping the lease or selling the endowment property or changing its use or any action that causes the loss of the provisions of the original contract, if the tenant has not violated the provisions of the law and the original contract, there is no right to ignore these acquired rights. However, if the tenant's violation is confirmed, or if the tenant has closed the leased property during the lease period, he will not have the right to trade, because basically, the tenant has no right to qualify for the privileges of commercial premises. Regarding the endowment rights, the laws and consensus of jurists show that there are two solutions in the above conditions: 1- Changing the use and revitalizing the endowment, 2- Ending the endowment.

The right to political participation is a fundamental human right that derives from self-determination. This right is set out in important instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and etc. One of the obvious aspects of the right to political participation is the right to vote. The views of these instruments on voting are a rights-based view towards citizens and a commitment-based view towards governments. However, in some countries there is an electoral system in which voting and participation in elections is a civic duty and not doing so is liable for punishment. In this study, using a descriptive-analytical method, while reviewing the views of institutions such as the Human Rights Committee and the European Commission on Human Rights, we are seeking to answer this question: is compulsory voting in conflict with human rights instruments? The findings of the study indicate that what is mandatory in a compulsory voting system is merely the presence of the voter at the ballot box and casting a vote. As such, the observance of the principle of secret voting prevents the violation of human rights such as freedom of thought, freedom of opinion, freedom of conscience and freedom of speech. Therefore, compulsory voting, provided that voting is secret, does not conflict with human rights.