جستجوی مقالات مرتبط با کلیدواژه « arsh » در نشریات گروه « فقه و حقوق »

Article 639 Q.A. According to the well-known Imami jurists, in case of amputation of the hand from the forearm or arm (and with the same criteria for amputation of the leg from the leg or thigh), in addition to half of the full payment, in the excess amount, Arsh is also fixed. has known by examining jurisprudential writings, there are two other views on the assumption of the problem. In a fundamental research and by adopting the descriptive-analytical method, the present essay investigated the existing views and found the popular view to have weaknesses and flaws; On the other hand, there is another point of view on the issue that has been able to attract a significant number of contemporaries. This point of view believes that in the assumption of the problem, only half of the full dowry has been put on the diya and no more Arsh will be given to the victim. According to the authors of this article, this point of view can be the basis of the legislator's action due to its well-documented evidence. The results of the present research, in line with the above-mentioned theory, indicate that the reference to the use of the word iodine as well as the use and inclusion of the word “rejl” can strengthen the above-mentioned point of view; Therefore, it can be said that hand is a noun for all members and foot is also a noun for all members and the common understanding is that each of these members is called hand or foot; Therefore, it is sufficient to prove the payment and the determination of Arsh does not seem justified.

In many countries today, specific frameworks have been established to recognize physical injuries and provide compensation for bodily harm. These frameworks, in line with criminal policy objectives, aim to deter future harm and ensure compensation. This paper employs an analytical and descriptive approach to examine this issue within the criminal justice systems of Iran and England, exploring the conceptual differences in the recognition of bodily injury and the provision of compensation in both legal systems. The present research reveals that in the Iranian legal system, the compensation for bodily injuries is based on the concepts of "diyyah", "arsh", and "government", while the English legal system evaluates and calculates compensation based on tariff systems, consideration of the function of body parts, the lost enjoyment of life, and the valuation of human life and the quality of life years. Both legal systems strive to realistically calculate and compensate for bodily injuries.

Eyelid crime is classified as "cutting" and "splitting" under the Islamic Penal Code. Despite the significant differences between the two types, the legislature has allowed equal Diya for each under Articles 590 and 591. Although some studies have been conducted to critique the provisions of Article 590 and researchers have focused their efforts on the issue of eyelid cutting, it appears that investigating the issue of eyelid splitting and the amount of its Diya reflected in Article 591 is essential according to some reflections. In this research, both the structure and basis of Article 591 will be analyzed while referring to valid jurisprudential sources, using a descriptive-analytical approach. The present work demonstrates that the article is confusing, owning to its legislative structure and validity. Both the interpretations of "splitting" and "Diya" are ambiguous. Also, the major foundation of the interpretation of the article is a significant narration that cannot be cited due to different reasons. In addition, the fatwas of the grand marjas affirm that the Diya for eyelid splitting is one of the cases referred to Arsh, rather than being fundamentally constant.

The Art. 709 of IPC defines damigha as ''rapture of brain sac''. According to the law, the blood money for damigha, whether by injury or damage, is equivalent to ''a blood money for ma'muma plus to arsh of brain sac rapture''. Ma'muma is realized by the entrance of the crime tool into the skull that reaches just close to the brain sac but before it; here, the blood money is one-third of a full blood money. Now, if the brain sac is torn without any injury, which means the realization of damigha, then, there seems to be a legal problem in the legislation of art. 709 on the necessity of proving a ma'muma blood money as well as an arsh of brain sac rapture; because the principle of the proportionality of crime and punishment behooves the arsh of a brain sac rapture, not adding the ma'muma to it unless it is said that the addition of ma'muma to brain sac arsh is a tradition which makes it necessary to be followed under the title of determined blood money. Using a descriptive-analytic method of research, this study aims at proving that the legislation of damigha neither follows the principle of the proportionality of crime and punishment nor does it exist in the traditions as a crime with determined blood money. The elimination of the term damigha from law and leaving it to the laws related to undermined blood money crimes is the result of the present research.

Fracture of the nasal bone is one of the most common cases of fracture stated in jurisprudence books. It seems that the nose is absolutely considered as a single bone in jurisprudence books and the cost of its fracture is determined according to this concept. This is despite the fact that the child's nasal bone is not completely connected and is considered as a group of multiple bones from the medical and customary point of view.The present article employs a critical-analytical method to analyze whether it is considered one fracture or two fractures if a fracture similar to an adult's fracture happens to a child's nose and leads to the breaking of two bones close to each other. A lack of related tradition in the issue of nasal bone fracture has complicated the investigation of this issueThe research shows that among the evidences presented for the equality of nasal bone fractures in children and adults, there is enough evidence to prove equality. The most important reason that can be provided for the equality of the Dīyih is referring to the application of similar traditions in other bones of the child, which have a similar situation. The application of the words of the jurists in expressing the ruling on the issue of Dīyih for fracture also supports such a conclusion.

Psychiatric injury is any harm to the health of individuals that causes their mental illness. The extent of such trauma can range from simple grief to mental disorders. Given that a large number of people are at risk of Psychiatric injury, compensating Psychiatric harm without any criteria will lead to numerous claims and will cause problems for the country's judiciary. Are there any rules in the Iranian and English legal systems that limit compensation of Psychiatric damages? Is that rule effective and can it achieve justice? The British courts have held only "recognized mental illnesses" in psychiatry liable and have not found the rest of the mental harms to be compensable. In Iranian law, despite the fact that some Iranian courts have ruled in favor of compensating for mere emotional distress, but from Article 1 of the Civil Liability code and Article 676 of the Islamic Penal Code the necessity of "mental illness" can be inferred. This article will show that the application of this rule will reduce the number of fraudulent lawsuits in the courts and prevent the huge costs of compensating for mental disorders that are temporary and does not disrupt normal life.

The temporary elimination of the benefit of the organ due to incurred crime have been put under the topic of Arsh in Islamic Penal Code while no proper jurisprudential study has been undertaken in this case; what is more, the presence of some beliefs such as no liability for non-used benefits paves the way for some prevailing suggestions that there are no liabilities under the topic of Arsh and the blood money for the temporary decline of benefits in religion. This gets more intense in cases which the organ has no evident injury or harm and fracture but the benefits are eliminated in temporary terms. By a full grasp of the necessity of this discussion, this study investigates the issue by referring to library documents by an analytic-critical method. Our study shows that the presence of the right to use body organ is a good reason for the presence of liability of Arsh in cases of temporary decline of organ benefits on the criminal because the subject of liability is the loss of property and right of the others, and on our assumption, the right of using organ benefit has been eliminated; however, the lack of financiality before the act or the before the renting contract is a hinder to the use of liability principle in this assumption; also, due to the impossibility of jurisprudential comparison between the Arsh for permanent decline of benefit with temporary decline of benefits because of the lack of unity of procedure as well as the emergence of the blood money and Arsh for the blood money of harms incurred to organ, and finally, considering the religiosity of blood money and Arsh and the principle of non-liability, it is overwhelmingly challenging to prove the Arsh.

One of the most important common issues between criminal jurisprudence and Iranian penal law is the issue of blood money. Determining the amount of blood money and Arsh through forensic expertise in the field of the type and amount of crimes and their effects is one of the basic issues related to blood money law.Therefore, relying on advances in medical sciences and technology as a bridge, forensic medicine connects experts and judges in the field of criminology and truth discovery in order to achieve the rights and administrate the justice, and thus be effective in the work of the judiciary and How-ness of judgment and sentencing. However, in this way, we dealt with the challenging issues between law and forensic medicine based on jurisprudential documents and with emphasis on the expertise of forensic physicians, which is influenced by the advances of medical sciences and technology and cultural and social developments in society.The present study, using a descriptive-analytical method to investigate and analyze these challenging cases in three fields of fractures and bone injuries, beauty, injuries and limb injuries, at first, examined the relationship among forensic medicine, law and jurisprudence and then, introduced and analyzed some examples of challenges of determining of the amount of blood money and Arsh. Finally, reviewing the laws of blood money as well as updating the jurisprudential rules based on the requirements of time in order to solve the existing challenges revealed themselves of great necessity

Loss of beauty is an important kind of personal injuries which Today has become more important, due to its role and The attention of society to it. So At the moment it is an independent loss which can be demanded and assessed.Although it is a kind of physical damages, it has financial and non-financial effects and both of these kinds od damages are Recoverable in other law systems. In Iranian law in spite of existenence of diyah, it is accepted that we should assess and compensate these damages and there are some solutions to assess.

One of the relatively common crimes that take place against the physical integrity of individuals are injuries that pierce the victim's body and cause suffering and fatigue and in some cases lead to the disability of that organ. The diya for this type of injury, which is called penetrating, is one-tenth of the human diya. Different angles of this crime have not been agreed upon by scholars and need to be studied and examined. Among the controversial cases, we can mention the exact definition of the piercing and the amount of the diya for piercing of the organs and the women's diya in these types of injuries. Based on the descriptive-analytical method, after proposing different jurisprudential viewpoints, the present study evaluates the aforementioned arguments and then shows with numerous arguments that penetrating injury, both in terms and in women's diya, is different from the opinion of the famous jurists and accordingly the legislator of the country. Therefore, a penetrating injury is an injury that splits the end parts of the body and does not come out from the other side, and the amount of its diya does not differ in men and women.

In many cases, there is no quantitative diya (compensation paid to the heirs of a killed person or to somebody who is injured) for injuries to the body organs, and compensation must be determined by the courts. Today, the methods proposed by jurists to determine the arsh (compensation specified for offences relating to various kinds of hurt or injuries) are associated with failure. Methods such as enslavement and obtaining the difference between the price of a defective slave and a non-defective slave, to determine the arsh, which in addition to the impossibility of execution has other drawbacks. The Penal Code also includes cases in determining the arsh that cannot be proven according to religious evidence. It remains to be seen whether there is an applicable method for determining Arsh among jurisprudential sources. This current paper intends to present the jurisprudential criterion for determining the arsh through examining the available sources. The study of the mentioned sources indicates that in the existing narratives, the determination of arsh from the amount of diya has been left to the wise. Since the method of calculation is not considered by the Shari'a, in order to realize the rights of the victim, the ruler, with the help of two trusted experts, must calculate the crime from the amount of the organ's diya in the most accurate way that the rights of the victim can be exercised. Of course, with the advancement of science, more precise ways to determine the arsh may be found, which is closer to the principle of justice and fairness, in which case such a method should be the criterion for determining the arsh. The calculation is based on the quantitative diya of the organ and the level of injury in terms of length, width and depth of injury, or the amount of crime in terms of the organ disability, emphasizing that the other sides of crime such as the amount of recovery time and its effect on health are not considered in the amount of the arsh. As a result, the criterion for determining the arsh is the characteristics of the crime and the injury and the quantitative diya of the organ.

In option of defect, most of the Imamiyah jurists believe that after the appearance of defect, the customer has the right to abolish and set arsh (compensation) at the same time. The Article 422 of Civil Code based on this viewpoint states that after the deal, if it becomes clear that the goods is defective, then the customer has the authority to take arsh or abolish the deal due to the defective goods. However, the study that has been carried out through descriptive-analytical shows that the arguments of this theory can be accepted. Therefore, using the general hadiths of "al-Nas Mosalatoun ala Amwalahom", "la Yahelo Mal Amro Moslem", "Adeloh la Zarar" as well as Jamil ibn Darraj's narrative and other arguments means lack of choice and the only way to receive arsh is related to the impossibility of Rad (abolition).

According to the Articles 590 and 591 of the Islamic Penal Code, the diah for cutting the eyelids as a whole is a full diah, and in splitting and cutting in less than the whole, one third of the diah is fixed for two upper eyelids and half a full diah for two lower eyelids. Meanwhile, there is disagreement between the Imamiyyah jurisprudents; the majority of the jurisprudents believe in proving the full diah as a whole, but in cutting less than the total, some believe in proving a quarter of the diah in each of the eyelids. Some have issued fatwa confirming two-third of the diah in the two upper eyelids and one-third of the diah in the two lower eyelids. The source of the difference of opinion is the difference between inference from the narrations exposed to the verdict and the conclusion of the consensus. The findings of this study which have been made through a descriptive-analytical method, indicate that in total disconnection, the full diah is fixed and the problem raised against the consensus is rejected. Given that here is an evidence, the content of the evidence is the same as the conclusion of the consensus and there is no strong reason for the possible evidence. In addition, by underestimating the documents of other sayings in the crime diah to less than a total of four quadruplets, the verdict of one-fourth of the diah on each of the stairs is reasonable.

The simple customer-supplier relationships in the past has changed today due to the diversity, complexity and use of new technologies, and different people as intermediaries, business brokers or distributors have been placed between the producer and the consumer. For that reason, today, unlike in the past, customers or consumers typically do not know the producers, and with the intervention of governments in these relations, the issue of "consumer rights" has been created. In this regard, the question now is that if the consumer is harmed as a result of a defect in a product, on what criterion, the civil liability of the suppliers of the goods is based? Another question is that whether the supplier is only responsible to compensate the buyer of the goods for the defect or loss, or he is also responsible to compensate all other consumers or customers who have suffered damages or losses due to product defect. In this article, while examining the various principles proposed on the subject, the Iranian legislator's desire to accept sole responsibility in accordance with Articles 2 and 18 of the Consumer Protection Law has been inferred. The buyer of the defective product, in addition to guaranteeing the implementation of the khiyar-e ayb[1], or Arsh[2] can also invoke the coercive liability of the supplier to compensate his damages, but due to the defect of the law, other people who have suffered damages have no way to compensate the damages except through general rules of civil liability and reference to the provisions of the civil liability law and the provisions related to losses and causing the losses.

If one of the exchanged things in a contract is defective, the injured party has the option of defect and can cancel the contract or claim arsh (the compensation for the difference between a defective and sound thing) instead. While when the object being leased is defective, the lessee holds no right to claim arsh according to the Iranian Civil Law. Whereas apparently the Civil Law, specifically article 456, grants the right for claiming arsh to the lessor when the payment is tangible property and is defective. This kind of approach to Civil Law is inferred from non-famous jurists’ view which, considering jurisprudential sources and the nature of arsh, seems weak and is not a suitable source for legislation. Arsh, in fact, is peculiar to sale contract and generalizing it to other contracts, including lease, is not allowed. Therefore, it is necessary to amend the article 478 of Civil Law regarding lease contract, and to revise the article 456 of Civil Law.

One of the most important issues that has always been the subject of civil liability is the issue of compensation. When the pillars of responsibility are created, the responsibility is realized and it is obligatory for the physician to compensate for the damage caused by his mistake. The purpose of this study is to review the views on the claim for material damages, to analyze them, so that they can take an effective step towards observing patient's rights and claiming damages caused by medical malpractice. The research method of this research is a library and theoretical type (descriptive-analytical). By studying a large number of jurisprudential books and some medical books in line with the discussion, it was found that the implementation of justice and legal logic necessitates that the determination of the amount of the Diyah be based on the assumption of the minimum damage caused by murder, defeat A human member comes in and does not need to prove, and more than that, the claimant must prove. The results showed that if the physician makes a mistake in his duties, it is established that the result is a compensation, which sometimes appears in the form of a diy payment and sometimes in the form of arsh payment. Damage outside the Diyah debate will also be required, such as reimbursement for treatment costs, in accordance with the principles of civil liability, non-compliance, and the law applicable to compensation.

The sentence for the compensation on damaging and dissipation of internal organs in the Criminal Code of 1982 (laws for wergild/atonement) and 1991 (Islamic Penal Code) was not observed. However, the legal precedent set in this case followed the same approach as the atonement in non-fatal cases. The adoption of art.563 of the Islamic Penal Code in 2013, extended the principle of odd and even in cases of internal organs loss, and suddenly dispersed the aforementioned procedures. In this article, alongside the explanation and analyzing the fundamentals of jurisprudence and the legal precedent before and after the adoption of the mentioned article, we have come to the conclusion that from the view of the jurisprudence, based on clear evidence variety, the term implying traditions on the common internal and external organs is problematic. Hence, the Hadiths on the subject deal with external organs. Additionally, the current subject of the said article based on "fixed atonement" for the loss of internal organs is contrary to the theory of "reformed or nominal justice” of civil liability and is also opposed to the principle of proportionality in the criminal law

The topic of this article is study on the possibility of applying of the rule of price reduction, as one of the buyer’s rights, in Iran’s legal system. Aforementioned rule, was predicted in article 50 of the convention on the international sale of goods (1980 Vienna), as an international model law and means that the buyer despite of delivering nonconforming good with the contract by the seller, accepted it and intended to restore the consideration of nonconforming sale. The results of this study indicate that despite the lack of an explicit forecast of this rule in juridical texts and Iranian’s laws, parallel institutions with this rule can be found in them that indicate willingness of founder and legislator to accept this rule. The authority to obtain compensation (Arsh) in the option of defect and to split the price in the option of discrimination, are from the domestic similar cases approved in line with the price reduction rule and has the same goal and function and in this respect can be taken into consideration.

Exchange liability is the liability and undertaking of both parties in fulfillment of the contract. As all parts of goods are at exchange liability of the seller, so the safety description of goods should be guaranteed by him, too. But the safety description is a secondary obligation that plays no role in conclusion of the contract and the contract will not be cancelled by it; instead, it changes the seller guarantee to pay for arsh (indemnity). As the buyer and seller undertake all subsidiary commitments, changing of an obligation will not be confined in the safety description of goods, but it can change the other obligations too. It can also explain the contractual obligation to repair the defective goods and expand the arsh into the other selling.

About the nature, meaning and basis of civil Arsh, both in jurisprudence and Iranian law, the debate has broken out, so that some authors considered Arsh as a non-contractual responsibility that difference between value of healthy goods and defective one, only in market price, should be the criteria to calculate amount of Arsh. Some others criticized these comments and believe in this idea that Arsh is compensations and damages that the buyer, due to defect of goods, sustains. In contrast, one group has considered Arsh as reciprocal responsibility that must be paid of the same price. About Arsh it can be said that neither it is non-fungible liability nor reciprocal responsibility and nor reparation and compensation, but it is a way to implement and perform commitments agreed in the contract. When the parties proceed to contract based on the balance of considerations value, if this obligation, for some reasons such as being the object of contract defective, is violated, so this violated commitment should be implemented again. Arsh makes agreed obligation be enforced, in relation to balancing between the value of goods and its consideration. So mutual agreement or compromise is the basis of Arsh, As if contract provisions, and parties commitment is based on the principle of equal value of considerations and seller's responsibility to pay Arsh, is contractual