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

The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some examples in the codified criminal law and jurisprudence texts. This article attempts to re-examine the issue by presenting new analysis while critically studying the existing views. According to the famous Imami view, this agreement is not permissible and the right of qisas remains with the termination of the agreed organ. Therefore, it is necessary to pay the dues of the similar organs that have been cut off.The reasons of the famous view are as follows: the non-realization of the originality, the irreconcilability of the blood issue, the principle of non-substitution, the non-inclusion of the rule of body integrity, and the inclusion of the obligation of qisas in the original place. Indeed, due to the invalidity of the said agreement, according to the famous view, the left hand exchange (i.e. the fall of revenge from the right hand) has not been realized and on the other hand, the same exchange (left hand) has also been cut off.According to the second view, agreeing to amputate a similar limb instead of the main limb causes the right of qisas to fall and turn it into ransom. In such cases, on the one hand, the victim is entitled to receive diya for his right hand, and on the other, due to the amputation of  criminal's left hand, he is required to pay diya. In fact, agreeing on left-handed qisas instead of right-handed qisas is like forgiving the victim of right-handed qisas in exchange for left-handed qisas. Of course, it should be maintained that victim with left-handed who agreed on qisas has abandoned right-handed qisas, not that he has turned it into diya since if his goal was to receive the diya for his right hand, he could demand it from the criminal, and there was no need for the agreed qisas of the left hand.According to the third point of view, in practice, there is an exchange between the place of qisas and its similar organ, and the similar organ replaces the retaliated organ, which will result in the fall of the victim's right of qisas. The evidence of the third view are the implied amnesty of the agreement, the possibility of a change in the organ's qisas and reference to the rules of harmlessness and exclusion.The present article, with a descriptive and analytical method, while critically examining the jurisprudential foundations of the mentioned viewpoints and giving a reasoned preference to the promise of deserving punishment as a result of the agreed qisas of the similar organ, believes that such agreements and compromises can be based on. He considered it to be correct and legitimate and considered its provisions to be enforceable. In this regard, while studying the sayings and proofs of the jurists, by presenting proofs beyond the documents that have been presented for the third point of view, this opinion has been strengthened, the proofs of the illegitimacy of the agreement on the same organ's reparations are also disputed.The pieces evidence of the selected point of view are as follows:Analyzing the issue based on the aspect of the right of qisasThe basic rule in law is that the authority is in the hands of the right holder, and transferability, revocation, compromise, pardon, and forgiveness are among its accessories. So, first of all, since revenge is a special right of the victim, then it must be possible to judge the legitimacy of such an agreement. Secondly, considering the fact that the tortfeasor, even for free, can waive his right, then as a priority, he will be able to waive his right of qisas by agreeing to the qisas of the similar organ. Thirdly, due to the personal nature of the right to qisas in crimes against the soul, it is not possible to execute qisas without demanding compensation from the victim. Therefore, ruling to invalidate the agreement and re-implementation of qisas is contrary to this Muslim rule.Analyzing the problem in terms of substantive similarityBased on numerous pieces of evidence, there is a balance between the interests and functions of similar organs; which can be cited in order to prove the legitimacy of the aforementioned agreement.Applying the verse of qisas; From the honorable verse "Write down against them, that the soul is in the soul and the eye is in the eye and..." (Ma'idah/45), which explains the law of execution of qisas due to the necessity of similarity, it can be used that the paired body parts that are opposite each other and the ruling of qisas. They are exported, regardless of the right and left, they are considered similar to each other.Habib Sajestani's narration from Imam Baqir (a.s.): "Regarding the rights of Muslims, where a person has a hand, the hand should be placed against the hand..."Homogenization of similar organs in the verse; The chapters on limb amputation are used in the works of jurists, whose view of similar limbs is almost likeness and ruling on punishment of left hand in case of lack of right hand, based on this basis.From the point of view of custom, the organs of the pair are considered similar, and characteristics such as right and left are not considered by custom.Problem analysis based on the philosophy of qisas; The main purpose of the law is to legislate qisas punishment, deterrence, providing security and life of the society and healing the wounded feelings of the victim and the society. It seems that both of the aforementioned goals can be achieved with the agreement of similar organs.Arrange rational purpose for agreement.First: It is possible that rational and valuable effects and benefits will be obtained from the said agreement. Secondly: It is possible that the motive of benevolence is also desired in the qisas of the similar organ.Requirement of No Harm and The Dar'e RulesThe verdict of non- qisas ultimately leads to the qisas of two life organs for one victim. Therefore, referring to the harmless rule, the fall of the right of qisas against the victim is explained.Also, the rule of Dar'e, also includes qisas, and with the qisas of a similar organ, the legitimacy of re-implementation of qisas is questioned, the fall of the right of qisas seems more appropriate.Legal evidencesAlthough the legislature of Iran has not explicitly commented on this matter, according to the articles 347, 361, 363 and 365 of the Islamic Penal Code, conciliation and agreeability of the right of qisas, in each of the stages of prosecution, proceedings and execution, has clearly accepted and considered the right of qisas to fall and the hypothesis of this article is confirmed.

According to the opinions of the jurists, and based on the principles of the Shiites, the first principle in premeditated killing is retribution. But Islamic law gave this right to the guardians of the murdered, so that they could fully forgive their right or forgive and make their pardon depend on money. However, sometimes there are cases in which it is not possible to carry out "qisas al-nafs" for certain reasons, and the guardians refuse to give up financial matters or pardon.In this case, is it for the guardians of the murdered to ask for a compromise by cutting off the limb instead of self-retaliation? This reconciliation, on the one hand, will heal the pain of the victim's loss of guardians, and on the other hand, it will save the soul of the perpetrator. This new issue clashed with supporters and opponents, and accordingly two opinions were raised, and after explaining and criticizing them, the final opinion was based on the permissibility of replacing self-punishment for amputation with the content analysis method. On the evidence, including the legality of reconciliation, the preponderance of pardon over retaliation, the evidence of the necessity of self-preservation, etc., is a solution to overcome the problems arising from the promise of impermissibility.

Achieving a fair trial and ensuring justice in the trial is initially subject to identifying the principles governing the trial and adapting it to the principles and rules of the national and transnational legal system and adapting it to the circumstances prevailing in each judicial authority. As a quasi-judicial authority with a conciliatory approach and compromise, on the one hand, the deliberations of the council in accordance with the laws and regulations are not subject to the procedures and principles of the trial, and on the other hand, the deliberations of the council in terms of principles and rules are subject to the rules of civil and criminal procedure. Due to the absence of the judge in the council meeting, this issue causes inconsistencies and conflicts in the issuance of the verdict. Sub-vote is the result of the review process and in practice the council judge does not play a key role in it. Therefore, in order to comply with the rules and principles of procedure, it is necessary to separate the issues raised in the council in terms of compromise and compensation from the beginning. Compromise issues without observing the court proceedings by the members of the council and dispute issues with the presence of the council judge in the hearing in accordance with the principles of the court and the governing procedures to be considered in order to achieve a fair trial in practice in this judicial authority.Keywords: Judicial Authority, Dispute Resolution Council, Fair Trial

The term of Taqiyyah is so popular in Shia’s religious literature, and is among the major principles to further learn about the infallibles’ Sirah (life and character) which since the advent of Islam and enmities towards it has been the center of attention among divine leaders and whenever hardship and problems resulting from such confrontations at social and individual levels emerge, Taqiyyah would be the best rational solution to advance objectives. In today’s world, with respect to numerous confrontations between Islamic resistance movements and the global arrogance and also due the ensuing problems as a result of this resistance, the element of Taqiyyah is a major strategy. This article aims to – via revealing the true nature of Taqiyyah and judging documents related to views opposing resistance, expound on the accordance of the theory of resistance with major Islamic principles and their non-contradiction with Taqiyyah and explain some current strategies with Taqiayyah in face of enemies.

In the last two decades, the influx of cases into the judicatories and courts has become one of the serious problems of the judiciary, so that this problem has caused lengthy proceedings, reduced the accuracy of judges in issuing verdicts, burn out and fatigue of judges because of the high volume of cases. And in general, it has reduced the efficiency of the judiciary. This has led the judiciary to seek a solution to this problem from the very beginning, and one of these measures to reduce the number of cases to the courts was to establish a dispute resolution council. Although the formation of this institution was necessary and useful, the focus on reducing the number of cases and absolute statistics caused the councils to move away from their philosophy of existence, which was to correct the essence of the conflict and the chapter of hostility through compromise. Therefore, in this study, we have tried to deal with the effect of statistics on the performance of dispute resolution councils with an analytical method. Also, in this article, the information obtained from the statistics of the dispute resolution councils of Markazi province has been used as a statistical sample. Studies have shown that the increasing number of cases in the judiciary contains a worrying reality and should be addressed through fundamental solutions such as strengthening the principles of prevention

The family is the infrastructure of human society and the main focal point of the individual's development and uprising. According to the Tenth Principle of the Constitution, all the relevant laws and regulations and plannings ought to be in the direction of simplifying the formation of family and strengthening the familial relationships on the basis of the Islamic Law and Ethics. Nevertheless, like any other institution, there may happen disputes in the family. In such cases, one shall eandeavor as much as possible to settle the disputes in way to avoid any damage to the valuable position of the family. In our laws which are adopted from the Twelver Shiite Jurisprudence, there exist potentials to which either of the parties to a claim may resort in stead of referring to a Court of Justice. It is noteworthy that the Rehabilitative Justice, as a paradigm for settlement of disputes, tries to engage the parties to a dispute in the process of its settlement and to create an environment of dialogue and compensation in order to lay out a reasonable path to settle the disputes. Therefore, paying attention to this approach for the settlement of fanilial disputes is an undeniable necessity. In this research, having confirmed the rehabilitative adjudication of familial disputes, the writer evaluates the effective solutions for their settlement

Alternative or non-judicial methods of resolving disputes refer to methods that resolve disputes outside the court. In these methods, which are interpreted as private justice, the disputes are resolved by a third party selected by the parties and in accordance with the procedure and procedure agreed upon by the parties. Non-judicial dispute resolution methods, including arbitration, compromise, mediation, etc., and the establishment of quasi-judicial institutions, as well as more attention to other methods of resolving disputes that have been established in the relevant laws, can be used to address judicial problems and prevent them. Proceedings will be effective, and as a result, the courts of justice will have the opportunity to hear the case more carefully. These methods have important and notable features such as easy and fast accessibility, minimal formalities, no cost or low cost, and fast results. It is hoped that by enacting the necessary laws and spreading the culture of using informal methods of resolving disputes, it will be possible, like other countries, to delegate an important part of litigation and disputes to these methods and reduce the volume of cases and work density in the courts.

Approval of dispute resolution council law at 1394 brings on various innovations in regard to authority and with respect to structure and judgment. In regard to authority the innovation can be counted in the case of granting the authority of issuing the writ for evidence gathering exclusively to the judge of council, computing the criminal offenses to the eighth grade pecuniary penalty, determining the limit of two hundreds million Rials in the movable financial actions and disqualification of council in considering the immovable properties actions, including family disputes about dowry, marriage portion among the financial actions, rent adjustment on the condition that there isn’t any dispute in the principle of rent relationship, restricting the authority settled in the village council in considering the peace and compromise claims. Also, in regard to judgment some innovations can be noted in the case of cost of judgment, determining the value of relief sought on the basis of real rate, the number of members in dispute resolution council, special judge of dispute resolution council and settlement of enforcement of judgments unit in the council too. In spite of frequent innovations, this law has also some inadequacies in the case of not-good understanding of legislator in resolving the dispute among the council complexes in judicial district, prolongation of hearing and judgment to determine a three months deadline of gaining compromise, lack of suitable policy for primary or introductory actions in line of preparing the file or records before issuing the command existence too.

As a new theory in criminal justice, restorative justice pursues the goals of compensating the damages inflicted on the victims, restoring the relationship between the offenders and victims, correction and rehabilitation of offenders, and securing the interests of the local communities affected by crimes. The essence of the mentioned process on the one hand and the intrinsic necessities of family environments on the other altogether make it essential to cover family relationships with restorative justice instead of penal justice. In addition, Islam too has based its precepts on restoration and correction of family relationships. In fact, advising to form familial courts, and to establish peace, kindness, and forgiveness point to the consistence between the mentioned lessons and the indices of restorative justice. And the important point is that the main sources of jurisprudential documents used to prove the credibility of the process of restorative justice in general relate to the relationships within the family, which highlights the necessity of using it within the family. The outcome of adoption of such a perspective can help remove familial issues from the domain of criminal justice, while also convincing the legislators to replace punishment with peace-based and civil solutions in the face of familial anomalies.

Among the nominate contracts, the compromise has this unique characteristic that can provide the results of other contracts, without imposing specific rules of those contracts on it. The ambiguity in the meaning of compromise on the one hand and possibility of substituting compromise rather than other contracts on the other hand, make it difficult to distinguish the compromise agreement from a contract that compromise has been placed in its position. Thus the aim of this article is to answer two questions: first what is nature of compromise agreement? second which are the measures of qualification a contract to compromise when the compromise is substituted for the other nominate contracts? Substantively, the nature of compromise is nothing but mutual consent and whenever the parties use the title of compromise, , the contract must be considered as compromise and in the cases which they have not used this title, and the nature of the contract is disputed, , categorizing the contract of compromise is preferable provided that the circumstances reinforce such reading.

Contract by compromise has a special status as one of the most important contracts in jurisprudence and Islamic law. Given the quality of terminating compromise over the conflict resulting from transactions, the event of option of condition in this contract has been dubious to the Imāmiyya jurisprudents. Arguing that compromise has been legislated for eliminating conflict in transactions and its necessity is preceptive, they have considered option in contract by compromise as prohibited. With an analytical
approach, this article has critiqued the proofs of those maintaining prohibition and has supported the event of option of condition in compromise in the light of such principles as sovereignty of will in contracts

The making of differences in international trade relations is not unusual; Therefore, in order to resolve disputes, "alternative dispute resolution methods"(ADRs) such as "Conciliation" should be considered before dealing with solutions that are in difficulty. For this reason, "International Commercial Conciliation Model Law" came into force in 2002 in "UNCITRAL". On the other hand, in Iran's law there is also an institution called "compromise" which is responsible for resolving disputes between the parties to the dispute. The question that arises in this regard is: "To what extent are the rules on Conciliation in international trade law consistent with the provisions on compromise in Iranian law?" Considering what has been discussed in this paper, the compromise institution in Iranian law and international trade law are largely in line with each other; and the only difference in its form can be seen in the need for a conciliator in international trade law. The research method of this research is descriptive-analytical using library studies and has been studied through books and articles available and related to the subject matter.

The expansion of international trade and the emergence of credit purchases have turned supplying financial resources into one of the major concerns in this area. Factoring is a good way to provide financial resources of companies manufacturing and distributing goods. The root of modern factoring dates back to the UK and then USA. This paper also examines the nature and form and kinds of factoring effects in both countries. British judicial of the UK considers factoring in both kinds with recourse and without recourse a sale of request; while the majority of judges of US consider factoring with recourse a debt with a collateral. Factoring as a private contract is subject to the principle of free will and he only domestic substantive rules of countries is agreed on the will of the parties. ANCITERAL and UNIDROIT despite their importance only establish form rules. The factoring effect between the agent and the seller is established a legal relationship is for parties with legal obligations that the basis of it is comprise of parties. The factoring also affects the debtor.

In case of murder, in accordance to the holy verses, traditions as well as the consensus of jurisprudence scholars, avenger of blood has the right to demand retaliation, pardon of murderer and compromise on blood money. There is no discussion on this question that “can the parties of the claim compromise on limb retaliation instead of soul retaliation?” It seems that relying on the principles and reasons such as the right of retaliation, compromiseability of the right, analyzability of the retaliation, comparability of the similar cases, religious preference, recommendation of shariah sources to reduction of homicide and retaliation as well as the necessity of life preservation, it is possible to say that such compromise is permissible in accordance of Islamic jurisprudence and legal system; and act to the benefits of the both parties. These article first attempts to state the problem and then to discuss its legitimacy reasons.

In the case of forgiving the murdered by the victim of crime, the victim enjoys the right to forgive the murderer or ask for the retaliation, especially when s/he finds herself/himself on the verge of death. There is consensus among the Islamic jurists and lawyers on existence of such right for the victim. However, there are controversies and different approaches on the post-forgiveness consequences. Therefore, in this article, I focused on the initiative right of victim on the right of retaliation, and as a result his/her heirs, along with the analysis of Islamic jurists’ opinions and adopted approach by the Art.365 of Islamic Penal Code (2013) concerning the given issue.