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

Any process of assessing the Regulatory Impact Assessment (RIA), ex ante to its approval, is subject to an estimate of its "regulatory burden", meaning the costs of complying with the laws and regulations for businesses. Participation in regulation in the form of regulatory burden assessment in some developed countries is done by institutions representing economic actors. A suggestion that can be made on how to involve economic actors in ex ante Regulatory Impact Assessment that the Iranian Chamber of Commerce, Industries, Mines & Agriculture, in cooperation with other representative bodies of economic actors, evaluate the burden of the draft in the form of reports to the Government-Private Sector Dialogue Council and "Committee of Article (12) ("Business Support Committee"). In fact, the practical and available method of assessing the burden of regulation in Iran is to survey economic actors, trade unions and organizations about laws and regulations and reflect their costs in a documentary manner to the regulatory authorities.

According to the narrations, all the rules that are needed by mankind are stated in the Book of Sunnah. However, since the Islamic government includes fixed and variable rulings, and the limited and finite nature of detailed evidence and texts and the infinite nature of events and events, it is possible and even necessary to appeal to expediency, therefore, it is necessary to appeal to expediency and general principles and purposes. The Sharia community responded to the events of the day and new developments. Reflecting on the legal texts of our legal system clearly shows that taking into account the principle of expediency, putting collective expediency before the rights of individuals in the administrative system is one of the serious mechanisms of Islamic legislation in consolidating and organizing the relations between the people of the nation and government institutions based on Islamic limits and values. Article 40 of the Constitution is a special manifestation of the presence of the thought of collective expediency in the legislation of Iran's legal system. After explaining the principle of expediency as the supreme principle governing the Islamic legislative system, the following article aims to outline the position of this principle in the Islamic legislative system, and finally explain the centrality of this principle in the administrative system by emphasizing the primacy of collective expediency.

Expediency is a component that is widely used in different aspects of human life, so there is no doubt about its importance, but its place in different areas of life should be clearly explained. In this research, the information obtained from library sources is discussed with descriptive-analytical method to the place of expediency. Each of the fields of deriving Sharia rulings, enactment of laws and implementation have different characteristics from each other, which leads to an independent examination of the expediency position in each of them. Expediency in the field of inference is as a criterion for falsifying divine decrees in such a way that each division of Sharia rulings has some kind of connection with expediency as a criterion for falsifying rulings. In the field of legislation, laws that have a jurisprudential value in Sharia rulings, expediency in the same sense will be the criterion of falsification, but in laws without a jurisprudential value, as the subject of provincial rulings and the discretion of the Islamic ruler in enacting the laws, it is required in accordance with the requirements of time and place. The position of expediency in the field of implementation is also in two approaches: a) implementation of expediency as a "requirement belonging to a Shariah ruling or law" and b) expediency of implementation consists of changing the conditions in such a way that the implementation of the original rulings and laws is not possible and the rulings and laws conflict with each other.

In response to the rapid development of artificial intelligence (AI), various legal systems have created different regulatory and supervisory interventions for this technology. While some countries prioritize consumer protection by imposing stringent regulations, others adopt a more permissive approach to promote innovation. However, comparing different models of AI regulation can help find the right balance between innovation and protecting consumers against the risks of AI. This paper, using a descriptive-analytical method and a comparative study, seeks to answer the question of what Iran's regulatory policy on artificial intelligence is. An examination of AI regulatory models in the European Union, the United States, and China indicates that each legal system must organize this matter according to its own objectives, policies, requirements, and characteristics of the legal system and technology. Iran's legal system suffers from serious structural and normative gaps in responding to this technology and other emerging technologies like AI. In 2021, the Supreme Leader of Iran declared the development of AI technology and its related systems as one of the country's macro-policies. However, the policy of developing artificial intelligence without addressing these structural and normative gaps not only potentially endangers the rights of citizens but also seriously challenges the development of AI-based businesses.

The preservation of family entities is indispensable for the well-being of society, and the supportive approach to family entities, considering the minimum rights principle of criminal law, has been explicitly stated in various laws. In the latest draft of the Penal Code, multiple provisions have recently been introduced to criminalize support for family entities, including the protection of health, the establishment and sanctity of the family nucleus, and governing relationships. Examining the latest developments in legal transformations is crucial. Therefore, this article, based on a library-based research method, describes and analyzes the criminalization and legislation process related to the support for family entities in the draft Penal Code. The article identifies serious flaws in terms of the number of criminal titles, the type, and extent of punishments, leading to the necessity of a legal approach based on proposed legislative amendments.

Water and water resources are considered one of the most strategic issues for human beings. Water management, including legislation, is important for all governments. In Iran, numerous laws related to water have been enacted over the past century. The present study aims to investigate the evolution of water-related laws in Iran in order to identify the existing and revised laws in this area.

This descriptive-analytical study was conducted by referring to library resources.

The findings show that numerous laws have been passed regarding water. However, these laws have been mostly case-specific and enacted without regard to previous laws, failing to meet international standards for water management.

The abundance of water laws in Iran does not necessarily imply their desirable quality. The existence of numerous, case-specific and inconsistent laws has led to practical problems. Therefore, reforming the existing laws and developing comprehensive and integrated statutes seems necessary.

In recent years, we have witnessed the emergence of innovative technology in the field of financial transactions, which significantly differs from electronic money and traditional SWIFT-based systems. This new technology not only provides a new form of money transfer but also prevents corruption by producing money and implementing stringent security guarantees. By integrating with global developments in technology, Cryptocurrency has opened a new chapter in monetary transactions. This emerging phenomenon, unique in its kind, has a dual function for governments. While cryptocurrencies facilitate financial transactions on an international scale, they also minimize governments' monitoring capabilities, leading to simultaneous acceptance and concern regarding the application of cryptocurrencies in the intergovernmental space. In this article, while briefly discussing the concept of cryptocurrencies, the question is answered as to what considerations lawmakers should take into account for regulation and governance in the field of cryptocurrencies. Therefore, considerations such as regulatory evasion and the necessity of attention to government digital currencies, adherence to treaties for monitoring off-exchange transactions, drafting enforceable regulations such as domestic contract rules, and attention to religious considerations such as the possibility of disrupting the economic system have been examined.

Previous legal provisions cannot predict and regulate all possible future situations, and laws are composed of words that are open-textured, meaning that they are always susceptible to different interpretations. This has made the role of judges crucial in determining the content of legal rules. How is this role assessed in the fabrics of the Iranian legal system? Furthermore, what is the position of judges in lawmaking or, more precisely, what is their role in judicial legislation, and how does this position relate to the principles of public law and considerations related to the separation of powers? This descriptive-analytical research attempts to examine the conceptual framework of judicial legislation in light of the theory of "legal realism" and analyze the legitimate boundaries of judges' discretion in the production of legal rules from the perspective of public law. This analysis requires, on the one hand, the clarification of the relationship between jurisprudence and adjudication and legislation, and on the other hand, the evaluation of the relationship between the Iranian legal system and one of the modern schools of legal philosophy, namely the school of "legal realism." According to the research findings, historically, the "Mujtahid Judge" has been the authority for declaring and applying legal rules, which creates similarities between the role of judges in legal theory and the role of judges in the school of "legal realism," although currently the substitution of individual ijtihad by the will of representatives in the legislative branch has introduced a new formulation in the fundamental principles of the legal system.

types of non-Muslim groups; The challenge of legislative expression and the structure of the legal system:The system that governs social interaction and the position of non-Muslims in Islamic societies and how to explain such a system is significant from various dimensions. The course of these developments in explaining the interactive system; It includes the contractual arrangement based on the obligation contract to the legal arrangement based on the citizenship relationship, but the important challenge that has been reflected in the language of the law and stated in Article 310 of the Islamic Penal Code; It represents the discursive distance of the legislator with the structure of the legal system of the Islamic Republic of Iran. Such an expression is not in accordance with the objective space and reality of the legal structure and public law, and faces forms of inconsistency and misalignment of expression and structure, as well as practical ambiguity.The present article seeks to analyze and investigate the challenge of legislative expression and the structure of the legal system in explaining the non-Muslim guilds and the discursive distance existing in the current legal conditions. 

The term "Public service officers" is mentioned in several examples of economic crimes in criminal laws, but its meaning and examples have been ambiguous due to the repeal of the law on the trial and punishment of public service officers. Although according to the unanimous decision number 798 of the General Board of the Supreme Court, the employees of private banks are examples of public service officers and the subject of the crime of Article 598 of the Penal Code, the said decision cannot explain the concept and examples of public service officers and its effects have added to the ambiguity of the issue. To respond to the evolution of the concept and examples of public service officers, this article along with the pathology of judgmental procedure, the transformation of the scope and examples of public service officers after the issuance of the unanimous decision, and finally the solution to the legal refinement of this ambiguity, through approval The new single article is proposed, to solve the mentioned challenge.

The relationship between government ideology and criminal legislation, due to its interdisciplinary nature and interaction with public law and political science on the one hand, and interaction with criminology on the other hand, has found less room for discussion and analysis in the country's scientific and academic societies; Therefore, in this article, after knowing the concept of ideology, the impact of the ideology of the government on the process of criminal legislation is investigated in different historical periods. With the development of increasing government interventions in the personal and social life of citizens, this important question is raised that in relation to the establishment of laws in the field of criminal law, the legislator is influenced by what factors and what principles he is subject to. In this area, we will mention the factors affecting the process of criminal legislation (criminalization). Regardless of presenting a segmented model of political, economic, etc. factors, we can talk about the influence of ideology as an effective political factor on law enforcement. The research method is descriptive and analytical.

Increasing bills without expert support and decreasing the quality of laws and non-implementation of laws are among the problems of Iran's legislative system. One of the solutions to solve this issue is to carry out expert activities before announcing the receipt and include a guarantee of non-announcement of receipt for non-expert bills. Therefore, the question arises whether in the legal system of the Islamic Republic of Iran it is possible to require components to announce the receipt of legislative drafts? If the answer is positive, what is the mechanism for determining the feasibility of the bill in the parliament? This research has tried to answer this question by descriptive-analytical method and using library resources. As a result, although in the existing procedure, announcing the receipt of bills is not optional; However in Iran's legal system, it is possible to determine the components to recognize the declaration of collection in the Islamic parliament within the framework of the Iran's constitution. These components can be determined and gradually implemented using the capacity of the general policies of the legislative system. Finally, in order to guarantee the rights of representation, their verification must be formal. In addition to this strategy, in case of lack of information or technical complexities of the issue, the parliament can advance its goals by using empowering laws. The declaration of receipt of such drafts does not require verification of the mentioned components.

Social harm is any individual or collective behavior that does not fit within the framework of moral principles and rules of formal and informal collective action of the society and entails legal prohibition or moral and social obscenity. The reduction and management of social harms in the first place requires the development and approval of appropriate laws and policies that are appropriate to the cultural, social and geographical context of each region, Indubitably, the approval of laws and regulations on the one hand requires understanding the conditions of the status quo and culture and norms of the society. On the other, it requires creating and developing favorable conditions in managing and reducing damages. In the legislative and executive structure of Iran, despite the approval of various laws and the assignment of various tasks to the responsible institutions, there has not been significant success in this field, as it should be, and beyond that, we have also stagnated in some cases. The lack of a specific plan or any strategy has not only created problems in the field of legislation, but has also created many implementation problems, including parallel actions of the responsible institutions. Taking advantage of the field research and library research method, the present study analyzes the legislative and executive actions of the institutions responsible for social harms in structural and formal arena.

The occultation of the Infallible Imam (as) and the emergence of new events increased the Muslims’ need to know the legal (shar'ī) ruling regarding the newly-emerged cases. It made some Islamic scholars struggle to consider the Islamic worldview and to believe in an area free of legal ruling. In Imāmī jurisprudence, the contemporary jurist Martyr Sayed Mohammad Bāqir al-Sadr called it “Mantiqat al-Firāq” (Belt of Lacuna) and in Sunni jurisprudence, the Egyptian jurist Yusuf al-Qardāwī called it “Mantiqat al-‘Afw” (Belt of Permission). Based on the descriptive-analytical method, this research aims to compare the two theories to investigate and analyze their feature and ambiguities. These two theories have many differences and similarities with each other that can be examined. Examining these two theories, it may be concluded that both areas, which have been proposed with the aim of social justice and respect for the general interests of the society, and in its design, the universality and immortality of the Islamic Shari'a have been taken into consideration, are empty of legal required rulings. In order to fill this area, it is necessary to bring up specific criteria and standards to match them with the general principles and rules of Islam. In addition, both theories have shortcomings that must be amended and completed by their proponents or even critics in order to be applicable.

The fourth principle of the constitution stipulates that all laws must be based on Islamic principles and that it is the responsibility of the jurists of the Guardian Council to determine them. What has been discussed, is the judgement of the criterion of compliance of the laws with the legal criteria, considering the differences between the judgements of the pundits. One of the theories that can be proposed, which has not been studied so far, is the theory of easier judgement. The author tries to rewiew it for the first time in the position of a standard judgement. Among the foundations of this theory is the rule of “taisir”. The theory of easier judgement is examined with several criteria and it becomes clear that the theory due to lack of sufficient and necessary basis in Imami jurisprudence and insufficient use of characteristics such as: Comprehensiveness, acceptance among jurists and sufficient power in resolving interests and corruptions, do not have the necessary strength to be considered as a standard legislative judgement.However, it should be said that ease, considering its importance in Islam, can be considered as a rule for measuring and identifying standard judgement.

The jurisprudence of legislation, as one of the added jurisprudences in the contemporary era, like other jurisprudence, has its own system of issues and problems, a system of subjects that integrates the jurisprudential knowledge of the jurist into the matter of "legislation". One of the questions raised by the supervisor of this field of knowledge is the question concerning its "methodology"; does this field of knowledge have a different methodology from conventional jurisprudence? Since Imami jurisprudence has a long history and is characterized by scientific discipline, is it possible to use the same approach and method in the jurisprudence of legislation?In this article, with the conceptualization of jurisprudence, legislation and the relationship between the jurisprudence of legislation and political jurisprudence and paying attention to the theological foundations of the jurisprudence of legislation, the author tries to highlight some methodological considerations that the researcher in the field of jurisprudence must pay attention to while using the "Ijtihad method". Based on the considerations made, the method of ijtihad in legislative jurisprudence cannot be the method of ijtihād that is used in conventional jurisprudence, but in this field, two very important points should be taken into account: One, forming a signification network; second, paying attention to the texts that show the intentions.

One of the challenges facing the legislative system concerning lawmaking is that the law is in conflict with some fatwas of Shiite jurists. Under this issue, another issue called "standard fatwa" is raised, which has been discussed from the point of view of jurisprudence since the introduction of modern law to the Islamic world. Just as this topic was the place of discussion among jurists during the constitutional period, it has also been taken into consideration in this current era and in the legislative process of the Islamic Republic of Iran, with many opinions and theories having been invented around it. Presenting a legitimate and efficient theory about "standard fatwa" can solve some of the existing challenges of the legislative system and help facilitate the legislative system. In this article, which relies on library resources and analytical-ijtihad method, four points of view are presented. Two views are extracted from the words of Sayyid Muḥammad Kāẓim Yazdi, and the third view is the theory offered by Martyr al-Sayyīd Muḥammad Bāqir al-Ṣadr, a theory which has been criticized by the succeeding generation of scholars. Finally, the preferred point of view is explained based on the accepted narration transmitted on the authority of ʿUmar b. Ḥanẓala and marfūʿa tradition of Zurāra. In this theory, "famous contemporary fatwa" aims to provide a solution for the legitimate analysis of "standard fatwa".

One of the most important issues in criminal law is the subject of evidence. Because according to the principle of innocence, punishing individuals requires proving illegal behavior by presenting evidence. Among the arguments, confession has unique characteristics and indicators that play a decisive role in all legal systems in terms of probative power. The importance of the position of confession in the Iranian legislative system is such that it is mentioned with special interpretations such as the Queen of Reasons and Seyyed Al-Binat. For this reason, in addition to the importance of the need for in-depth study, it can be viewed from various scientific and methodological perspectives and evaluated from the perspective of thinkers and theorists. Max Weber's theory of rationality is one of the sociological theories that has been influential in the field of law and especially legislation. In the present article ، an attempt is made to evaluate confession from the perspective of Max Weber's theory of rationality using a descriptive-analytical method. The result of this article shows that although manifestations of rationality can be seen in important rules such as assessability and biodegradability of confession in the Iranian legislative system. But in contrast to the legislator's definition of confession, acceptance of recourse to confession, the need for confession before a judge and multiple confessions in some crimes, in addition to contradicting the two rules, with the indicators of Max Weber's theory of rationality such as evaluation, comprehensiveness, objectivity and tangibility Confession is not in line either.

In Islamic government, legislation is one of the most important examples of application of guardianship [Velayat] to people, their honors and properties. Therefore, recognizing the standard Fatwa in this area is extremely important, since it will be the legitimacy test of the legislative’s actions. Considering that in the Age of Absence [of the Twelfth Imam] the right to apply guardianship has been assigned to a completely qualified jurist and assuming that a government has been formed, the making decision in social and governmental affairs (rulings of the Sultaniyeh [governance]) is the responsibility of the ruling jurist, the present article assumes that the standard Fatwa in legislation, which is the area of interference in social and governmental affairs, is the ruling jurist's Fatwa. With this assumption, this research, by re-investigating this basis in the opinions of constitutional judge, with a descriptive-analytical method and by examining the interpretive, consultative and comparative opinions of the Guardian Council, has come to this conclusion that several opinions from the constitutional judge support and strengthen the said assumption. On the other hand, this view that the Fatwa of Guardian Council’s jurist is the test for measuring the legitimacy of the Parliament’s enactments, can be interpreted as the confirmation of Constitutional Act by the ruling jurist and the assignment of supervision by him. Accepting this view will not only deprive the Guardian Council of the important task of supervising legislation, but also it will be a doubled emphasis on the necessity of satisfying some characteristics such as "justice", "awareness of the requirements of the time", "being a Muslim" and finally "expertise in various legal fields" which are mentioned in Principle 91 of the Constitutional Act in selecting jurists and lawyers of the Guardian Council.

One of the most important issues that the Sharīʿa-based legal system must have an analysis and solution for is the "relationship between jurisprudence and law". This issue has been raised in Iranian society since the beginning of the constitutional period, and it is still being raised with more complexity and ambiguity during the Islamic Republic of Iran. There are several questions around the relationship between law and jurisprudence. Questions that need to be answered from the point of view of jurisprudence using the inferential method. What makes the analysis of the relationship between jurisprudence and law difficult are the fundamental differences that exist between these two fields. The differences that caused some jurists to vote against the illegitimacy of legislation (taqnīn) during the constitutional era. The rightness of the said vote is the issue of the present study.In this article, the author has attempted to first outline the "relationship between jurisprudence and law" considering the differences between these two. Then he has proved the legitimacy of legislation by using solutions, explaining the extent of the presence of jurisprudence in the law according to the requirements and atmosphere of society. Since in the legislative position, conflicts do happen between the fatwa to be followed and the approved law, three possibilities are expressed in order to resolve the conflict cases based on the jurisprudential foundations and the method of ijtihad.