پژوهشنامه حقوق اسلامی
پیاپی 50 (پاییز و زمستان 1398)

Regarding to the importance of prisoner's right in islam and that the Iranian Law has been under influence of shia jurisprudence and also regarding to international conventions related to right to compensation for unlawful arrest or detention, the study of this issue is necessary. To have a discussion of this issue we should pay attention to the important subject which referred in jurisprudence as "lost benefits" of human being, by the reason that according to a theory in jurisprudence, the lost benefits of human being are no under the guarantee but according to other theory, they are under the guarantee in some circumstances. So we have discussed this issue and then the issue related rules such as the rule of Ehteram, Etlaf, and the rule of Lazarar as the basis of the issue of right to compensation for unlawful arrest or detention. Thus we examined the related rules in the present research.

In labor relations, the worker as the weak side of the contract always requires the maximum protection of the legislature. Once this is complete support, he does not have to worry about earning his wages and can claim his full right. However, the question is, have public utility tools been useful in achieving this important goal? Otherwise, how can be supported by the worker? What is gained from this research is that, However, in order to achieve this, public mechanisms are applicable but Due to the lack of effectiveness of public tools, the legislator rightly seeks to use special support leverage, referred to as "special guarantees". also, by comparing the laws of England, Egypt, Iran and the documents of the International Labor Organization, it became clear that Countries do not have the same utility in this regard and even the International Labor Organization has lagged behind the laws of England and Egypt as the main custodian of establishing international labor law standards. In such a way, it can be said that the strategies of these two countries are a more appropriate legislative model for reforming the labor law of Iran.

Joint tortship in its general sense is the intervention of more than one personin committing tort. In this sense, the jointness acompanicity and participatesin it. The jointness, in a special sense, is limited to interfere more than twopersons in the commission of the operation and the material element of thetort. In the US legal system, in addition to cases where two or more peoplereally commit actus reus of tort, there are instances where with use of titlessuch as "attribaution", commition of actus reus is attributed to more than oneperson, Virtually. In this legal system, this is based on goals such as redressand deterrence. In Iranian law, according to the well-known Opinion, thejointness in tort, is subject to the commission of actus reus by two or morepersons and apparently in some cases, like the American law, with implicitusing of the title "attribution", realization of jointness in tort is ruled thatdoes not look right. Because, contrary to the US law and some veiws inpopular jurisprudence, when the legislator in the latter part of Article 535 ofthe Islamic Penal Code of 2013 considers intent to have an impact on thematerial reality of the jointness, he does not abide by all its effects andassumption. In the case of criminal responsibility, it imposes the lesspunishment on the accomplice and in the case of civil liability, he assumesthe distribution of damages on multiple causes. In the present study, it hasbeen proved by a descriptive-analytical method that, unlike the US lawwhich because of its instrumentalist nature, jointness in wrongs has widescope, in Iranian law, because of its ethical basis, jointness in wrongs, hasnarrow scope and Accordingly, it is proposed to amend or delete the last partof Article 535 of the Islamic Penal Code of 2013

The principle of the release of defendants in criminal proceedings against theexceptional use of their temporary detention inspires significant orientations incriminal policy. This principle is also emphasized in jurisprudentialconsiderations, with exemplary cases of detention of defendants. Theimportance of these two dimensions is heightened when the legislatorrecognizes new supervisory mandates in support of defendants' release underthe 2013 Criminal Procedure Code. The developments in this law with respectto Islamic jurisprudence are in the various aspects of the provision oftemporary detention and the feasibility of adapting judicial supervision tojurisprudential considerations. In addition, the UK Criminal Law Authority, asan example of different instances of security clearances, especially in thecontext of temporary detention, makes the various aspects of the case moreprecise. According to the benchmark review, it can be seen that theseoversight arrangements sometimes with security readings and sometimesduring the investigative phase will have wide scope for expediency ofcompetent judicial authorities in criminal justice, although this jurisdictionaland jurisprudential discretion. Practical Ruling The principle of proportionalityin English law is consistent, but the particular orientation of Iranian penalpolicy to temporary detention reflects a legal and practical judicial approach.Nonetheless, resorting to surveillance, mistrust and early resort to judicialoversight in Iranian criminal law, and in line with jurisprudentialconsiderations based on the exception of temporary detention, except in casessuch as the charge of murder, do not supervise the defendants as security,Rather, it provides another guarantee of securities arrangements different fromEnglish law, rooted in security terms in securities. Therefore, it seems thatcompliance with supervisory-based security responses is in line with thejurisprudential demand and that it can be emphasized in order to increase itsuse of structural and enforcement challenges in the judicial process and merelyto temporary detention which is of a nature Punishment is not used.

One of the essential tools of direct democracy in democratic systems is thereferendum .There are ambiguities around the legislative referendum whichis the most commonly used means, also recognized in Article 59 of theConstitution of Iran, including the meaning of the terms of this article, therole of sovereign institutions such as the Guardian Council, and the status ofthe outcome of the referendum in the country's norm hierarchy.This descriptive-analytic research highlights that the constitutionalcontrol by the Guardian Council places before the referendum, and it has noright to control the outcome of the referendum. Also, in the statutory law, thetype of referendum based on its condition's, the citizen's initiative, as well ashow to identify the most critical issues and the appropriate quorum for theratification of the outcome shall be recognized.

The requirement to conscription is one of the important issues of public law. This topic from Beginning to enter Iran has been supporters and opponents. One of the citations that mentioned by a group of shias' jurists about the legitimacy of obligation to conscription is based on The concept of Jihad in shias' jurisprudence. Current research via descriptive-analytical method and library studies, by reviewing the Quranic verses and lifestyle of the Imams in reacting toward those people who have no acceptable reasons for dont participating in jihad, Concluded that use of some kind of Coercion toward those people is legitimate. Most of that requirement were of social pressure type and Threat to the retribution of the hereafter and less of theme were direct obligation and forcing people to participate in the battlefield. Anyway killing people for dont participating in jihad isn’t legitimate. Keyword: conscription, Obligation to Jihad, Quranic verses, lifestyle of the Imams, Imamiye jurisprudence, conscription, obligation to conscription

Response to stock exchange crimes is a function of the relationship betweenthe government and the economy; In this regard, with a view to changing thetheory of government intervention in the economy from welfare state toregulator governments and the difference between the level and the mode ofgovernment intervention in the economy, two models can be explained; Themodel of traditional response and repression is with the full intervention ofthe government. This model is criticized because it does not work in light ofthe complex stock market crimes, sovereignty intervention and criminaljustice practice and not only is it not beneficial to apply this tool with thetools and guarantees of criminal enforcement, it also damages the economyof the community and closes parts of it.Also, in the traditional criminal justice model, the response is limited tospecific penalties due to the complexity of the crimes and the violations ofthe stock exchange, it will not result in compensation for the losses of thestock exchange victims, who are generally investors and shareholders. Thesecond model is the economic adjustment model that maintains the basis ofthe response to maintaining the economic order;Along with monitoring and controlling crimers in order to recover andrepair the damages inflicted on the body of the economy of the community,it knows and has a greater role to play in preventing losses and losses ofstock exchange crimes; Along with monitoring and controlling offenders inorder to recover and repair the damages inflicted on the body of the economyof the community, it knows and has a greater role to play in preventinglosses and losses of stock exchange offenses; It follows from the descriptiveanalyticalapproach that the entry of criminal rights in response to stock andsecurities crimes as a regulatory mechanism should be used as the last stepand the last resort. In this article, by understanding the principles governingthe economic regulatory system and its tools, we will evaluate traditionalcriminal justice methods and economic regulatory to responding to stockexchange crimes.

The experience of the four decades of the Islamic Republic's in Iran since1979 has been a process in which the status of the president has been thesubject of legal and political dialogue between Iranian thinkers. In theopinion of some, the president is in the first place in government, in theopinion of some, the president is assumed in the second position of thegovernment. It seems that the review of the constitution, the ordinary laws,and the Guardian Council's decisions could be the resolve suchdisagreements. This article, having understood this importance, sought toanalyze the views and documents. This research answers this question. Whatis the position of the President in the context of the Islamic Republic ofIran's constitution? Answering this question can be helpful in resolving someof the above disagreements. In response to this question using thedescriptive-analytic research method, it is concluded that: Firstly, in none ofthe ordinary laws, constitutions and decision of the Guardian Council, thepresident has been addressed as "the first person of the country". Secondly,the status of the president was disputed among the lawyers. Third, some ofthe articles of ordinary laws have used phrases that raise the doubt that thepresident is the head of state

The jurists agree if the mother who has the custody of her child is married toa person other than her father's father, the custody of the mother will becanceled. If the mother divorces her from her remarriage, there isdisagreement over the return or non-return of the custody of the mother.Many Imams and Sunni jurisprudents believe that the divorce of a motherfrom a barbarian man comes back to her custody. In their view, the mother'sremarriage is a barrier to the exercise of custody, and it is prohibited bydeterioration. In contrast to Maliki's jurisprudents and some of the Imami'sjurists, it is believed that the remarriage of a mother with a felonious manwill be lost to the custody and will not be divorced. It seems that theemergence of narratives, the rule of irreversibility of the right ofimpoverishment, and the fall of the will of the fall, implies that the right ofcustody of the mother does not return to separation from the new wife.

In Geneva Conventions 1930 and 1931, on bill of exchange, Promissory note and check, issuing and completing content of commercial documents by agency has been accepted. So that the client submits an incomplete document and the agent complete and issue it. So the document has not been issued unless the agent completes the content of document. Nevertheless, in Iran law, has been referred to issuing bill of exchange, Under Article 227 of the commerce code, and the domestic legislator's view about such an agency, regarding the check is ambiguous. Facilitating the Explaining Legal effects is an important effect of accepting this kind of agency as regards the check without date and the check with Prior and late date. This article study the theory of agency in issuing and completing content of the check and Defends from this theory in Iran law. Contrary to prevailing opinion as regards the issue date about the checks without date and the checks with prior and late date that consider the Post Date as an Issue date and in the case of agency, the Post Date consider as a delivery date to the agent. On the other side, the document is issued when the agent complete the incomplete document. In addition this article examines the effects of Acceptance and Rejection about this theory.

With the ratification of the Law on the Establishment and Procedure of the Court of Administrative Justice, adopted in 1392, the Expediency Council, and subsequently the removal of the Branches of Detection, a two-stage hearing in the Administrative Court, it was again foreseen that among the most important and influential powers of the reviewing branches, Or law, which is applicable to the application of Article 79 of the Law on the Organization of the Court. In accordance with the aforementioned provision, the exceptional nature of the special authority in the extraordinary hearing is for the head of the judiciary and the chairman of the Administrative Justice Court to refer the definitive opinions of the Divisions of the Administrative Justice Tribunal, which are contrary to law or the Sharia, for referral to the Tribunal's Appeal Courts. In this study, by studying the history of dealing with the opposing opinions in the post-revolutionary laws, and in particular the laws and regulations after the Islamic Revolution, the judicial analysis and the opinions of the General Board of the Administrative Justice Court in response to the challenges, ambiguities and scope of the proceedings in the form of the application of the article Article 79 of the Code of Administrative Justice has been reviewed

Legitimacy of Application of Production Sharing Contracts in Iran's Oil Industry Utilizing the Capacity of the Mines Act One of the challenging issues in the Iranian petroleum industry over the past decades has been the issue of applying contractual method of production sharing for the development of hydrocarbon fields. In fact, the interpretation made by a number of directors and policymakers in the field of oil industry that application of production sharing contract is unlawful due to conflict with Article 45 of the constitution, has become an obstacle to the evolution of oil contracts in Iran, which even after approval of Petroleum Ministry Act in 2012 authorizing the application of participatory contractual methods in the upstream sector, virtually no change has occurred so far. In article 45 of the Constitution, oil resources are not mentioned in the category of Anfal, but from the jurisprudential and constitutional point of views, oil resources are considered as mines (Anfal). It is important to note that the Mines Act has authorized concessionary model for the exploitation of mines. Therefore, it is argued that when, from the perspective of the Constitution, mines and oil resources both are considered as Anfal, why the legislator has allowed the use of concessionary method for exploitation of mines while application of the production sharing method in the oil industry, which is far better than the concessionary model in terms of public interest, is in contradiction with Article 45? A careful examination of the theoretical and legal bases for the exploitation of oil and mineral resources suggests that, contrary to what is being interpreted, the common legal basis between mineral resources and oil resources, that is to say, both being regarded as Anfal, implies the logical consequence that when using the concessionary method for exploitation of mines is permissible, the use of the production sharing method in oil industry is legally much more permissible. It is noteworthy that the analytical approach adopted in this research is based on library studies.