نشریه مبانی فقهی حقوق اسلامی
سال هفتم شماره 1 (پیاپی 13، بهار و تابستان 1393)

One of the most important juristic rules of the Penal Code has also referred to the rule is trying to mislead and Qsamh. This paper estimates the lexical terms, law and literature scholars have tried to speak to him the way of the Penal Code have to check the rights and Islamic criminal law. And comparative basis to examine the gaps in this regard is more pronounced. More research is an important issue in the importance of blood and breath. This is an issue that is important to further investigate the importance and population Dma’ that you can easily swear by Qsamh and 50 times the murder warrant issued for someone? However, after reviewing the jurisprudence and legal documents can be achieved to the conclusion that it is not sufficient to prove Qsamh and besides trying to mislead and influential figures in the evidence warrants.

IbneIdris appeared in an era that jurisprudence had stagnated as a result of Sheikh’s dominant science. Because of his critical spirit and being open mind, he fought against this stagnation by writing the book Sarảer and mad a great revolution in the jurisprudence. In addition to revelation, this book is of a very high state in jurisprudence and in periphery and significant information that cannot be found in any similar work. It provided a ground for new methods of jurisprudent deducting and thinking, and paved the way for the jurisprudence improvement and the next new intellectual jurisprudents. One of the major reasons and incentives behind writing the book Sarảer was to help jurisprudence come out from this deadlock. Moreover, manner influenced by historical domination of the oppressors and crusades was another reason for compilation of this book. The other reasons were internal causes and the atmosphere dominating on scientific society and decline of jurisprudence of those days that caused writing this book to exit from deadlock and stagnation in order to pave the way for his jurisprudent followers

The issue of sex-change and its acceptability or non-acceptability has always been raised in the Islamic jurisprudence. The Christian religion and the non-Shiite sect of Islam have taken it as inviolable. They have regarded respecting the alternations in the God’s creatures as the main reason for such sanctity. They maintain that sex-change is a sort of alteration in the “law of creation” and a satanic act and consequently it is illegal and unlawful. In contrast, the Shiite sect of Islam believes in the permissibility and non-sanctity of the sex-change. They have considered several reasons for such a permissibility including the principle of Ebahe, the principle of Javaz, and the jurisprudence rules of Ezterar and Nafye osro haraj.Someone who transforms his or her gender should be given a new identification certificate in accordance with his or her new identity. The socio-cultural consequences of the sex-change should also be taken into account. For example, in Iran, if the president changes his sex and becomes a female, he immediately will be deprived of his position since according to the article 114 of the constitution, “the president should be chosen from among the political or religious men and directors and needs to be competent”.It is also true for the judges, the leaders of the prayers, etc. which are especially for men and women cannot obtain such job opportunities.On the other hand, sex-change dissolves (annuls) the marriage contract since it leads to continuation of pairing among two persons of similar gender. The sex-change, roughly speaking, has no influence on the bride’s marriage portion since the wife will possess it as soon as the marriage contract takes place. The other edicts such as Edeh, Heyz, and Nafas are the writs which are especially for the women. Consequently, sex-change results in deprivation from Edeh. Sex change also deprives the women from the alimony in the enduring marriage contract. In the shot-term marriage, if the alimony has been stipulated as a condition, sex-change results in its deprivation. Sex-change has no influence on the payment of children’s’ portion. The sex-change of father does not takes away his guardianship upon the children. In addition, the mother’s sex-change cannot bestow the right of guardianship to the mother. Sex-change, also, does not cut off the family relationships and titles but it merely changes the family relationships titles and the very close kinship among the family members persists. Regarding the share of an inheritance of a sex-changed person, his or her existing gender will be taken into consideration. In other words, the gender of the heir at the time of the heiress death will be taken as a criterion for action. The sex-change of parents has no influence on the extent of their share of inheritance from their children. The sex-change has no effect on a person’s civil authorities. However, it is influential in some of his or her penal authorities. Although the sex-change does not take away a person’s penal authorities, his or her existing gender will be taken into consideration for punishment enforcement.The resumption of father from Ghesas-e-Nafs due to killing his child involves the father who has changed his gender. Regarding the difference between the blood-ransom for men and women, the crime’s gender at the time of enacting punishment will be taken into consideration. Concerning the enforcement of punishment for an apostate, the straitened circumstances and the accused interest will be taken as a criterion for action. The blood ransom will be paid to the plaintiff in terms of his or her gender at the time of demanding for the payment. Regarding the identification of someone’s mental soundness, the person’s new gender will be the criterion for action.

The jurisprudential commitment rule as well as the other rules affected on the Iranian legal system, Legislature Legislator based on this rule accepts the fatwas of jurisprudence non-Shia and divine religions in the discussion of personal status law. " jurisprudential commitment rule " Is the best legal obligation of the disciplinary rules that the holy legislator lectures it for convenience and discounts of the Islamic community And, according to the tradition in Shiite jurisprudence the duct attend of fatwas of other religions, most of the items listed in the Iranian Constitution to be fitted, And legislator can by change their interpretation of personal status discuss, Or by applying the " jurisprudential commitment rule " as article By setting up economic and social relationships between Shia and non-Shiite Iran in various contracts and unilateral legal act, And Forcing the other religions to their beliefs, Given the great interest to Shia.The pathology of this issue answers to many of the questions regarding the special rights of the religious minorities in Iran's legal system.

Hording is the imprisonment and keep the essential goods hoping to the higher price rates. Thereby- hording would lad to provide rights deterioration and injustice in the community therefore Islamic governor is obliged to prevent the abuses and oppress member of society to each other Because all society members have legal rights should be considered. To obtain rights of some individual, the rights of others must never be invaded. According to the Imam Khomeinis point of view private ownership is respected but once it is in contrary. To the individual and society rights, based on lazarar principle which is in opposite to the taslite principle; any ownership deteriorates others ownership is not respected not recognized. So Islamic governor exert Jurisprudential and legal like obligation to sale the hoarded goods pricing the goods and finally punishing the hoarders in order to prevent hording.

At the beginning of the juridical duration, the question which the Shia jurisprudents had been dealt with it, was limited to “whether a righteous treatment is sufficient for legitimation of a government, or the Immaculate Leader assignment or permission is strictly necessary for it.With the beginning of the religiousness reformation and incoming of the Industrial Revolution in Europe, and following it, political and social evolution and incoming new concepts and criteria for legitimation of the governments, such as existentialism and democracy, Moslems religious were encountered with a hard challenge:“What is the religion attitude with respect to these reformations?”In the religiousness colloquies, some deduced these concepts as opposite to the “Vellayet theory” and Law Giver assignment and sentenced them to be illegitimate and hence, labeled the systems based on these bases as injustice governments.On the other hand, some jurisprudents tried to remove the oppositeness between these concepts and religiousness learning by getting different deductions of the religion, and at least, to recognize them.More of this, some claimed to deduction of just these bases from religiousness literature, and sentenced them to be legal.But the theory of Ayato-Allah Mahdy Haery, “the proxy of governors from the people”, closes the way of existence of oppositeness between knowledge and religion at first, by declaration of a reasoning which uses both citation sources and intellectual rules, (by illumination of the limit of the inspiration influence in this domain).Also Allame Tabatabai denies the dominance of everybody on the people fate, using the Koran Mohkamat reasoning such as nature.