نشریه مبانی فقهی حقوق اسلامی
سال سوم شماره 2 (پیاپی 6، پاییز و زمستان 1389)

right is in common with an effect like authority whether we tell thatright is the same possession or not. And the authority of propertiesin rights is enough to decide that any disposal in the human’s rightproperties ,without taking a permission of its owner,isnotlegitimate. And the spiritual right which don’t exist as concreteobjects in reality of the world and one cannot be possessive of it.but rather it is a kind of intellectual and customary abstractions thatwe can prove it that both could be a cost in a sale even if we doubtin its judgment of legitimacy or non-legitimacy.we can ,on the lawof legitimacy of transfer ,say that the transfer is in the case.The conclusion is: first the owner of right has a kind of authorityaccording to right which belongs to him. And nobody can act on itwithout his permission. For instance without the permission of itsowner nobody have right to publish one’sroyaltyand his scientifictheories or copy a cd secondly the contract of rights in the way ofsale like other contracts are legitimate.

Discussion about the nature of religious rule is from imaginarymanners of principles Knowledge . Differences of attitudesabout the nature of religious rule affect basic orientations indifferent discussions of principles Knowledge .There are tow important attitudes about rule definition amongprinciples scholars . Some believe rule is a falsified andconventional thing that does not have instance in the realworld and others believe it is a real and incipient thing . Ruledefinition according to principles scholars contain one ofintroductions and different stage of the rule including interestsand mischiefs , creation , volition , legality and accosting .In contrast to some scholars who consider religious rule as areal thing , Imam Khomeini considers rule as a conventionalthing and religious forgery that has just tow degrees ofcreation and reality . He has not accepted the definition of therule in terms of volition , interests and mischiefs and hebelieves these real thing are the introductions of the rule . Hehas refused the division of the volition within religious andincipient volition . He believes the volition of lawgiver aboutreligious things belongs to the fabrication of the law not todoing duty by obligated people . In this thesis , differentdefinitions of the rule and some famous attitudes about thenature of the creation and convention have been investigatedand the attitude of Imam Khomeini about religious rule hasbeen compared with other definitions .Four fold degrees of religious rule have been criticized andfinally , the results of the discussion have been offered .

According to the Islam law, after the age of discernment, theimplement of the corrigible and correctional imaginations becomespossible. According to famous view of Emami jurisprudences, girlsfrom 9 years old and boys from 15years old and with 6 yearsdifference enter in to criminal responsibility and they are consideredas mature persons (adolescents). In this article, this view is going tobe compared with the customary law and the origin of justice.

This articles, regarding to religiously opinions and studingIraninand English law, apropratied to study of the necesity acquire relaseof pationt in order to eliminate of civil responsibility of a doctor.This articles is writen in tow parts. First part of this articlesaproprated to necesity or non necesity acquire release of pationt inorder to eliminate of civil responsibility of a doctor and secondparts aproprtated to conditions of effectivityrelase or consent ofpationt. In this articles, the resercher is concluded that the consentof pationt is enough in order to eliminate of civil responsibility of adoctor. In the other word, in order to eliminate of civilresponsibility of a doctor about injuries of pationt is not necesery toacquire release of pationt.

The discussion of silence of law maker has deeply connected to thesubject of sources of orderes inference. If we regard the reason andmethods of rationalists as a orderes source , we can not claim thatthere are all orderes , generally and particularly , in Quran andTradition (sunah) , but we see that in addition to holy scripture andtradition, The reason is regarded not only as a instrument of holyscripture and tradition understanding , but also as a sourse of issuingorderes that human societies need them. This thesis can provide thesituation for dialog and harmony of science and religion. If oneregard holy scripture and tradition as a only valid source of ordersinference and on the other hand claims that the religion can satisfyall needs and demands of humanity and that Islam is final religion,Then he will deny the silence of law maker and believes that allmatters and subjects have their own canonical orders. There aredifferent views concerning this matter. A group believe theinclusivness and self-sufficiency of holy scripture and tradition insatisfiny of all humanity needs and demands. And another grouphas not accepted such a inclusiveness and self-sufficiency. Thirdgroup has accepted middle and moderate view. We claim in thisessay that the third view namely middle view is closer to the truth.

Impossibility of performance is one of the long accepted contractualexcuses for non performance of contract in the Iranian law .Thementioned excuse is also admitted in Feq called"Taazor".In this article the author has endeavoured to elaborate theirmeanings, conditions and effects in order to recognize thedifferences between these two theories presented in the iranian lawand feq.

The present article analyzes the issue of removing organs frombrain dead patients as a matter of fact and as a matter of law. Givingdefinitions of life and death, it clarifies the position of brain deadpatients. Referring to the above mentioned definitions, traditions ofthe infallibles, and jurisprudents views, this article concludes thatsuch a patient is a living human being whose removal of organs arenot allowed. The criticism of the arguments of those allowing organtransplantation in brain dead patients is another part of the articlesupporting the hypothesis of the article.