فصلنامه پژوهش های فقه و حقوق اسلامی
سال شانزدهم شماره 3 (پیاپی 60، تابستان 1399)

Famous Imamiyeh jurisprudents have considered the existence of the "father-childhood" relationship as an exemption from a number of punishments and they believe that the father who accuses his child will not be punished.On the other hand, they do not regard the "mother-child" relationship as a factor in the exemption from punishment and they believe in the enforcement of the punishment of the mother if they prove the accusation. This dual assumption is reflected in Articles 259 and 260 of the Islamic Penal Code. It is well known that the existence of such discrimination in the field of criminal law requires that we re-examine the religious grounds and it helps in finding answers to some of the challenges in the problem. Therefore, the present study, considering the importance of the discussion, in a descriptive-analytical inquiry and with a problem-centered approach, has examined the opinions of jurisprudents and with the critical-analytical readings of their views has strengthened the possibility of treating of the mother like father in the exemption from the Had Qazf.The abolition of the characteristic of paternity-child relationship, the reference to the ruler's taste and the purpose of the Shari'a, the analysis of the problem in the light of the rule of justice, as well as the rule of Dara al-Hadh constitute part of the freelance writer's evidence.

After the revision of the Constitution of the Islamic Republic of Iran, for the first time, the issue of "resignation of the leader" from the position of Velayat-e-Faqih was forseen in article 111 of the Constitution. In the overall assessment and analysis of the constitution, it becomes clear that the withdrawal is meant to be the same as the so-called resignation which must be approved by the Assembly of Leadership Experts. However, the lack of anticipation of the mechanism for the resignation of the Supreme Leader, authority for its acceptance and its quorum in the Constitution and the internal regulations of the Assembly of Leadership Experts is a source of criticism. From the point of view of Imamiyyah jurists, leadership (velayah) is one of the categories of decrees, so it cannot be revoked and handed over and it is not possible for the ruler to resign. On the other hand, acceptance and continuation of the position of Velayat-e-Faqih is a religious duty. If the position of Velayat-e-Amr is determined in a single and specific person, the obligation of Velayat-e-Amr will be an imperative obligation and he can not refrain from continuing it. However, if there are numerous people who are qualified and leadership is not exclusively assigned to a specific person, and the resignation of the leader does not have a corrupt consequence in the maintaining of the system and is not against the interests of the Islamic society, after the approval of the Assembly of Leadership Experts, resignation of the leader is possible. A governmental study of the life of Imam Ali (PBUH) also shows that in the most difficult circumstances, as a divine duty, he was in charge of the Islamic society with strength, submission and leadership, and the doubt in his resignation from the government after the third caliph is lacking in prestige. There is no consensus among Sunnis on the permission and posibility of the caliph's resignation, but generally the permission to resign has not been accepted in the first place, and it is generally held that the resignation of the caliph is not permissible if there is no one to replace him. The caliph is restricted even among Sunnis.

Within the past decade, cryptocurrencies, including Bitcoin, have been among the resultants of information technology development in the international and even internal financial system which have had benefits such as the expansion of international currency exchanges and cheeping against challenges like increase in a number of crimes like money laundering and violations of financial and economic order of the countries. From the individual jurisprudence point of view, the cryptocurrencies are considered as a kind of property and their transactions are not usorious and uncertain (Gharar); therefore, if the trading base of cryptocurrencies is correct from the jurisprudential point of view, the exchange of cryptocurrencies is permissible in legal terms. But if the trade base of cryptocurrencies is not legitimate, their trade is void and forbidden. From the point of view of governmental jurisprudence, however, the status of cryptocurrencies exchanges is different.  In accordance with no harm, respect, government system maintannace, action (Iqdam), and justice principles, all of which prevent the implementation of inappropriate monetary policies and the excessive increase in the amount of money in the Islamic economic system, it is essential that their trading is prevented until a legal system for the control of cryptocurrencies have been created by the government in the economy of the country.

During the history, many of endowed properties have been abused by tyrant rulers; In order to maintain endowments and pursue the goals of fair-minded endowers, Imami’s jurists have attempted to maintain such rights by appointing trustee, supervisor or property guard. The words “trustee” and “supervisor” are sometimes used interchangeably, but some of modern jurists believe that they are different concepts. The objective of the present study, which has been done in descriptive and analytic method, is to answer the question if the supervisor can be dismissed or not. It is assumed that if the betrayal or inability of the supervisor is proved, he can be dismissed. Dismissal is carried out in three ways: by the endower, by the religious ruler or by the supervisor himself (relinquishment). There are some discrepancies about the permission of supervisor dismissal. The result of this study demonstrates that such discrepancy is caused by two reasons: 1. there are discrepancies whether the supervisor is an agent (Wakil) or administrator (Wasi); 2. the condition of supervisor dismissal during the endowment contract is a necessary condition showing obligatory action on that. If supervision of the endowment is a result of covenant’s will, and if the supervisor has accepted the the supervision while the endower is alive, the supervisor cannot relinquish till the endower is alive; but after his death, he can withdraw his supervision. Therefore, sometimes the supervisor is an agent and sometimes an administrator.

Because mental disorders do not simply mean madness and they have a general meaning which encompasses insanity and because many studies have been performed about the madness of wife, but other mental disorders of wife and her right were not investigated so much, this study undertakes to examine one of the important rights of wife which is entitlement to dowry in relation to the psychiatric disorders of the wife. The results show that the type of mental disorder has no impact on the entitlement or lack of entitlement to the dowry. But what is important in this regard is the husband's knowledge about the development of disorder in the wife, that is, in case of the ignorance of the husband about the mental disorder of the wife and with the realization of the right of misrepresentation for the husband, he is entitled to termination right because of misrepresentation. In this case, the kind of mental disorder of the wife only plays a role in determining the amount of damage that husband can claim from the one who misrepresented.

Ibn Idris was the only jurist of the sixth century who was able to pave the way for the presentation of new ideas and the evolution of Shiite jurisprudence by criticizing the views of his predecessors, especially Sheikh Tusi, and in the field of ijtihad and jurisprudence he chose principles that gave his jurisprudence a special character. The book Al-Sara'ir Al-Hawi li-Tahrir al-Fatawi contains his fatwas and jurisprudential theories, some of which are notorious and contrary to the famous theories, but some of which are his own. Since the purpose of this study is to investigate the basics of and reasons behind Ibn Idris's differing opinions, examples of these views such as prayer in two suspicious clothes, vague confession, execution of the permissible limit, etc. have been explored. The descriptive-analytical method explains the basics, documents and their cause. Belief in the unreliability of the individualized hadith is one of the most important  principles of Ibn Idris, which on the one hand, due to his principles and on the other hand in terms of the temporal dimension of the evidence, has caused the actions of the people before him to be hidden from his vision. This has led to a lack of reliance on a large part of the hadiths of the infallibles, and as a result, the individuality and rarity of his views

Due to the special circumstances of the conjoined twins, in many cases, the punishment of each of them will have an effect on the other. In case of the innocence of one of the twins or difference in their crime, this will result in the harm to the innocent person. Therefore, one of the most basic conditions in the legitimacy of the punishment of these types of people is to prevent the effect of punishment on the other person who is not involved. In this regard, the separation is one of the ways to provide the possibility of punishment for them. An issue that needs to be addressed is the legitimacy or illegitimacy of the requirement to separate in the event of dissatisfaction of the other twin. The present study examines this issue in a descriptive-analytical manner. The findings of the study indicate that, first of all, the obligation to separate in order to enforce hadd, on the presumption of non-repentance or repetition of a crime by the offender, is legitimate. Second, in individual law, the legitimacy of the obligation to separate depends on the non-infliction of a substantial loss to the person. Thirdly, in public law, according to the priority of public interest over individual interest, the obligation to separate is legitimate. Fourth, in some cases, in connection with a conjoined twin, death during surgery replaces the death penalty.

Heba (exceptional gift of an estate belonging to the first-born male) is one of the individualized issues of Shi'a jurisprudence. The Holy book, ring, sword, and clothes of the deceased are of the examples of Hebas that are freely and out of obligation given to the oldest consanguine male child. In order for Heba to be transferred, four conditions must be met: lack of monopoly of heirloom to Hebas, Lack of debt in the heirloom, no will for premises of Hebas, not considering the heritage of the oldest boy. The relation of the oldest boy to the Hebas is as ownership. Therefore, it is obligatory for the heirs to pass the ownership of Heba to the oldest boy. The ownership of Heba is forcible and does not need the acceptance of the oldest boy. The civil law has concidered Heba in article 915. This article has many ambiguities about Heba and proper response should be provided with a consideration of jurisprudence in correspondence to time. The present research pursues the same objective.

In the issue of the replacement of presumptive evidence (amarat) and principle with types of certitude (qate), two arguments are put forward:  the first argument is that what kinds of qate these are replaced with. The second is that wether the use of preumptive evidence and principles in place of certitude by men of reason denotes its replacement with certitude. As for the first argument, the fundamentalists expressed different points of view and each has their own reasons and adherents. Out of these, Imam Khomeini believes that presumptive evidence and principles only take the place of the incomplete certitude to the situation, not the complete certitude to the situation, or incomplete or complete descriptive sitution, or the pure situation certitude. As for the second issue, the well-known fundamentalists believe that the presumptive evidence and principles are used as the replacement of certitude, and in case of lack of certitude, men of reason definitely use presumptive evidence and principle in place of certitude on a regular basis. On the contrary, Imam Khomeini believes that the argument for the replacement of presumptive evidence with certitude is basically inaccurate and men of reason have acted upon certitude in its presence and in its absence and the presence of reasonable sign, they act upon that sign and evidence without concern for its replacement or downgrading (tanzil). That is because, from the point of view of Imam Khomeini, validity of the rational presumptive sign does not depend on the validity and reliability of presumptive evidence and complementary aspect of revealing reality, but rather has an independent validity. Based on this, we should not look for legal rendering as complementing the disclosure to the presumptive evidence, to act upon certitude. This study used a descriptive-analytical approach and library resources to examine different opinions and their evidence and emphasize the accuracy of Imam Khomeini's opinion.