نشریه مطالعات فقه اسلامی و مبانی حقوق
پیاپی 41 (بهار و تابستان 1399)

Criminal mediation, as one of the manifestations of restorative justice, is a three-way process that begins based on the prior agreement of the victim and the offender with the presence of a third party named mediator in order to resolve disputes and issues arising from the crime. This process may be presented in three forms: customary, voluntary or formal mediation. The transition from a criminal policy based on criminalization and maximum punishment to alternative methods such as mediation will both reduce criminal inflation and provide the basis for repairing the broken tissues of society. Therefore, the present study intends to use a descriptive- analytic method to answer the question that which group of religious crimes can be referred to mediation based on jurisprudential principles. The conclusion is that all the Hadds </em>(fixed religious punishments) and  T’azirs</em> (unfixed punishments) related to rights of people as well as retaliation can be mediated with the plaintiff, so the reasons for prohibiting intercession within the Hadds</em> do not include the Hadds</em> related to the rights of people. On the other hand, mediation with the ruler, which is also called Shafa’ah</em> (intercession) can be applied only in crimes against God and when the accused has repented and the evidence has not yet been presented to the judge. Intercession is also possible in all cases where the judge has the power to pardon. Therefore, the legislative’s position in confining mediation to sixth to eighth degree T’azir</em> offenses has no sufficient justification.

Managers' knowledge of the Company's confidential business information allows them to illegally increase their assets by selling the information without permission and provide a more limited opportunity for the business to seize opportunities and acquire wealth. Therefore, the present study seeks to examine how the rights of the company in the above mentioned assumption are realized and to explain the position of the jurisprudential and statutory law system towards that wealth. The present study, which has been carried out in a descriptive, analytical method and by studying and investigating the opinions of Imamiah</em> jurists and Iranian lawyers, shows that there is a jurisprudential disagreement regarding the recognition of patents, which can be part of confidential commercial information. Also, lawyers do not agree on the sale of company information without permission; some, under the influence of foreign law, have recommended the return of acquired wealth. Another spectrum seeks to realize the right through the rule of “loss”. Confidential commercial information is considered property due to the use of three features: usefulness, possessability and economic value, therefore, if the information is sold without permission, it will be ineffective and if it is enforced, the refund will be acceptable. Provided, however, that the information is within the competence of the company and belongs to it. Also, in case of rejection, the buyer's awareness of the information is considered as a defect and loss

The title “Baghi</em>” (rebel) refers to a group that has departed from the obedience of the Infallible Imam in its specific sense or the ruler of the Islamic society in the general sense. The permission of the armed uprising against such people, which is ordered by the ruler of the Islamic society, is found in the opinions of most jurists according to the ninth Verse of Surah Al-Hujurat</em>, and no dissenting opinion is seen in this regard, but the holy shari'ah</em>, before carrying out any repressive operations, considered the guidance of the rebels obligatory. Today, with social and cultural changes, it is necessary for guidance to be reflected in a new and organized way. In the present study, while examining the history f the way of dealing with the rebels by the Prophet (PBUH) and the infallible Imams (AS), the reasons for the necessity of guidance of the ignorant have been studied in detail, as well as the methods of guidance and its levels. The results of this study have shown that creating suitable organizations for the guidance of the rebels and institutionalizing it is one of the necessities of the Islamic society that the lack of such a structure and a coherent hierarchy in the field of guidance of the rebels can have the opposite effect, and also by filling legal lacunas in this regard, the persuasive and reasoning power of the Islamic government can be proved for everyone

In Articles 234 and 235 of the Civil Code, the condition of attribute regarding the quantity and quality of the “subject of transaction” has been stated and the right of dissolution has been determined as its sanction. The legislator has paid attention to the condition of attribute only in relation to the subject of the transaction and has remained silent about this condition in relation to the parties to the contract in the contract of sale and its sanction and the Imamiah </em>jurisprudence also has not discussed this issue separately. However, according to jurisprudential and legal principles, including some verses of the Holy Quran and the rules of “contracts follow intentions” and “believers are committed to their conditions”, the concept of unity of criteria, the abolition of specificity of the condition of attribute in the parties to the marriage, the principle of sovereignty of intention and contractual freedom and freedom used of Articles 10, 201, 235 and 1128 of the Civil Code this issue can be examined and concluded that if the condition of attribute in the parties to the contract in the contract of sale is an agreement clause, violation of it will invalidate the contract and if it has a minor aspect, the violation will result in the right of dissolution and if the above-mentioned attribute has only the title of motive in concluding the contract and does not explicitly or implicitly enter into the scope of agreement of the parties to the contract, it is correct.

The principle of legality of crimes and punishments has been called the most important principle of criminal law. This principle, which requires a precise definition of the crimes and determining their sanctions in law, has various effects, the most important of which is the protection of citizens' rights and freedoms against the rule of law and judicial tyranny. Therefore, the legislature is expected to meet the requirements of this principle throughout the criminal laws. The generalization of Article 43 of the Islamic Penal Code (1370) in expressing the punishment of the aider in a crime was contrary to the mentioned principle, and although by enacting the Article 726 of Chapter of T’azirs</em> in 1375 and determining the minimum punishment of the crime for the abettor, this generalization was reduced to some extent, the problem of determining the punishment of the abettor and its inconsistency with the principle of legality remained to a large extent. After three decades of experience in Islamic legislation in the field of criminal law, the legislator, by stating the principle of legality in Article 12 of the Islamic Penal Code (1392), in Article 127 has tried to legalize the punishment of abetting in crime by avoiding generalization. However, the preference of the Sharia over the law and the lack of determination of the relationship between Article 127 and the special articles of abetting in crime can lead to disharmony of judicial decisions, which itself requires amending the law or issuing a uniting verdict in line with the principle of legality and non-discrimination

Interrogation investigations are foreseen in most legal systems. However, in the Iranian judiciary, the allocation of specific religious evidence to prove crimes punishable by had</em> (fixed punishments) and retaliation, as well as the principle of the need to provide religious evidences in front of the ruler has formed a kind of confrontation of jurisprudential rules with legal regulations and imposed it on the preliminary investigation body of the court. Due to the issues related to the ruling of the judge, the process of the preliminary investigation of the investigator in the face of the religious evidences of Hadds </em>and retaliation has been severely overshadowed by this issue. The practical attitudes of the courts in dealing with this issue have always been different, and as a result, there is a constant fear of violating the rights of plaintiffs and defendants, and it is necessary to have a unified solution in this regard. The present article tries to provide practical solutions to solve this issue.

The theory of negation of Gharar</em> (deception) is cited in transactions so that it can be said that the denial of deception is one of the characteristics of legitimate transactions. The principle of the need to eliminate ignorance and deception from the subject of transaction is one of the most important jurisprudential issues and legal principles, so the lawyers have addressed this principle in discussions related to the general rules of contracts and interpretation of the Civil Code. Deceptive transactions are void in the Civil Code except in exceptional cases and the same is true of civil law. In statutory law, there are contracts, such as insurance contracts, which have been referred to as deceptive and have found their way to Islamic jurisprudence, which has been accepted by many jurists, but some others have doubted in them due to that deception. In this research, by a descriptive-analytical method the semantic sense of Gharar</em>, deceptive transactions in jurisprudence and civil laws of Iran, the criteria and extent of removing ignorance, ambiguity and deception from the attributes and subject of transaction, comparison of Gharar</em> with similar concepts and its basics have been studied. The purpose of this article is to explain how to determine the obligation and the need to eliminate ignorance and deception.

Hymenoplasty (restoration of virginity), although in itself is not forbidden from the jurisprudential point of view, but its use is acceptable only to a limited extent due to improper preliminaries and incidentals and leading to corruptions such as mixing of parentages, etc. In many cases, including the prohibition of hymenoplasty with the intention of falsifying and concealing past truths, there is a consensus, and in some cases, such as the case where the lack of virginity is due to voluntary adultery, but the perpetrator is not well-known to commit adultery, if she has not repented Hymenoplasty is forbidden according to the Ahl al-Sunnah</em>, while in the view of Shiite jurisprudence, if the lack of virginity is due to the desire to commit adultery and insistence on it, hymenoplasty is forbidden for her, which indicates two different views on the permission or impermissibility of hymenoplasty. The reason for the divergence of opinions in this regard can be considered as citing a group of jurisprudential rules such as Osr </em>and Haraj</em> (hardship), urgency and no harm. This study suggests that hymenoplasty is not strictly prohibited, but is conditionally permitted.

According to Article 266 of the Islamic Penal Code (adopted in 1392), non-Muslims are sentenced to eighty lashes if they use intoxicants publicly. The legislator has been silent about defining and explaining the concept of “publicly” as well as explicitly explaining the circumstances of its occurrence, so the fundamental question arises that the use of intoxications by non-Muslims how should be perpetrated or what characteristics should it have to say him have publicly used it? Judgments from the judiciary suggest that in order to commit this crime, non-Muslims must commit drunkenness in public and in a place that is open to the public without scrutiny. This must also be done notoriously. In addition, non-Muslim’s behavior must be seen by others. It should be noted that the viewer of the perpetrator must always be a Muslim who maintains the forbidenness of intoxicants; therefore, publicly using intoxications will not take place in front of other non-Muslims, even if intoxicants are forbidden in their religion or in front of a Muslim who is consuming intoxicants himself. This research has been written using descriptive and analytical methods and with the approach of documentary studies.

Testimony as one of the proofs of litigation is one of the most important and widely used issues in Islamic jurisprudence and law, the terms and conditions of which have been well expressed by the jurists and Mujtahids </em>of the Islamic Ummah</em>. One of the main and controversial issues in this regard is the condition of legitimacy of birth, which the famous Imami</em> jurists and consequently the Iranian law has considered it as a condition for witness, so they do not accept the testimony of the adulterate absolutely; However, Shahid Thani</em> and Sheikh Tusi</em>, among the great Imami </em>jurists and the majority of Sunni jurists, do not consider lawfulness of birth as a condition and believe in accepting the testimony of the adulterate in all civil and criminal matters. Malikis </em>does not allow the testimony of the adulterate on the adultery of another person, and Sheikh Tusi</em>, in another view, has accepted the testimony of the adulterate only in minor matters. The present study, which has been done by descriptive and analytical method, shows that the view of absolutely accepting the testimony of the adulterate is more convincing due to the generality and absoluteness of the reasons of testimony and its non-dedication or restriction and also according to the verse of “Wizr</em>”. As a result, the testimony of the adulterate will be acceptable.

The requirements of the planning system and design of land uses in urban planning can be subject to jurisprudential rules and regulations. Since the field of urban planning is large and requires extensive research, only the field of use, i.e. determining how to use land in the field of residential use has been addressed in this research. In this regard, in addition to benefiting from the verses of the Qur'an, the narrations and tradition of the Holy Prophet of Islam (PBUH) and the Ahl al-Bayt (AS) have also been used. The present article tries to answer the question whether jurisprudential rules have an impact on urban planning in terms of residential use planning? The amount and location of residential use in terms of compatibility and dependence and capacity can be formed under the influence of jurisprudential rules. Also, adaptation to the social characteristics of the urban space to be increased, and accordingly, the level of social interactions that results from the religious beliefs of the citizens to be improved. In a city that is established according to the rules of jurisprudence, creating a correct attitude and a new approach to urban planning is achieved, as well as the development and publication of urban laws according to the instructions of the religion of Islam. In that case, the citizens can easily perform their duties and avoid the prohibitions

Although there is a wide and detailed discussion about determination of marriage portion and its quality in the jurisprudential and legal sources of the country, but in some cases, the legal precedent, by ignoring the existing sources, has followed the custom, which has led to results contrary to the legal principles. Accepting the condition of giving possession of future housing and creating an obligation in favor of a third party as the marriage portion, as well as the condition of “claiming if the couple can afford it” are examples of this discrepancy and indicate judges' disregard for rich jurisprudential sources. It seems that the source of this problem is the lack of clarification of the nature of marriage portion in the legal system of the country, which some have considered as a condition in the contract and some believe that it is an element of marriage. Each of these approaches plays a decisive role in the possibility of creating an obligation in favor of a third party, giving possession of future housing, or determining a right as a marriage portion. The author believes that the marriage portion under the titles of determined marriage portion and customary marriage portion is one of the financial and legal consequences of marriage on the husband, the amount of which may be changed as a determined marriage portion, with the consent of both parties, in the form of an ownership and exchange contract within marriage. In the case of being the determined marriage portion of an exchange nature, determining it by a third party or in his favor will not be correct. In addition, the possessive nature of this type of marriage portion causes the determination of a right as a marriage portion, the insertion of the condition of future housing, as well as the insertion of the condition of the marriage portion in the form of conditional on ability to be doubtable.