پژوهش نامه فقه اجتماعی
پیاپی 16 (بهار و تابستان 1399)

Money creation is naturally one of the Effects of the conventional banking system. Is the creation of money by the Islamic banking system legitimate in the Islamic economy? In today's economy, the share of bank money in the whole of the money in circulation is a novel and well-considered subject. Hearing the fact that most of the money is in the creaking economy of the banking system and not the central bank is probably shocking and perhaps unbelievable to the general public. In this study, the nature of money creation is explained first, and its types include money creation by the central bank, commercial banks and the people. Then the consequences and the potential positive and negative economic consequences of it are mentioned. Investigating the creation of money from an Islamic perspective begins with a review of Islamic scholars on the subject, and then it is referred to as the Ghasb and the rules of La’Zarar, akule mal br batel, ehteram male muslim, Etlaf and Eghdam. It seems that the very nature of money creation in the banking system is not Ghasb and seems to be impossibly general rules, although it can have positive effects, such as double-edged razor, and if it is accompanied by inadequate conditions, structure, regulation and supervision. As a result, money creation must be accompanied by sound policymaking, regulation and Supervision. Islamic economics guidelines, including the criteria for »Hagh«, »Ghavam«, »Omran« and »Kanz«, outline the criteria for authorizing money creation.

Despite the consensus of all Muslims on the finality, universality and eternity of Islamic law, in practice the fundamental question arises that if the real interests and corruptions change over time, is it possible to change the Islamic rules? In response to this important question, the present study, in order to refute the place of conflict, first examines the purpose of change and the types and examples of rulings in Imami jurisprudence, then examines the views and strategies of Imami jurists on the possibility of changing Islamic rules and reaches this conclusion According to them, some of the Islamic rulings, such as signed rulings, governmental, judicial rulings, non-enforceable rulings, harmful rulings and rulings issued as a personal matter, can be changed temporarily or permanently, and the mujtahid or Islamic ruler in order to implement the rulings. Islam, with the needs and requirements of the present age, can change such rulings, without this change of ruling being subject to topics such as abrogation, ijtihad against the text or heresy.

Because legal doctrine and jurisprudence have described the right to imprisonment as a guarantee tool to prevent breaches of contractual obligations (the same as the performance of the same obligation), the correct recognition of this right is doubly important. In jurisprudence and consequently in law among jurists and jurists, there is a well-known theory about the right to imprisonment, according to which an initial inherent right has been accepted for its holder. Article 377 of the Civil Code of Iran is also regulated accordingly. According to this idea, the parties to the exchange contract (both testamentary and possessive) enjoy the right to imprisonment independently and at the same time and simultaneously, on the basis of which they can refuse to fulfill their obligations. But another reading can be proposed, according to which this right is presented as a "defense and objection" for a person who fulfills his obligations against someone who has violated his obligations. The result of this research is that the second inference is correct and the first inference has several drawbacks, including the fact that if we consider the right to imprisonment as the primary inherent right, by adapting the principles and conditions of the rule of "fraud against the law" on It can be an example of a "rule of law fraud" in its general sense, as it creates the possibility for individuals to use it as a tool to achieve their fraudulent goals and motives. This is also denied by the rational rule of "violation of purpose" because an act that involves violation of purpose is not approved by law.

Law is a modern concept that has developed under the relation and requirements of the modern world, and in relation to this world, it has special categories that become meaningful under these categories and contexts. This concept, like other modern concepts and institutions, entered the field of Iranian thought due to the familiarity of Iranian thought with the manifestations of the modern West. In other words, the rationality of the Iranian intellectuals in searching for the causes of Iran's backwardness and the development of Western societies in the late Qajar era came to the conclusion that the causes of the development of Western societies depend only on the existence of "law" in these societies and therefore in the position of reproduction and discourse. The construction of this concept emerged in Iranian society. On the other hand, the traditional world of Iranian society is tied to a rationality in which the legislative will of God is the main axis and element of its culture, civilization and rule. Therefore, the intellectuals of the constitutional era in the design and discourse of this concept in Iran, given the Shiite ideology of the ruling Iranian society had no choice but to evaluate the relationship of this concept with Islamic law. By examining the views expressed, these views can be based on their views on the relationship between jurisprudence and law in the three main categories of believers in the relationship of "similarity between law and sharia", believers in "conflict between law and sharia" and believers in "cooperation and "Completion of Sharia by law." Each of the mentioned approaches has significant representatives that this research has tried to analyze and critique their opinions in a descriptive-analytical way.

In contractual obligations, if the obligor refuses to fulfill his obligations, the jurists have provided performance guarantees to him in order to protect the obligee's rights, so that by relying on them, he can achieve the desired of his contract. Compulsory execution of the same obligation and the right of termination are the two guarantees of non-fulfillment of obligations in the words of the jurists. When the obligor does not fulfill his contractual obligations, the obligor can oblige the obligor to fulfill his contractual obligations as an executive guarantee, which is almost accepted by most jurists. In this case, there is also a guarantee of termination of the contract, which can be exercised by the obligor in this situation, with conditions. In the following article, we will address the issue of whether the obligee can still use the guarantee of the right of termination, assuming that it is possible to force the obligor to perform the same obligation, or whether the exercise of the right of termination is not possible. If it is possible to apply either of these two performance guarantees, is the obligee free to choose its preferred performance guarantee or not? In other words, is the relationship between the obligation to execute the same contract and the right of termination a longitudinal one, or is the relationship between the two a cross-sectional relationship and therefore a commitment to choose what is best for them?To answer this question, we will first examine the sayings of the jurists and then, by stating the documents and evidence, we will conclude that if the contractor does not fulfill the contractual obligations, the contractor in choosing one of the two guarantees of performance The former is a benefactor.

Debt sale is defined as the general ownership of a long-term liability in exchange for receiving a price. This type of sale has been considered by Muslim thinkers throughout the history of jurisprudence due to its special legal structure. . Although the invalidity of debt versus debt if it is before the conclusion of the debt is common to all Muslim jurists, but there is a difference between the jurisprudential sects on the issue of debt other than debt. Given the impact of this issue on the creation and development of the debt market, this difference in fatwas necessitates re-examination of the sayings and arguments of Imami and Sunni jurists. This article analyzes and examines this jurisprudential branch without considering the effects of the fatwa in the process of inferring the debt sale license - whether present or in arrears - with cash - to the debtor or non-debtor, in equal amounts or less - with conditions.

In the credit reading of knowing the Shari'a sermons, we may consider the credits as literary or legal. In the first type, what exists is the offspring of the mind, which can change according to the societies and cultures that govern them. Legal validity, unlike the first type, does not only seek to influence the emotions of the audience, but also the origin of its identity in society and external realities. Legal validity, however, is rooted in literary validity, and in this legal discourse, the shari'a's rhetoric is like the rules laid down in the profession of rational legislation. Now the knowledge of principles can find a new formulation and division with the focus on legal validity and a logical and methodical course. According to this new division, there will be an opportunity to raise legal issues in jurisprudence and its interaction with other fields, contrary to the common structure, which seems incoherent and inattentive to the legality of rulings.

The allocation of resources in banks is sometimes done through partnership agreements, in which the bank, as the owner or partner of the investor, must take on the risks of economic activity. On the other hand, the bank faces the risk of default and delay in the return of facilities at the due dates, so in order to guarantee capital and peace of mind regarding the return of resources at the due dates, the contract provides the facility with the condition of operating guarantee. For reasons such as opposition to the requirements of the contract and opposition to the Shari'a, it is void. The present study, with a descriptive and analytical method, has explored the jurisprudential challenge of capital guarantee in the banking system and while examining the roots, has examined alternative solutions. According to the author, the current approach to securing capital in the banking system is facing a serious jurisprudential challenge, and efforts to overcome this jurisprudential dilemma have not been successful and in practice have not been effective and have not prevented the increase in non-current receivables. The root of the argument is the lack of accreditation and supervision in the process of providing facilities, which is in fact a kind of expertise in recognizing trust in partnership and trust contracts, and among the solutions, facility insurance at the expense of the bank is less challenging than other solutions.

Although the process of pricing goods and services is an economic process, but the components involved in it are in a way that necessitates the discussion of jurisprudential issues and dimensions. There are significant challenges in pricing; For example, are the government and the decision-making institutions and the Islamic government allowed interfering in pricing or not? What are the general pricing lines in Imami jurisprudence? Do risk and passage of time affect the pricing of goods and services or not? These are fundamental questions in the field of pricing that this study has sought to answer these questions and its findings are that in principle, governments are allowed to intervene. They do not have pricing except in cases of emergency, famine and hoarding. Pricing in Imami jurisprudence is subject to two models of economic justice and economic security. Regarding the impact of risk and time, it should be noted that the risk of production and sales will not have an effect on price increases, but time will be effective.

Fighting corruption is one of the most basic demands of the people for governance. In this regard, the issue of detecting and preventing corruption is important and is largely related to social, cultural and ... necessities. Although the common view among policymakers is a tendency to focus on oversight. However, the impossibility of the presence of inspectors in all situations that require supervision has made this method ineffective. In other legal systems, including the United States, there is a literature called "whistle-blowing" in which public observers hear the voice of a deviant organization and are rewarded in return. Therefore, the issue of whistling has become one of the main strategies of legislation and policy-making. The findings showed that despite the fact that the legislature in Iran uses this tool. However, a coherent literature has not been formed in this regard and in some cases, by introducing women's whistles as informants, it has caused a general reluctance to do so. In this article, in which the method of inference is analytical-descriptive, the principles of legitimacy and the nature of whistling in Imami jurisprudence, Iranian law, and with a brief look at the United States are examined.

Shari'a cases have been considered by scholars of the principles of jurisprudence from different perspectives. One of these qualities is the addressee and the subject that this address has addressed to him. According to the popular view, any address that addresses a general issue such as "people" or "those who believe" is dissolved according to the number of people to whom this title applies, and this general address is in its infinite personal power. Imam Khomeini did not accept this analysis and rejected it with regard to the way legislative councils legislate. In this way, he believes that the general and legal address remains at the same level of generality and is not dissolved into personal speeches. This view has many effects on the principles and jurisprudence. In this article, we have analyzed the most important effects of this view on the jurisprudence of transactions.

In the Islamic legal system, "qisas" is the initial ruling for intentional crimes against individuals, and if there are special conditions, qisas against a person is proven. One of the conditions for proving the sentence of retribution is the "equality" between the victim and the victim in a series of aspects, the most important of which is "equality in religion". If the religion of the murderer is higher than the religion of the victim, retaliation against the murderer will not be proven and the sentence will be paid. This sentence has sub-clauses that are examined in this article. The history of this issue in the Iranian legal system dates back to after the revolution. In criminal law, this issue was mentioned only in a limited way, but the provisions of some cases and issues were not stated. In the Islamic Penal Code of 1392, provisions were issued in Articles (301) and (310) and some problems were partially resolved, but there is still a brief in some issues that can be filled by using the opinions of jurists, legal gaps.