مجله مطالعات فقه و حقوق اسلامی
پیاپی 23 (پاییز و زمستان 1399)

Although recognizing the jurisdiction of the revocation of regulation contrary to the law or the Sharia in article 170 for the Administrative Justice court, the effect of the revocation has some ambiguities. In the descriptive-analytical research has proved that Guardian Council’s views about extending the effect of revocation don't comply with legal and jurisprudential principles and even in some cases, Guardian Council has violated its foundations. On the other hand, however, since the enactment of article 20 of the Administrative Justice Court Act -2006-, emphasized on possibility of extending the effect of revocation at the time of ratification “to prevent violation of interests of individuals”, but, some factors like “passive performance of the Administrative Justice Court”, “knowing extending the effect of revocation to the past optional” and “limiting the Possibility of request the extending the effect of revocation to the past to the initial plaintiff” has prevented a proper procedure in this field. Therefore, in these cases, it is obligatory to the Administrative Justice Court to extend the effect of the revocation to the past actively and in certain cases, manipulate the effect of revocation. In cases of jurisprudential contradiction, the absolute extension of the effect of revocation to the past has unsuitable, effects, which should be manipulated in laws.

The Islamic Penal Code in the Article 198 provides that If the Recursion is made before the performance of punishments, it is resulted in its unreliability; Although the legislator has been silent about the responsibility of the witness who withdraws his evidence. However, not only the majority of jurists but also the dominant Fatwā from the Perspective of the legislator says that except of Hudud, the Recursion After the verdict do not cause its annulment.
The issue of the validity of the testimony that in criminal proceedings after the issuing of judgment, the witness withdraws his evidence is the subject of the present study. In addition The responsibility of the witness withdraws his evidence is also discussed.study of Jurisprudential Documents shows that the Recursion After the issuing of judgment, Even if it is carried out after the execution of the punishment, Both in cases involving prescribed / discretionary punishments and Retaliation / Penal Compensation, do cause the annulment of the verdict which is based on Testimony and thus if condemnation connected with property and the object like Penal Compensation remains as the same, it will be returned to the convicted person, and when restitution is not possible, as well as other injuries both physical and non-physical, The witness is responsible. In proportion to the role that the witness has in proving the Evidence, based to jurisprudential sources The manner of distribution of responsibility has also been specified in different situations.

The victim’s consent to commit a crime against himself/herself does not affect the criminal and civil liability of the offender. Because enforcing the laws and giving sentences are not to serve the individual's interests. Rather, it is for the establishment and maintenance of public order and the security of society. Therefore, due to the legal rules and legislation, victim’s satisfaction carries no legal value and validity and is not considered as a justified cause for the crime. In some cases, however, due to its benefits and social necessity and acceptance, and sometimes due to the character and nature of the crime committed, the legislator has regarded the victim's dissatisfaction as one of the essential elements that form the crime. Hence, with the victim’s consent, the criminal nature of the offense is altered, thereby it prevents the criminal and civil liability from being established. This article attempts to analyze and compare the impact of the victim's consent on criminal and civil liability for crimes against people, such as medical errors, etc. from the perspective of the legislative process and Islamic jurisdiction.

One of the common contracts in the Islamic banking system is the civil partnership contract adopted from voluntary trade partnership in Imamiah jurisprudence. According to Article 7 of civil partnership contract, taken from their participation in the Central Bank’s Civil partnership model, that was approved in 2013, the responsibility for managing the company's affairs is voluntarily (gratuitously) on the partner under the supervision of the bank and based on the agreed upon documents. As in voluntary trade partnership (properties partnership) and consequently, in the civil participation contract, the agent is entitled to be paid, gratuitousness of the bank partner agency in the civil partnership contract will question its legitimacy. Therefore, the investigation of the authenticity and legitimacy of such a condition of the above mentioned contract is of paramount importance. In the present research, which was conducted using descriptive analytical method, it was found that the gratuitous contract is contrary to the Islamic law and the nature of the contract. As a result, it is void and will turn the nature of the civil contract into a prohibited loan based on the religious norms.

In the Islamic Penal Code adopted in 2013, the legislator of the Islamic Republic of Iran considered the definition of the crime of the crime of moharebeh (waging war against God or people) to be conditional on being armed, while, on one hand, the definition of a vast number of jurists does not regard this condition and in the known definition, according to some Jurisprudence and useful evidences, are the dominant assurance and not the avoiding, and on the other, it is implied from jurisprudential documents that if the battle is realized, the mentioned condition is not expressed and in case of non-occurrence of the battle and in case of only deprivation of public security, mentioning this condition does not mean that it constitutes a part of the subject, but it means the expression of the predominant condition. The present study is conducted through a descriptive-analytical method by means of library data and is written aiming at criticizing the law for interfering the condition of being armed in the crime of battle and at the same time its thoroughness in terms of this condition.

Article 20 (1) of the Warsaw-Montreal Convention shall not be liable if the Air transport operator proves that his agents have taken "all necessary measures" to prevent  the harm or that such measures have not been possible for his agents. According to this Article, the operator has the right to full defense against any claim. Therefore, if it is proved that, operator has done "all necessary measures" it will not be responsible. It applies to injury, death and delay of passenger, as well as any damage or delay about cargo. On the other hand, in accordance with Article 21, "If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability." All defense which is mentioned at Art 21 and 22 are applicable and compatible in Jurisprudence. The author intends to explain this issue in this essay.

Most jurisprudential sources address misrepresentation or deception (Tadlis) in marriage contracts and elaborate on its instances. On the contrary, the Civil Code does not touch upon the option of deceit in the marriage contract and offers nothing in regards to its instances and effects. Therefore, this paper first examined. the jurisprudential and legal senses of misrepresentation, and then investigated the conditions and elements of misrepresentation. It was revealed that misrepresentation only requires external/objective elements (actus reus), not mental elements (mens rea). Afterward, a number of old and new instances of misrepresentation were examined considering modern developments in science. Some instances fell beyond and some fell within the scope of misrepresentation. In terms of misrepresentation effects, the effects were positive both during the engagement and when the marriage contract is signed, and the party committing misrepresentation assumes criminal liabilities as well as civil ones.

The majority of Shiʿite scholars believe to the conditionality of repentance after confession to the Imam's authorization to perform hadd or forgive it. However, Ayatollah Khoei's opinion is contrary to the Majority’s view and he perceives the unconditionality of repentance after confession to the Imam authorization to perform Hadd or forgive it. Famouse jurists’reasons in this regard are consensus and some narrations that the survey of narrations shows that in addition to the weak document of some of them, some of them and some cannot prove the claim and even in some narrations there is no discussion about the conditionality of repentance.  Consensus is also questionable, despite opposite view on the issue. On the other hand, for opposite view, there is no reason or document other than the absolute and non-restriction of the reasons. hence, finally, by examining the reasons of the parties, it seems that the view of unconditionality of repentance is more correct according to Talha's narration, and This agrees with the reasons of caution.

Islamic jurisprudential schools - in particular, Sunni jurisprudential schools - despite their differences in minutiaes, ultimately they have the same in principles of Ijtihad. In fact, as time goes by and away from the first three centuries of Muslim history, known as the age of the compilation of the Islamic heritage, the fluidity and diversity of ideas and the plurality of opinions diminish and gradually fade, and so the origins of the jurisprudential schools come together in a single core package. For example, the inferential basis of what we know today as the Hanafi school and its attitude to the main Sunni hadiths’ books, such as Sahih al-bukhari and Sahih Muslim and other Kutub al-Sittah, as well as the type of relation that this school has with the Hadith , It is not substantially different from other Sunni schools such as the the Shafi'i school or the Hanbali school.    But a close examination of ancient and early evidences shows that there are fundamental discrepancies and discontinuities between the approach of Imam Abu Hanifa and the dominant well-established narrative of how to deal with hadith in the Hanafi school and other schools; the rupture that have been silenced over the centuries and ultimately have been denied.   Keywords:

Nowadays, a modern method for treatment of human infertility and reproduction is being discussed that has passed the animal experimental phase and waiting to be performed on human being. This method is mesenchymal stem cells differentiation of the patient or a stranger with producing specialized reproductive cells to be injected to the patient’s wife. In view of the authors, in this method, like in many other methods, there is no religious hindrance from the point of view of jurisprudence; because, in general, the mentioned process, whether the stem cell belongs to the infertile person or a third party, is deemed an optional act that not only does not cause any harm but also has various individual and social benefits. Therefore, according to the permissible principle (Ebahe), in fact, it is permitted. In addition, the the principle of innocence in subjective doubt and objective doubt will issue a decree on its apparent permission. Beside these, the regulations of “permit of everything having such expediency”, and also “the authority  of discerning the cause ” could be invoked in this regard as a confirmation.

In the legal system of Islam, establishment of family’s institution is carried out by marriage. While marrying the lawgiver considers rights and duties for each of the couples. Since the explanation of these rights and duties is directly related to the definition and nature of the marriage, study the position and the nature of the marriage contract is important. The dominant of  Imamieh jurists consider it as a contract based on barter due to the right of imprisonment and dowry and alimony. On the other hand, some consider it as naked contract. This article aims to study the consequences, rights and duties of couples by reviewing the definition of marriage. The findings show that marriage is nothing except couples' commitment to the formation of a common life. Therefore despite the existence of some rules apparently conventional, it has unconventional nature; dowry, alimony and the right to sexual productivity don’t consider as a component of marriage and its nature, but rather they are considered as a part of the mutual commitment of the couple towards each other and it results of the mutual commitment in marriage.

One of the main areas of disagreement between Shi'ite and Sunni scholars is the issue of temporary marriage (mut'ah). Following the views of historians in the historical books and exegetes in interpretation of Ayah 24 of Surah An-Nisa (4:24), the Shia believe that marriage has always been in legal and keeping with Sharia law, and it was never abolished; and that it was second caliph who prohibited it, not Prophet Mohammad (PBUH). In contrast to this view, relying on reports, the Sunnis claim that mut'ah marriage was abolished by Prophet Mohammad (PBUH) himself shortly after its legitimation. But, taking into account all the information and in light of the Principle of Istishab (Presumption of Continuity), the latter view is rejected.

One of the human achievements in the treatment mitochondria is mitochondrial transmission. The disease is caused by a defect in the mother's gamete, for this reason, doctors try to put the mother gamete nucleus in the gamete without the donor female nucleus to ensure the future health of the child with the aim of treating and preventing with mitochondrial diseases. Due to the recent emergence of this issue, the problem of child parentage has not been analyzed. Therefore, in this paper, we aim to answer the question whether the birth of such children can be the source of a relative relationship between all three parents. In order to respond to this question, in order to respond to this question, by considering the current farash and the customary reason, the child has considered the assignment of the sperm to the owner of sperm according to medical proofs, the study of the role of cell nucleus in the transfer of genetic characteristics also, in terms of the true cause and the analogy of the jurists, the woman owner of the gamete and the owner of the uterus, the mother of the baby is known.

In response to the question of whether relinquish rescuing Another Life would result tortious liability, there is Different views among legal writers. Believers of tort Liability have expressed four reasons: 1- fault of the abandoner  2- leaving  of the duty 3- relation between Criminal responsibility and tort liability  4- Preventing from getting the right. In this article, after explaining the viewpoints, it has proved that relinquish rescuing another life does not cause tortious liability and the conduct of the abandoner is not included to article 295 of the islamic Penal Code.  In fact, leaving one's life saved is simply a matter of dignity and no guarantee.

One of the significant subjects that has been intended by the jurists and scientists in jurisprudence and law is transaction with self and duties as well as effects arising from it. The main question in this issue is that " In case of Lack of clause in order to deal with self, does agent has permission to sell the property to herself/himself?" this research, by a descriptive-analytical method, clarify the nature of the transaction with self and prove to be the contract of this type of transaction, and examine the different type of granting representation.

simply approving an act in the Guardian Council can guarantee its legitimacy and correspondency with Canon Law. since the natural responsibility of this entity is to accord Islamic Parliment's enactments with Canon Law (religious law), besides unless legislature's enactments obtain its correspondency with the Canon Law, it can not be described as an act. The Guardian Council has enacted the computer's crime law, so it has legitimacy and for the punitive justice agents this amount of legitimacy is enough. But from the jurisprudence point of view it should be detailed more and the arguments and proofs upon which the legitimacy of this act stands be clarified. The subject of this article is to examine the Canon Law's catechism of producing, distributing and diffusing malwares in the cyber space that is the subject of clause 25 in the computer crimes law enacted under the influence of Budapest convention. There is no instance of this crime in the religious tradition and verses as it is a new crime. Therefore to prove its legitimacy we should refer to intellect and general juridicial(فقهی) rules, such as no harm rule, Tasbib rule(causation rule), Taslit rule, Al ta'azir be yadelhakem rule etc… .It is concluded that the mentioned crime not only doesn't conflict with the religious cases but also we can obtain many reasons for its legitimacy