فصلنامه حقوق اسلامی
سال هفدهم شماره 4 (پیاپی 67، زمستان 1399)

Banks take large sums of money as penalty clause which in some cases exceeds the original amount of money. There is a formula in banking contracts known as penalty clause which determines high rates of interest in addition to obtaining an undertaking for the interest and delay in payment. In this inquiry the exact borders of penalty clause, late payment damages and devaluation of money are described and coordination these concepts and judicial terms is analyzed. Prohibition of taking damages more than inflation rate is proved and taking penalty clause from interest and late payment damages is criticized. The other issues that are discussed in this research are: the neglecting of judicial precedent about debtor’s financial ability and content of article 227 and 229 civil code. The article concludes that in Iran legal system, banks at most are allowed to take damages as much as the devaluation of money and more than that is illegal.

AbstractThe responsibility of public property for paying monetary compensation has various basis and reasons. Some are the principle of disregarding a Muslim’s blood, assigning the crime to the government or state authorities, and also the principle of cost-advantage. According to the last principle which is the subject of this text, when a person gains an advantage or a profit from a thing or another person, he/she is responsible for it. The responsibility of public property for paying monetary compensation because of non-Muslim citizen crimes who can’t pay and also paying monetary compensation for the mistakes of a doer who has no heir but Islamic ruler, based on the referent of some narrations and Juris consult’s sentences, is because the mentioned people have to pay special taxes (ransom) to the Islamic government and/or their heritage will go towards public property.Key words: paying monetary compensation, public property, cost-advantage, principle of “man lahol ghanam”, monetary compensation inheritance

For marriage, as for other issues, there are primary and secondary rules in the Islamic Jurisprudence (Fiqh)In the Islamic Shari‘a, marriage is according to the primary rule “recommended” (mustahabb); under certain conditions, however, it becomes necessary. Among the conditions making marriage necessary is fear of corruption. If one fears or knows that, while being single, is not able to keep her/his piety, it is religiously necessary for her/him to marry. Fear of corruption in this issue is a secondary reason and necessity of marriage, in this situation, is a secondary rule. Even though an individual issue, the secondary necessity of marriage will become a legal one when it is considered with father’s or grandfather’s permission in marriage of virgins. The important point which may be discussed here is as follows: if we accept necessity of marriage for virgins, is father or grandfather able to prevent daughter’s marriage and is their opposition justified or not? This is a widespread issue for girls in the present societies; thus, it is necessary to explicate its rule according to Jurisprudence (Fiqh) and Iran Family Code.

AbstractWith regard to legal rulings, the wise legislator might issue a general ruling at first but later he introduces an independent specific concept which is extremely common and accepted in setting legal rulings because some laws might be enacted in the general form because of the gradual prudence in explaining the laws and the later the real ruling is declared in the form of an independent the specific law. But could such specific rulings be accepted in legal rulings? Or do we have to follow minor Naskh or find a middle ground in these cases?In this paper, first Takhsis , its various forms and circumstances are defined and compared with similar and relevant terms. Next, the independent specific concepts in religious rulings are compared with those in legal rulings so that we can find out whether there is a unified logic dominating these two concepts or there are contrasts between these two.

Infectious diseases have always existed in human societies And today it causes widespread social damage, from physical and human to financial and economic damage. On the one hand, the onset of these diseases may be due to criminal behaviour and their biological destructive actions, On the other hand, the transmission of these diseases leads to physical, psychological, economic and social damage, may it is due to intentional or negligent actions. From the perspective of criminology, both dimensions need to be causal and provide preventive social, situational and finally criminal solutions. The first and second dimensions are organized and extensive, from a zymological or criminological point of view, social-based damage is considered as one of the branches of criminology in the last two decades and if it is done in a limited and individual way, it is analyzed criminologically in preventive and legal criminology. The traditional criminal justice system is incapable of confrontation due to its weaknesses.

Copyright in civil law and common law systems offers protection of literary and artistic works, the subject matters of which are mentioned in open lists of the related laws of countries. Nevertheless, there are major disagreements on the possible protection of non-explicit subject matters among judicial precedents and doctrines. Among these controversial subject matters are olfactory works, which however lacking some properties of other explicit subject matters, are the result of intellectual endeavor. Despite pros and cons for offering legal protection, yet no absolute result is reached. In the present article, by reviewing judicial precedents and doctrines, the possibility of offering copyright protection for olfactory works is studied with the result that such works may be considered as an artistic work having requirements and conditions for legal protection. As no legal literature related to the subject exists in Iranian legal system, the only method possible is legal analysis on the basis of existing laws, which leads us to the same result as mentioned.

Genetic modification of germ cells or fertilized oocytes for the purpose of treatment and the ability to transmit changes to next generations is genetic and medical emerging issues that explains the religious ruling of various issues is the responsibility of jurisprudence. This is a descriptive-analytic study based on library resources while explaining jurisprudential views of Imamiyeh jurisprudents and Sunni jurists on the legitimacy of gene therapy. There are three views that are prohibition, licensing and conditional licensing the Imamiyeh jurisprudents believe in, namely, gene therapy through couple's genes and by some conditions while absolute prohibition is the prevailing view of Sunni jurists. Conditionally, in manipulation and modification the sperm of a male with another male gene ,the male can not be a father and only the husband is the father. Also in manipulation and modification a woman's oocytes with another woman's gene the mother is only the owner of the oocytes.

The Islamic Penal Code of 1392 has adopted a new criminal policy for people under the age of eighteen, and The punishments provided are less than that of adults. But the most important invention of legislator relates to establishing the term of maturity and intellect perfection to apply punishments in Hadd and Qisas. However, there are important ambiguities in this legislature's approach to observe. What is discussed in this article, Pay attention to the concept and conditions of maturity and intellect perfection in Hadd and Qisas and It is in conformity with the shariah criteria and jurisprudence opinions. Also, it should be said about the punishment of children and juvenile from 9 to 18 years of age, for them in the Ta'zir crimes Gradual criminal responsibility provided with Assuming absence of maturity and intellect perfection. But in Hadd and Qisas Only Mature people will be subject to Hadd and Qisas punishments that maturity and intellect perfection To be verified. Otherwise, they will be sentenced to alternative punishments, such as non- Mature people. However, the great ambiguities and disagreements of the judges in this regard make it necessary to amend the rules on it.

Islamic Jurisprudence and juridical analysis of Homicide with Non-physical act (non hitting behavior)The act of killing is an act that can take another person’s right of living. However, rarely, act has two types: action and abandoning the action. And action has two types too: physical and non-physical. Every action that does not left a concrete and visible effect on another person’s body and mostly causes mental damage to another person is called non-physical action. Non-physical actions are, for instance, shouting, telling someone bad news (like telling someone that his or her only child is dead) and etc. The question here is that if the non-physical causes a murder, would the responsible person have considered as a murderer? Should he or she punished? Imamieh Faqihs consider murder with non-physical act, if it is deliberate, and its punishment is execution. Based on clauses of 499 and 501 of Islamic law, committing murder with non-physical acts is like murder with physical action and it is acceptable for the lawmaker. The murderer will be punished based on the case. For doing the criminal responsibility, recognizing the attributable ability resulting form the criminal act (murder) perpetrator (murderer) is necessary. And it must be essential to attribute the act of killing to the murderer.

Simultaneous with glorious development in the realm of sanitary and hygiene, because of increasing in the age of life expectancy in one hand and reduction of tendency to birth in another hand, various societies face to the phenomenon of "population aging". Growth of Misbehaviors against seniors in these societies emerges a new field of protective law as “the elderly Rights”. Right to privacy and Independence of action is one of these rights. Health and Maintenance centers and the home environment are three space which the right has very important role on them. This article studies the position of the right to privacy in the life of seniors and necessity of intervention of Government to ensure it. We believe that protecting of principle of confidentiality of medical information in health centers, the right to treatment privacy in Maintenance centers and acceptance of relative definition of privacy about home and family life is essential for the subject matter. Also this claim is approved that in the conflict of rights of seniors with other’s and when the Human Dignity Principle is violated (such as Euthanasia), Government must provide limitation in the right to privacy and Independence of action.

ICC identifies no immunity for diplomatic officials regarding article 27 of its statute. But according to the article98(1) of the statute, the court may not oblige the state parties to perform actions against the obligations in the context of applying the criminal immunity based on the article31 of the Convention on Diplomatic Relations1961. Hence, the state party would face with two opposing obligations in implementation of the article98(1) of the statute in surrendering the national of non-party state to the court. According to the Vienna convention on the Law of Treaties, the substance of both treaties would be valid based on the principle of relativity of treaties, and the state party would be free in choosing to respect each one. By surrendering the alleged person to the court, the state party would have responsibility to non-party state according to the article27 of the statute, and if the state refuses to surrender the alleged person, would bear responsibility to ICC, according to article31of the Vienna Convention. But considering the hierarchy of the laws, the states parties may not have the right to select and should prefer the obligations caused by the statute to the obligations caused by diplomatic law.

Osul al-Fiqh was a collection of knowledge and technics related to inferring rulings from valid Islamic religious sources that gradually formed alongside the science of jurisprudence (and was initially considered as a tool for understanding the Book and tradition and extracting rules correctly from these sources; But then it was considered as an independent discipline. With the establishment of law schools in Iran, one of the courses that established as specialized courses in law was Osul al-Fiqh, and then many books were written by law professors in this field, and in the lab of law books, especially civil law, citing rules and basic techniques becomes an ordinary method. In this article, based on the research and experience of two decades of teaching Osul al-Fiqh, the author has tried to critique the common misconceptions in this field, and finally, as a result of this critical study, it has been suggested that this discipline is called "legal reasoning" in The law school, should be completed and special attention should be paid to the method of its learning as a knowledge and technic in law faculty and during the internship in judging and advocacy.

In war, individuals are vulnerable not only physically but also in terms of their cultural identity, and the obliteration of cultural heritage often becomes a central issue. This becomes obvious particularly the case in armed conflicts with an ethnic, cultural or religious character. Today heritage is no longer defined on the basis of its material aspect. In some regions, cultural heritage consists more of monuments and objects; it is a “tangible” heritage, mostly protected by the law of armed conflict. Elsewhere, where structures are impermanent, cultural heritage is mainly expressed through verbal traditions, rituals, music and other forms of expression that individuals create using various media and instruments. Such heritage is mainly “intangible”. In armed conflict, the intangible aspect of cultural heritage is also exposed to destruction, and it seems that the law of armed conflict cannot effectively protect this heritage. This essay aims to show that cultural heritage is both tangible and intangible, and that the law which protects such heritage is not limited to the law of armed conflict. This heritage also benefits from the protection of other applicable instruments, such as human rights treaties and the UNESCO cultural heritage conventions.