فصلنامه حقوق اسلامی
سال هجدهم شماره 1 (پیاپی 68، بهار 1400)

One of the important rules that is used in most jurisprudential chapters is the "rule of necessity. According to this rule, committing a haram and forbidden act is permitted under certain conditions, such as “observing proportionality”. Therefore, although attacking civilian targets is not normally allowed from the perspective of Islamic law, but with the realization of military necessity, attack is allowed within the framework of the prescribed conditions for committing a necessary act. Nevertheless, the realization of military necessity in time of war cannot be a reason for the use of weapons of mass destruction. Therefore, weapons of mass destruction cannot be used to maintain Islamic rule or the basis of Islam. Because this would be a violation of the purpose of the existence of Islam and the formation of an Islamic government. In addition, today, due to the dispersion of Islamic countries and Muslims in all parts of the world, the destruction of the basis of Islam is practically impossible. As a result, the need to preserve the "Bayzat al-Islam" will never be possible, so that the use of weapons of mass destruction will be necessary.

The realization of specific intent in result crimes, is the consequence of direct relationship between the sensual interactions and the criminal results. Intention of acquiring the result is a kind of mental state that according to the lawyers’ opinions, and based on the criminal law, by develops a such relationship, forms the specific intent , the Intention of acquiring the result is not only state of mind that develops a direct relationship between the perpetrator’s mental interactions and the criminal results., in accordance with the Islamic Penal Code developed in 2013, further to the mental state of intention of acquiring the result in realization of the above-mentioned relationship, the perpetrator’s knowledge of the criminal result, under some special criteria, can also play a distinct role in forms of the specific intent. At present and based on the criminal legislator, the perpetrator’s knowledge of criminal result can lead to specific intent by either knowledge of occurrence of the result or knowledge of the capacity of the act to cause the result. In accordance with the present criminal law, although the knowledge of occurrence of result can lead to specific intent in all result crimes, however, this cannot be extended to knowledge of the capacity of the act to cause the result.

The issue of the permission or the denial of the use of life-sentenced prisoners of imprisonment from probation is one of the issues that has been the subject of dispute between courts for several years, and some, according to the Note to Article 1337, allow probationers to be imprisoned for life, and some, based on the advent of 38 The Islamic Penal Code of 1370, Article 58 of the Criminal Code Approved by the same text as the substitute article 38 of the aforementioned law, it has been considered abandoned by the Note for the Unilateral Article of 1337, and the conditional release of the convicted prisoners for life imprisonment was considered unlawful. In this paper, while expressing legal views on this issue and evaluating and analyzing those views, the Verdict of Unity of the Supreme Court's Supreme Court No. 764 regarding the prohibition of the use of convicts for permanent custody of conditional release is criticized and concluded. It has led to the fact that the unanimity of the Supreme Court's Supreme Court No. 764 is lacking in argumentable arguments and contrary to legal practice.

Economic corruption affects the various dimensions of the economy, politics, society, culture, and religion of the society and inflicts irreparable damage to them. The destructive effects of these crimes are wider when criminals have a high social status. Although economic corruption is a specialized crime, and criminals are aware of the effects and consequences of their actions, but with regard to the circumstances of the crimes and offenders, the psychological component of these crimes is in difficulty. Consideration of the absolute criminal responsibility for these crimes has also been emphasized by international institutions, and Iran has not taken effective action in its penal provisions despite the adoption of the matter under the Merida Convention. Considering the necessity of a differential criminal policy against the economic frauds of the white collar, the present study seeks to prove that, according to the legitimate evidence of shariah in the economic corruption of the white collar and its members to the state, there is an absolute criminal responsibility and there is a certain psychological pillar for them .

Any contract whereby the pre-seller commits to construct or complete the specified building unit in accordance with the building plan and contractual features on one land and the said building unit at the due date and in exchange for the contractual amount being owned by the other party to the contract (pre-buyer), it is a “Building pre-sale contract”. The said contract while similar to some jurisprudential and legal entities, does not exactly comply with these recognized legal entities. The pre-sale contract has similarities with the contract of Predecessor sale, the contract of istisna'a, the contract of sale, the Suspended sales, the obligation to buy, the indefinite contract (private contract) but differs in some respects from these institutions. In this research, while comparing the pre-sale contract with each of the aforementioned entities and examining their similarities and differences, we will see that according to the existing provisions of the pre-sale building code adopted in 1389, the legislator, after defining the pre-sale contract, Mentioned the conditions And the legal effects of that contract, so it must be believed that the pre-sale contract is a definite contract with its own rules and conditions and has its own legal effects as a specific contract.

Human rights etymology is so important and at most difficult in human rights discourse. Most philosophers of human rights claim that they are natural rights. Therefore, human nature must be their resource. This is innovative to give argument to indicate where the base of each right of human rights in human nature is. Human soul as human nature is of three levels: vegetative, animal and rational levels. Natural human rights are effects of those levels in the direction of human movement to the final perfection, i.e. the stage of perfect human being. Thus, natural human rights are divided into three classes: vegetative, animal and rational rights.This writing aims at answering to this question: why does the human have vegetative rights? In other words, what are the roots of vegetative rights in human nature? In this research activity, it is prompted to be spelt out the philosophical reason of each natural vegetative right of humans by revising some part of the Islamic theory of natural law. This is the innovation of this paper. Vegetative human rights, which are included in the collection of the right to vegetative life of humans, are 25 rights. The bases of those rights are five basic rights which are: safely nutrition right (nutrition immunity), the right to breathing in fresh air, the right to health, the right to hygiene (and cure) and the reproduction right. Other 20 rights which are secondary, are derived from these primary rights. The research method is rational in this writing.

Filicide is an even happened from ancient time to now in different societies. Sometimes, parents’ mental diseases lead to filicide and in other cases, poverty and drug addiction cause that parents kill their children. In the meantime, by fear of a malformed child or mother’s death, a child may be aborted and his/her life comes to an end. Anyhow, in Islamic punishment law and Emamieh jurisprudence, if parents kill their child, identical verdicts are not issued for them irrespective of the reason so that if father kills his child, he cannot be retaliated while if a mother kills her child, she is entitled with murder penalty. An important question is raised: why different verdicts are issued and isn’t it possible that mother can be exempted from retaliation as same as father? It is important to address this issue since Islamic punishment law in Iran is formulated based on Emamieh jurisprudence and a proper answer to this important question can be effective in legislation process. Present study examines jurisprudential texts and narratives of Emamieh jurisprudence and by introducing two opponent and proponent insights on mother’s retaliation, it is said that mother also can be saved from retaliation penalty.

this article is going to determine whether the conviction for the criminal of Saab al-Nabi is due to Saab's apostasy or whether Saab al-Nabi is an independent criminal offense and its punishment is not conditional upon proof of apostasy. Many Shiie jurisprudence believe that the light punishment is a divine limit and that the death sentence for Saab is for some reason other than criminal of Saab is apostasy. It is religion that leads to his apostasy. Some jurists, however, take a moderate view, believing that one must keep in mind the word used by Saab. The Iranian legislator in criminal law code has adopted the first view in the Islamic Penal Code, with this explain that saab al-nabi is independent and not relate to apostasy . Although this view is accepted in the jurisprudence, its acceptance seems not to be absolutely correct and in some respects is at issue.

We may encounter circumstances in which we cannot deduce the Islam ruling (Hukm sharii) from the four sources (primary sources-daleel Sharii) .In this circumstances there is many practice principles(Usul Amaliyyah-Secondary Sources) from which we can interpret Islamic ruling. So Usul Amaliyyah are used to deduce Islamic ruling, not subjects. But sometimes, in order to prove the subject of the ruling, it is also referred to the practice principles and they called subjective principles, such as subjective presumption (Istishab mowzoei). On the assumption of subject, the actual existence of it cannot be proved; since this issue is not in the authority of the legislator (sharea’), rather, with regard to deduce Islamic ruling, that subject is supposed to be existing, here it is called Apparent law (Hukm-e Zaheri). Now, if the subject has the ordinary and rational requisites, and an Islamic ruling is established about it, with application of principle it is not possible to prove the requisites and the Islamic ruling that has been established. The proof of the rational and ordinary requisites depends on the actual existence of the subject (Mustashab). This subject is proposed in Usul Al-Fiqh under the Asl Mosbet. It is said that practice principles, do not prove their ordinary and rational requisites of their issue and they are not proving. We criticize and analyze different opinions about it and express the basics of its lack of authority.