نشریه مبانی فقهی حقوق اسلامی
سال پانزدهم شماره 1 (پیاپی 29، بهار و تابستان 1401)

The aim of this study was to identify the effect of time and place on the allocation of divorce rights by descriptive-analytical method. The issue of equality between men and women in the right to dissolve marriage, as well as its conclusion in terms of Islamic jurisprudence and law, has long been raised among Muslim thinkers; But the objections and protests have never been as high as they are now, the emergence of civil movements and human rights activists and the increasing awareness of women about their rights have caused these issues to be raised more seriously and jurists and legislators of Islamic countries look at the issue from new horizons. The findings show: The study of the role of custom in allocating the right to divorce is one of the important issues in the field of jurisprudence dynamics and without a doubt the role of custom of time and place is one of the important issues in this regard. Assigning the right to divorce to a man is one of the matters that is not explicitly mentioned in the Qur'an and does not deprive the wife of this right. A historical study of the status of women in the time of ignorance and the view that the Arabs had of women and the types of divorces in that day, by examining different temporal and spatial customs, customs and religious imitations, is ordered to divorce the wife

In cases where in a complex with multiple stakeholders, heavy damage occurs in the occurrence of honor and by causing less damage, heavy damage can be prevented, the compensation of this damage is less on all stakeholders, which is called joint damage. In this research, the jurisprudential and legal nature of this type of lawsuit has been studied. This study was conducted to investigate the jurisprudential and legal nature of preventive claims. This research has been done by descriptive-analytical method with the tool of collecting filing materials. In our country, this type of damage is mentioned only in maritime law and is not explicitly mentioned in other similar matters. In Western countries, especially in the French legal system, the principle of joint damages is recognized. Jurisprudential principles based on the rule of no harm and repulsion of corruption, have accepted this rule and all stakeholders share in the compensation according to the extent of their interests. In the current silence of the law, there is a need to recognize this type of damage in all civil matters under Article 167 of the Constitution.

The rule of imposition of reason in jurisprudence generally and briefly has a history, and its acceptance and validity can be seen in the jurisprudence rule of Allah Ali al-Mada'i. The traces of this rule in the actions of the legislator can be seen in Article 1257 of the Civil Code and Article 197 of the Code of Civil Procedure. In this research, an attempt has been made to define the framework of the rule of the place of discussion through the identification, counting, investigation and assignment of the involved components in a logical manner and working on love, the rule of bearing the burden of proving the reason for the effect in the hands of general benefits (the general rules of the rule that in all contempt rules, it has general (rules related to the type and characteristics of the lawsuit) and partial rules (rules related to the type of reason to be expressed), which requires an accurate and comprehensive understanding of the rule to pay attention to all three levels of the mentioned rules. . Among the sensitive and complicated points, we can mention the standard of the claimant's recognition of the negative and the level necessary to provide evidence and reach the level of proof. As long as the above points are paid attention to as independent institutions in the judicial field, the problem will remain on its own. The solution to the problem lies in sociology. The set of the above points has been examined and carefully considered in order to explain the concept of the rule's enamel, i.e. the burden of proof.

Illegal cross-border trade, contrary to the country's laws and regulations, is called goods smuggling, which disrupts the country's economic policies. Due to the fact that resistance economy is an essential need for our country, it is necessary to prepare a local model to fight and prevent the smuggling of goods, which was done in this research using a quantitative-qualitative method. Out of all the police personnel fighting against goods and currency smuggling in Bushehr province, 10 people agreed to cooperate with the researcher in the interview section and 100 people in the questionnaire section. After the interview, the desired factors were identified and ranked by scoring in the questionnaire section, which finally led to the preparation of a model for combating and preventing goods smuggling. The main factors including five factors 1-economic, 2-executive, 3-technical, 4-legal and 5-judicial-security were determined. Each main factor has 5 sub-factors, which was designed as a model with a total of 25 sub-factors, and it is hoped that with its full implementation, the general policies of resistance economy with the approach of border dwellers' rights will be realized.

The purpose of the current research is to investigate important quasi-judicial authorities in municipalities. The research method is descriptive and analytical, and the normal laws and approvals of the Council of Ministers and the law describing the duties of municipalities and rural districts have been used. In this research, only the Article 1000 Commission, the Article 77 Commission, the Article 99 Commission, the Tasbra Commission under Article 55 Clause 20, and the Garden Identification Commission were investigated. The results showed that in the Commission, Article 100 of the proceedings indicates compliance with the legal formalities of the procedure, but the lack of transparency in its notes causes many legal problems. The problem with the Article 77 commission is that it is one-stage, and unlike the Article 100 commission, it does not have an appeal commission. The Commission, Clause 20, Article 55 of the Municipal Law is one of the examples in which the laws related to urban planning in the field of urban services are planned and controlled in a completely specialized manner. The above-mentioned commission is the authority to deal with citizens' objections to the municipality's decision regarding the closure, destruction and relocation of disruptive industries and businesses outside the city. Its common feature with the Article 77 commission is that the commission does not have an appeal and is one-stage, and the Article 99 commission is in the suburban area and outside the city, and the place of formation is in the governorates, but the place of formation of the Article 77 commission is in the municipalities.

If in the meaning and concept of a part or condition of the contract that hasn’t been negotiated independently by the parties,there be doubt and ambiguity,interpretation is usually in favor of the person who has recently joined the contract and against the person who drafted the contract, because the original person preparing and arranging the contract has the power to prevent doubt and ambiguity in the text of the contract when preparing and arranging the initial text. This principle is explicitly and some times explicitly enshrined in the law of the German Roman states and common law , but it doesn’t explicitly exist in Iranian law. However ,according to the principles and foundation of jurisprudence and the requirments of the principles of justice and the rule of will and the rule of causation and prohibition of frand against the law, this doctrine can be considered applicable in Iranian jurisprudence and law.

Destructionism or vandalism means the uncontrolled destruction of valuable cultural objects and artifacts or public property, which is considered a social anomaly. With the current approaches of criminal law in Iran, this social anomaly has not been criminalized in all its cases. In this article, we seek to answer the question that vandalism can be criminalized based on the criminal jurisprudential capacities in the Constitution and the Islamic Penal Code. Descriptive-analytical method should be specified; According to Articles 677 and 588 of the Penal Code of the Islamic Penal Code 92, the perpetrators can not be considered a criminal offense. The principle of necessity of observing individual rights in criminal law in jurisprudential criminalizations, the principle of necessity of public order and maintenance of public property treasury, resolving conflicts of jurisprudential criminalization with the principle of legality of crime based on rational and legal approaches based on jurisprudential and legal capacities for crime Some jurisprudential instances of jurisprudence have taken steps.

Review:A brief look at the jurisprudential history of the debate We came across two promises of change and order. Because sometimes the evidence leads to the abandonment of the primary appearance and the removal of iodine from the main literal meaning, in which case the primary meaning is stagnant, and the word acquires a secondary meaning. Like the repeated repetition of the word "he" in the verse of Moharebeh. Another example is what has been said: Citing the two verses of expiation of oath and expiation of Hajj has made the above-mentioned cases optional in the case of the agent of Bahma, therefore, this word also has an optional meaning in the punishment of the enemy! Sheikh Tusi in his book Khalaf rejects this argument and says: But where there is atonement, there is a journey from fear to violence. Therefore, the analogy of "him" in expressing the four punishments to the expiation of swearing and Hajj is completely unjustified. As for the Sunni jurists, Shafi'i, Hanafi and Ahmad have considered the preferred word as the order, and Lee Malik has believed in the optional change which is related to the same word. In total, in the study, eight reasons were presented for preferring the promise of order over choice. As a result, Saeb's promise on how to apply the four punishments is order. In addition, reflection is inferred in the narrations of the chapter, these two promises do not have a substantial contradiction with each other, even the promise of change corresponds to the order and proportionality of the crime with the punishment. So the legitimacy of the promise of order is proved. It is worthwhile for the criminal legislator to try to amend Article 283 of the Penal Code, based on the promise of order.

One of the most frequent institutions that is considered in various jurisprudential subjects is the institution of "Wilayat (guardianship) ". Among the examples of guardianship, "customary guardianship" has been less discussed and studied, and in addition to the need to explain the nature, it is necessary to examine the arguments for the legitimacy of its guardianship. Accordingly, the major question of the study is "What are the principles of legitimacy of customary guardian?". The research hypothesis is that blood relatives (other than father and paternal grandfather) are the customary guardians and narrative and rational arguments can be used for the legitimacy of their guardianship. The method of this study is descriptive-analytical and the religious arguments are analyzed in it. The finding of the current study suggests that by analyzing and scrutinizing the primary and secondary arguments of the guardian, the customary guardian can be accepted as a constrained guardian. Accepting the legitimacy of guardianship of a customary guardian will have many effects on individual and social life. In addition, it can reduce some of the responsibilities of the government and the judiciary system, and manage affairs more easily and by the people themselves.

The principle of prohibition of discrimination is a principle that is recognized as a human rights principle in the international law and is emphasized on by numerous documents. The principle of prohibition of discrimination that enjoys a worldwide acceptability and is confirmed by the contemporary rationality, may represent the transition from the discriminatory mores of the age of legislation to the egalitarian mores of the contemporary age. The question at hand is: what are the impacts of this transition on the discriminatory rules of Islamic law? Considering the fact that the discriminatory mores of the age of legislation were part of the subjects of the discriminatory rules of the legislator, is it right to claim that with the advent of the principle of prohibition of discrimination -that indicates the annihilation of the discriminatory mores of the age of legislation and formation of the new mores- the subjects of the discriminatory rules are eliminated and as a result the discriminatory rules of Islamic law are negated through the negation of their subjects? This article is an attempt to present that the discriminatory mores of the age of legislation are bound to the subjects of the discriminatory rules and thereupon with the formation of the principle of prohibition of discrimination that implies the egalitarian mores, the discriminatory rules of Islamic law will be replaced with egalitarian rules.

With the introduction of cryptocurrency into the world of economy, smart contracts were formed based on it and are now partially popular. Experts in this field believe that in case of widespread use of this type of contracts, the possibility of formal transactions will disappear. Despite conducting numerous researches on smart transactions, the discussion of virtual transactions has not been investigated in this field, and this research, using an analytical-descriptive method, is for the first time trying to investigate the responsibility of the Islamic government in this regard. It seems that due to the negative effects of formal transactions in the society, if a special mechanism can eliminate these transactions, the Islamic government is responsible for making them mandatory. According to jurisprudential interpretations, providing social and economic security is the government's duty, which is an example of the mandatory smart contract with the aim of eliminating formal transactions. From a legal point of view, the executive and judicial authorities can send a bill to the Islamic Council regarding the mandatory use of smart contracts in order to provide legal protection and also to prevent the occurrence of crimes. Monopoly in the smart type of contracts is contrary to Islamic Sharia and its partial acceptance is possible like electronic transactions. If the related law is not approved, the executive bodies in charge of certain affairs can use their authority to make these contracts mandatory. The final result is that with the relatively mandatory smart contract and the popularization of cryptocurrency, it is possible to eliminate formal transactions and this action is considered to improve economic security.

The principle of coherence means the connection of laws with morality in society, and of the rights in which the principle of coherence has been neglected, the right of pre-emption is indivisible in movable and immovable property. Articles 808 and 815 BC provide for the right of pre-emption for immovable and divisible property, but these articles can be challenged in two ways; A) Jurisprudence: In proving the right of pre-emption is a theory that, based on jurisprudential arguments, considers the right of pre-emption in movable and immovable property indivisible; B) Ethical: Based on the principle of coherence of the rules of law and ethics, the right of pre-emption is current in this property. The present study was conducted by descriptive-analytical method and seeks to answer questions such as; "How does the principle of coherence imply the proof of the right of pre-emption in indivisible movable and immovable property?" The right of pre-emption in the mentioned property is fixed in three reasons of the four jurisprudential evidences (Sunnah, consensus and reason) and by invoking the principle of coherence of laws and ethics. And the opinions of jurists and not paying attention to the legal-moral principle is coherence.

In 0rder to hearing any case based on the rules of jurisdiction, aside from the fact that the judicial authority must has jurisdiction to hear the case, a judge who is refereed by the authority should also have personal jurisdiction to hear the same case on the basis of rules of judgement. Independence and observance of the principle of neutrality have been bases of rejection to the judge, guaranteed principle of just judgement, and has been dealt with in the branches of civil, criminal and administrative judgement. In the Islamic era, judges were appointed by the head of government that is khalifa. In this era, except for certain points of the history and rulings of some king, law in Iran has been based on jurisprudence; so, regarding the legal shortcomings, in addition to study just jurisprudential books, it is necessary also to consider principles and rules of transnational procedure cod. As well as, that how the issue of rejection to judge is raised in Islamic jurisprudence, in the principles of international judgment, and in the direction of globalization, and which appropriate guarantees are mentioned and anticipated in line of just judgment can create the context of correction and somewhat compensate void caused by the lack of judgement code.

Criminal security agreements are temporary and numerical agreements; They are temporary because they restrict freedom until the outcome of the trial is determined. Preventing the violation of the rights of the litigants is eliminated by eliminating the conditions for issuing the contract. According to this law, it is supposed to provide different types, including: temporary detention, bail, bail, commitment in this article to the jurisprudential analysis of accepting bail, according to which one person (guardian) against the other party (guaranteed), the presence of a third party (Guaranteed) was paid, and through the collection of libraries it was concluded that if it is possible to guarantee the rights of the victim in other ways, it is an obstacle to the issuance of bail and acceptance of the property introduced by the guarantor is subject to the conditions and facilities of the court for acceptance. It is. The amount of bail and bail should not be less than the damage to the victim in any case.Keywords: surety, bail, defendant.

The return of Jesus Christ, which is interpreted as the second coming or parousia, is a Christian belief that this idea is based on prophecies and is part of Christian eschatology. There are differences of opinion among Christian sects regarding this view. In the New Testament, the return of Jesus is mentioned and in it terms like: arrival, coming or presence are mentioned and that event is defined as "savior" and "incarnation" of God. According to the New Testament Bible, the return of Jesus to earth will be a glorious event that will appear with events. The Second Coming is mentioned in the Nicene Creed and the Apostles' Creed. In the following centuries, the issue of the return of Jesus Christ in the Protestant circles also has debates and reform actions, especially because in the Lutheran and Anglican rites it is mentioned as the second return that Jesus will come again with glory to judge the living and the dead. According to Anglicans' belief, we experience the signs and evidences of Christ's return in the world and in our current life, which we clearly witness in the Eucharist. According to them, the return is in justice and peace and this fact must be realized. Finally, there is the belief and expectation of the return of Jesus in the end times. In this essay, prominent cases of apocalyptic beliefs of Christianity, especially in the Anglican denomination, are examined.

In the Civil Code of the Islamic Republic of Iran, the damages caused by the breach of contract are predicted in Articles 226 to 230. In a legal sense, damage refers to either the incurred loss or the money awarded to compensate for damages, and in jurisprudential texts, it refers to “injuries”. The important point is to find the type of damages that can be recovered. This article focuses on the types and rules of recoverable damages in the breach of contract in jurisprudence and Iranian laws in terms of nature, cause, source, and time of loss occurrence and then they are adapted to French law with respect to its latest amendments. Material damages, moral damages, damages for loss of prospective, collateral damages, late payment damages, past direct or future certain to happen damages as well as delay penalty can be considered as recoverable damages in the breach of contract that are required to be explicitly specified by the legislator. Some of the recoverable damages found in the French legal system in the breach of contract is not predicted in the Iranian legal system, including “damages incurred due to trust” and “damages incurred due to expectation” or the issue of judicial adjustment regarding the “penalty clause”, which has been added to the new law in France, but does not exist in our law and should be added.

The necessity and strength of the contract is considered as one of the basic principles in transactions. Although the basis of legal laws in line with fundamental principles such as the principle of necessity is to try to strengthen the contract and prevent its unnecessary dissolution, sometimes the principle of necessity can create adverse effects for the parties.relinquishing all kinds of options, including the option of deception, even to the highest degree" is included as a term of contract. However, including different terms without knowing the consequences or signing the contract based only on good faith in the other party is reckless and irresponsible, because in the event of a dispute by signing only the provisions of the contract, the signatory is responsible and obliged to accept the consequences. This means that after accomplishing the contract, the parties to the transaction cannot terminate the contract under the pretext of fraud and loss. Since in some cases this term becomes a tool to abuse the right and basis of the loss, in law, whenever there is a discussion of the loss and gross damages and compensation, the no- harm rule comes to mind so that by the help of this powerful lever, the victim is able to compensate for the damage. In this article, adopting the analytical-inferential method and documenting the fortieth Principle of the Constitution and emphasizing the no-harm rule, the denial of validity of the condition of " all kinds of options relinquishment " has been examined and investigated.

International sanctions, whether unilateral or multilateral, have always been used in order to change the behavior of the sanctioned country. The main question of the current research, which was done in a descriptive-analytical way, is that, firstly, what will be the status of the implementation of contracts as a result of the occurrence of international sanctions? Secondly, what are the solutions for managing the implementation of contracts during the period of intensifying international sanctions? The result of the present research is that from a legal point of view, the occurrence of international sanctions can be reconciled with three different doctrines, namely, force majeure, sterilization and the difficulty of implementing contracts. Considering that it is still possible to implement contracts despite international sanctions and only their intensification has made it difficult to implement contracts, international sanctions should be made more consistent with the doctrine of difficulty in implementing contracts, or hardship. One of the most effective solutions in the field of contract management in the era of international sanctions is contract modification.