JOURNAL OF ISLAMIC LAW AND JURISPRUDENCE RESEARCHES
Year:2019 | Volume:15 | Issue:54 |Papers Count:10

There are two well-known theories regarding the basis of civil liability presented by experts fault theory and risk theory. However these theories have problems preventing them from being responsive to today complicated relations. There are Hadiths and narratives in jurisprudence identifying the foundations of government civil liabilities, the most important of which is no-harm principle. In law, including constitution as well as other rules, there are principles and articles dealing with governmental civil liabilities. However, these articles recognize governmental civil liabilities merely in special cases. In the present study, first the general foundations of civil liabilities are studied; then the legal and jurisprudential principles of civil liabilities in financial affairs of the government are investigated. Finally, some considerable suggestions are presented in this regard indicating government failure in financial affairs; hence the government should take legal and official arrangements, so that no legal and real entities are harmed.

Suspension of proceedings is contrary to the principle of resolving disputes in the shortest time. Based on the occurrence of some causes, the suspension may be suspended so that the suspension ultimately undermines the rights of the parties or one of the parties to the dispute. The death and stoning of each of the parties to the dispute is one of the instances that impedes the proceedings and suspends the proceedings, or that the suspension may be due to a third party's protest or a court order to detain the trial. Examples of the suspension of proceedings in the Civil Procedure Act and the law of execution of sentences seem to be true. However, the legislator has neglected to use the term delay, rather than a suspense, a clear example of which can be found in articles 423 and 434. In both cases, the order is suspended, but the legislator has used the word delay. In this article, the concept of suspending the proceedings and some of its examples are selectively evaluated and discussed, in order to be able to accurately comment on this impediment in the course of the proceedings.

Diligence is a process to understand the religion, discover and infer the religious orders. After 6th century, the meaning and basis of diligence in Islamic law have been changed and a new idiomatic expression has been created in which probably based on that, friendly and traditionally called people of diligence. Among Traditional followers, the oldest text about diligence’ s usage with this new definition apparently is the valuable book of “ Almustasfi” by “ Imam Mohammad Ghazali” , which had nominated wisdom as a tool and even a reference of diligence, even though among religious scholars who were according to them. They are living in obstruction age or monopoly of diligence. New idiomatic diligence could be known as in Helli’ s certain phrase at the beginning of chapter nine of “ The principle of ascension” that describes some articles in order to diligence’ s truth. Diligence in jurists’ customs is effort in religious orders extraction, since religious order is not commonly gained from texts appearance, but getting to know them is based on theoretical rules as well as raising reasons. Nowadays, with attention to modernity, occurred situations or in the other word, time and place’ s requirement, diligence goes over comparison and the rest of traditional references, in cases where there is a need for serious change, particularly punitive sentences, one should consider the rationale of religious, and customary rationality.

Qadhaf is one of the Shariatic prescribed punishment which is also covered in the law. Article 260 of the Iranian Civil Code, adopted in 2013, stipulates that the heirs of the extruder from the libel limit exclude the couple from inheriting the libel. The main objective is to study the jurisprudential evidence of the exclusion of the couple from inheritance by defamation; of course, we have studied the views of jurists as a preliminary observation in this regard. This study was written using both jurisprudential and narrative sources and with a critical view of the views of jurists and legislators in the same law of inheritance procedure. In view of the characteristics of the inheritance procedure and the lack of evidence to exclude the couple, we conclude in this study that this article appears to be unsupported and incorrect. At the end of this study and in view of this finding, we have made suggestions to amend the article of the Iranian Civil Code.

Since the family and the stability of its foundation, for providing the proper and required functions, has particular importance, and on the other hand, there is the possibility of collapse and destabilize due to various behaviors and factors, criminalization of behaviors against family in the Imā mie jurisprudence and law is taken into consideration. Meanwhile jurisprudential rulings include avoiding criminalization of the most family violations. In contrast, a group of lawyers and sages believe that the criminalization in this field is against to the nature of the family and its requirements, referring to the family privacy and the separation of morality from the law. According to the findings of this study, Islam also does not endorse criminalization in the family except in sexual relations, and has emphasized on solving the family problems through other ways, like establishing a family court, reconciliation, and so forth.

The interpretation of religious texts and the rules governing it have always been and are the important topics of linguistic knowledge, including the principles of Islamic jurisprudence. Ertekaz in common law is one of the principles governing the interpretation of religious texts that plays an important and influential role in the process of deduction. Ertekaz is the initial perception of people about one thing that has penetrated the depths of their minds and thoughts, therefore; in the system of dialogue, it is considered by the parties. The main questions in this study are whether Ertekaz has a role in deducing legal-jurisprudence law or not, and whether the mujtahid necessarily pays attention to Ertekaz in common law or not. The hypothesis of this research is in view of the fact that the saint legislator speaks to the people as a law maker to guide them and also he considers their perceptions (Ertekazat) and if he does not accept that, he explicitly proclaims to prevent them from being deviated. The great jurists have repeatedly relied on this rule in the interpretation of religious texts, and they have deduced the religious judgment from this point of view. The researchers in this study tried to revive the magnificent capacities of Ertekaz through presenting its comprehensive definition and explaining its aspects. The findings of this study showed that the law of Ertekaz had effects on interpreting the religious texts, providing some law, and preventing long discussions on the principles of Islamic jurisprudence.

One of positions with high social significance is judgeship which is considered as reference of obviating conflicts between people. In Islam religion, commissioning this position is obligatory for those who are competent. It is well known among jurisconsults that receiving fee for obligations is unlawful. For proving this illegality, Quran Ayahs have been adduced that citing them is not sufficient. Along with these ayahs, some traditions have been mentioned on remonstration of fee for judges who have introduced it hard and illegal, that these traditions may be considered warden on the judges who are appointed by oppressor sultan. In contrast, some for ordering the license of receiving fee for obligations have adduced reasons such as respecting Muslims action and predicating return reasons and invalidity of prohibition reasons which seem defendable. But since the current duty of judges of justice according to law is merely accommodating the claims with legal clauses, they could be called legal expert not legal judge, so in judicial aspect, receiving fee by them is treated permissible. The present study investigates these topics and concludes that receiving fee for judgment has no judicial barrier.

According to Article 4 of the Constitution, it is necessary to comply modern contracts with Sharia. Design, procurement and construction contracts are some of the modern contracts, so that Article 165 of the 5th Development Plan obliges executive agencies to implement it. Since a unit in this contract performs different stages of design, purchase and construction, and the employer can use the project with a key, it is known as the turnkey and key contracts. This study investigated the contract with a jurisprudential approach.

Edde is the amount of time when the woman dies or refuses to remarry when the woman dies in order to cleanse her womb from the fetus. Now, in the case of Edde, women who have made their uterus out of medical reasons have two conceivable views; a view is that the use of evidence and narratives relate to this category of women, and the other viewpoint, due to the appearance of some traditions and generality, is that they do not need to preserve Edde. The purpose of this study is to investigate the arguments of Edde and rereading Islamic beliefs about the issue. Then, the theoretical and fundamental method has been studied based on the principles to deduce this order. The result is that women who have withdrawn their womb have no need to preserve people.