ISLAMIC LAW AND JURISPRUDENCE STUDIES
Year:2018 | Volume:9 | Issue:17 |Papers Count:13

One of the exclusive institutions of Iranian E-Commerce Law and convention on the use of electronic communications in international contracts approved in 2005 by united nations general assembly is the Nature of Withdrawal Right in Electronic Contracts. Unfortunately researchers haven’t studied the nature of withdrawal right of these two sources and commandments question of research: What is the nature of withdrawal right in Iranian E-Commerce law and convention on the use of electronic communications in international contracts? The method of this research in finding the answer of mentioned question is by using library and inferring from the articles of two mentioned sources. It means that this research has based its comparative study on the related articles of two mentioned sources. Also it has presented on the strength of rational analysis and legal inference method and in legal gap cases, these two sources on the strength of principl 167 of constitution low have retered to other iraian law sources, inclvding subjective and Imamieh law finded and presented its commandent. Importance and necessity of this research is that it is both the first scientific study in issue and a practical research. So its result will be useful for lawyers, attorneys of judiciary, judges of the courts and arbitrators in interpretation of the articles of two mentioned sources about the nature of withdrawal right of electronic contracts and commandments resulting from it.

Article 221 of Iran's Civil Code which is related to damages resulting from non-performance of contractual obligations and its terms, doesn' t have a clear nature both because it has no clear jurisprudential precedent and because of non-compliance with its foreign analogues. So, what appear in the legal writings are not the same or uniform; some have considered it as resulting from the silence of jurisprudence in the contractual liability and others have argued that the reason for its legislation is to cover the defects of jurisprudential tools governing the compensation. Any of the views expressed, faced with difficulties which are hard to be accepted. According to the author, legislator, for various reasons, has tried to attribute the contractual compensation to the contract and the parties' will; what has different results than other analyses and meanwhile ensuring the rights of the injured and compensation of damages, has also reasonable practical consequences.

Ambiguous of legal provisions need to be interpreted by the courts and legal institutions, including the Supreme Court. But this kind of interpretations should not be limited to formal interpretation without any regard to nature of legal relations. Because of the fact that it makes some problems in implementation of judgment in practice. Supreme Court precedent No.708 is an example of this type of approach where the nature of dowry and right of lien under Article 1085 of the Civil Code have not been Considered. The presented interpretation of the Article 1085 in practice surprised each neutral person in the case of long-term installments. This study presents a critical analysis of supreme court verdict with resort to the role of dowry in the marriage and wife right of lien. In conclusion, it can be said that verdict has issued regardless of the non-commutative nature of marriage, hence it is necessarily needs to be changed because of the negative impacts it makes in practice.

There are different laws and rules governing the distribution of an estate among heirs in different religions. Respecting the followers of divine religions, the Iranian law recognizes their respective rules of inheritance. Problems can arise, however, when there are Muslim inheritors among the heirs of a non-Muslim Iranian adhering to one of these recognized religions. Under such circumstances, on the one hand, Article 881 (bis) of the Iranian Civil Code and the Islamic laws stipulate that regardless of the religion of the deceased, the Muslim heir disinherits the non-Muslim heirs and is, thus, the sole heir. On the other hand, there are Special Laws holding that the frame of reference for distribution of inheritance is the religion of the deceased. Therefore, whether the heirs are Muslim or not should have no effects on the division of the inheritance. The author analyzes the relations of the laws, and argues that Special Laws have primacy over Article 881 (bis) of the Iranian Civil Code.

Money laundering refers to a set of operations on illegitimate property, such as drugs, theft, fraud, etc., to make such property look legitimate and to conceal its illegitimate origin. In money laundering operation, as a financial criminal activity, revenues generated by illegal activities are in a way mixed with revenue from legal activities so that they cannot be identified and differentiated from one another. In this research, it was tried to review the history of money laundering legislation and review the three elements of money laundering.

Inclusion of penalty clause (predefined damages) in contracts causes the obligee to sustain less burden of proof in order to claim the same, especially in such cases the latter doesn’t have to prove that a damage is sustained. In monetary obligations, unlike non-monetary ones, the value of penalty clause is an important and challenge issue as the same is a performance guarantee. Here, stressing that the amount of penalty damages in monetary obligations is a presumption and parties – whether both or one of the parties is a bank or credit entity – are not allowed to fix penalty clause at whatever amount as the desire, it’s been argued that when penalty clause is not included in an contract and when the damaged party proceeds to claim damages under the law, the latter may claim delay damages only up to a certain ceiling and to the extent of the loss of the monetary value, which is explained by the fact that such rules are presumptive. Thus, if the parties wish to include the penalty clause condition in the contract rather than relying on the relevant provisions of law, they may not include penalty clause in the contracts at whatever amount as they desire because the rules related to penalty clause or contractual damage also fall within presumptions subject to law.

In Article 237 of the Islamic Penal Code 2013, homosexuality or emotional and sexual trend between two males or two females means same-sex sexual or sexual behavior of two males or two females which is criminalized in the form of Sodomy, Tafkhiz, Lesbianism, Taghbil, Molameseh and other sexual pleasures. But it is not obviously used in the Islamic Criminal Law, though in the "Makasib Moharamah" it is matched with the words "Ta' anos" (femininity) and "Tazakor" (masculinity) that mean sodomy and lesbianism or interest in these two relationships. Of course lack of clarification of issue in jurisprudence of discretionary punishment (Taazir) and prescribed punishment (Had), along with strong prohibition documentation available in the sources of Islamic law (i.e. book, tradition, reason and consensus) does not mean denying being criminal of committed conduct of issue But also it seems as sequence of relying to the ruling and thematic alliance theory of natural general and its subjects, as well as the current principle of "discretionary punishment for all illegal actions", the prohibition of femininity and masculinity has been mentioned in civil jurisprudence.

The obligation to compensate damage, as the main goal of civil responsibility, is an evident and global necessity. Nowadays, the extension of concept of damage and review of basis of obligation had led to the development of civil responsibility. However, all the consequences of harmful act have not a similar character and thinking on this matter represents the difference between the natures of cases of compensation. Therefore, it appears that distinguish between the alimentary and reparation that doer is obliged to compensate. Although civil responsibility in social transformation, has admitted the function of some other institutions, but the main goal of responsibility, is reparation and imposition of some costs on the cause of the accident make transformation in it’s compensatory role to obligatory function that is out of civil responsibility. The separation of compensatory and alimentary obligation have different outcomes that their analysis can provide the goals in civil liability, ensure the rights of the parties and social security.

In the judicial system of Islam, the aim of the judgment is to provide financial, physical and reputation security to the people, which is undoubtedly of particular importance, indicating the sensitivity of the office of judgment. Occasionally, following wrong judgments based on judge’s fault, individuals suffer damages, in which case the judge will be liable for the loss caused by his professional fault. Given that judges do not have absolute immunity, the most important questions that rise in this regard is what is the reason for the legitimacy of the judge's civil and criminal liability? Why is it that the damaged party is entitled to damages, and whether such party may require a judge to pay damages. Examining religious reasons, such as Quranic verses, hadiths and rules in valid jurisprudential sources as well as legal sources, implies acceptance of civil and criminal liability based on the fault of the judge and in cases where their judgments based on their fault lead to any financial, physical and dignity damages to the individuals, they are held responsible to the damaged party.

The time and place mean the requirements of time and place and issues, developments, circumstances, and conditions that take place in time and place. This meaning has been emphasized in hadiths as well. Time and space play a decisive role in the enforcement of hadd, so in the event of an interference of the expediency of the enforcement of hadd with a more meaningful expediency, hadd may be suspended temporarily or be enforced in a different way. Reviewing of hadiths as one of the sources of inference of judgments is important in this discussion. For example, delaying the execution of hadd for a pregnant or sick convict, the perpetrator’s taking refuge in a holy shrine, warming and cooling of the air, woman being in menstrual period, and non-enforcement of hadd in such cases as the enemy's land, hadd in case of the people of the book, the urgency, amnesty of criminals in war times, amnesty of unmarried women, hadd in famine year, and change in the quality of execution of hadd for a diseased person, the case where it is expedient to expedite enforcement of hadd. In this paper, the role of time and place and discussion of expediency in hadd punishments is considered in terms of delaying, stopping and changing the quality of the execution according to the hadiths and opinions of the jurists, and it is concluded that it is necessary to consider in case of hadd the expedience and to observe the requirements of time, place and persons.

According to the Shiite Jurists’ famous opinion, the punishment of the active partner of sodomy (livat) is death penalty and the conditions for ihsan have no effect on it. Some of jurists such as Ayatollah Khoei have differentiated between an active partner of sodomy who meets the conditions for ihsan and others. They believe that the punishment for sodomy shall be the death penalty for the active partner in cases where he meets the conditions for ihsan and he shall be sentenced to one hundred lashes if he dose not meet the conditions for ihsan and he has not committed livat by using force or coercion. The article 234 of the Islamic penal code approved in 2013 has accepted this opinion too. In this research, we have criticized action of legislator in two ways: first, narratives documented by Ayatollah Khoei are weak because jurists have avoided acting according to it. Second, we have demonstrated that legislator has neglected this principle in the other articles of the Islamic penal code and has done base on the famous principle.

The rights of individuals have a great importance in Islamic studies. One of the legal issues, which has not been thus far researched independently, is whether or not hermaphrodites can act and serve as judges? Speaking from a legal perspective, this topic is not any less significant as compared to any other legal issues. The subject of justiceship or making legal decision has been a matter of contention and debate among the scholars. They are polarized on this issue. some considering masculinity as a necessary condition, others as unnecessary. This article seeks to examine and investigate this subject-matter from the perspective of jurisprudence, its principles and hadith. Based on the theoretical principles of jurisprudence (Usul), it will be demonstrated in the article that there is no objection to a justiceship of hermaphrodite. As well, from a jurisprudential perspective, we do not have a specific criterion with regards to an intermediate or problematic hermaphrodite (khuntha mushkila) so as to rely on while drawing out a conclusion. Therefore, we should inevitably conduct a research and an inquiry, for this purpose, into the principles of jurisprudence.

Protectorate of the children without guardian is an ethical and God-favored work which cause that such children experience the warm center of family, but since children without guardian don’t have any natural relationship with child adopting parents, they have only a legal relationship no privacy is established between them; in terms of juridical commandments, It is the possibile the marriage of the guardian with the child who he has adopted, although such act by change of the look in the individuals towards guardianship of children lacking protector from a charitably act to a profiteering act and creation of agitation in the mentality of the child herself and the society to convert from a fatherhood - childhood relationship in to marriage relationship, is contrary to good morals and the public policy of society. In this research we seek to consider juridical resources, we examine the possibility of extinguishment such marriage right with the adoptedchild” as a juridical solution. Although the two points of view about extinguishment” and “ non-extinguishment” of the marriage right of the guardian with the adoptedchild between Muslim jurisconsults, but considering its documentations confirms the second point of view, since marriage, the same as custody, in one way is judicial sentence.