Studies of Islamic Jurisprudence and Basis of Law
Year:2023 | Volume:17 | Issue:48|Papers Count:12

Tradition after the Holy Quran, the second boiling spring of rules and knowledge, has experienced many events during its life. The existence of causes such as situation, distortion and taqiyyah, etc. in the occurrence of differences between the news, has made it necessary to critique and study the narrations, which Muslims have paid attention to from the very beginning. A look at the fundamental books of the ulema from the past to the present shows the emptiness of dealing with many effective issues in the way of interacting with the narrations, despite following the generalities of the conflict; Including the "conflict between the weak news document of the well-known practice and the correct news of the document" which is dealt with in this article in a descriptive-analytical method.conditions of authenticity and prioritize it over the weakness of the document practiced by the scholars. Others, taking into account the application of the arguments of the authority of the single news and not daring to oppose the famous, took the path of practical caution and stopping in the position of opinion. From the point of view of a symmetrical system in the validation of narrations, it seems more correct to present a weak hadith of a well-known document on the authentic news of the document in resolving the mentioned conflict.

According to Iranian criminal law, Afghanistan and Imamieh jurisprudence are one of the conditions for the realization of murder that the perpetrator intended to murder a particular offender and achieved his goal. However, in cases such as murder in the belief that Mahdoraldem was in spite of the conditions for murder, Imami jurisprudents and the Iranian legislator have considered it involuntary homicide. The main issue of this study is that from the perspective of criminal law of Iran, Afghanistan and Imami jurisprudence, in what case does the belief and belief of the perpetrator affect the psychological element of murder, it causes its change from intentional to unintentional? The aim of this study was to investigate the effect of contrary belief on the psychological element of murder in Criminal Law of Iran, Afghanistan and Imamieh Jurisprudence. For this purpose, analytical-descriptive research method with a bookhouse approach has been used. The obtained results indicate that according to Imami jurisprudence, in two cases contrary to belief, it changes the psychological element of premeditated murder to pseudo-intentional. One is a mistake in the subject of crime, whether his belief is conventional or unconventional. The other is a mistake in ruling the issue, if his belief has been achieved through conventional means. Iran's legislator has also accepted this by following Imami jurists. But in Afghanistan's criminal law, the thematic mistake and the wrong sentence resulting from the wrong belief of the perpetrator change the murder to pure error.

Occasionally, there is a condition as a sale contract in which, if the buyer has a violation in paying the price, the seller has the right of cancellation of the contract. One could ask what is the substance of this condition and its option and what is the effect of the condition? Are a contract with a transfer nature that the buyer concludes is valid? If the seller rescinds the first contract by virtue of a violation by the buyer, is the restitution of the object of sale in a subsequent contract possible? By analytical-descriptive method and from legal and jurisprudential view, this research tries to come out answers to these questions and scrutinize Supreme Court No.810. This research shows that the description of the above-mentioned condition as the condition of option and option of the unfulfilled condition have fewer objections. Of course, the decision is silent about it. Although there are different legal and jurisprudential views about the effect of condition on subsequent contracts, the subsequent contracts are valid unless otherwise inferred from the reflected intention of the parties of the first contract. According to the decision, the restitution from subsequent assignees is subject to the parties' intention to the first contract.

One of the controversial challenges among the jurists is the possibility of the flow of the right of shafea in the sale of cucumbers. Many Imami jurists have accepted this issue absolutely, but some only accept it where the customer has cucumbers; they accept Sunni jurists have also considered the right to intercede if the client has a choice, although some have made it dependent on the fate of the marriage. Therefore, many views have been expressed in the conflict between the actions of the cucumber and the right of intercession. According to Article 814 of the Civil Law, the right of intercession is accepted in the sale of cucumbers; Whereas, according to articles 33 and 34 of the registration law, the right of intercession is not established in the sale of cucumbers, and the flow of the right of intercession in the sale of cucumbers is hindered.Therefore, in this research, different viewpoints and sayings in Islamic jurisprudence and subject law were presented and evaluated. With analytical, critical and ijtihad methods, it was found that there is a possibility of the right of intercession in the sale of cucumbers; with this detail that in the case of applying the option before obtaining the intercession; The right of intercession is lost; However, obtaining intercession before applying the cucumber depends on determining the fate of the cucumber.

The issue of fraudulence in the law and its effects, both in domestic law and in private international law, is one of the challenging issues, and due to the silence of the legislator, there are various points of view about it. One of the points of view about the invalidity of the fraudulent act is the result of the lack of the order of the intended effects on it, and to prove his point of view, he has cited the theory of the illegitimate direction, which has been reflected in Articles 217 and 218 of the Civil Code. Investigating these two articles, especially about their jurisprudential base and comparing and matching them with the issue of fraudulence, this article has concluded that, firstly, due to the basic conceptual and factual differences between "illegitimate direction" and "fraudulence against Law", logically, these two articles cannot be cited to discover the decree of fraudulence. Secondly, even if a reference is considered, neither the point of view of nullity of the fraudulent act nor other points of view can be used from these two articles. However, the new point of view of "the suspension of the fraudulent act" is used in these two articles.

An active or a neutral role for the judge regarding the issues is rooted in the acceptance of the originality of the individual or the community. In Article 156 of the Constitution, the middle theory is accepted and the judiciary is supporter individual and social rights; But the legislator in article 199 of the Civil Procedural Law like the followers of the community originality, allow the judges conduct any investigation. Despite the above article, there is disagreement regarding Tahsile Dalil. The question of the current research, which is written with descriptive-analytical method, is about the possibility and conditions of Tahsile Dalil. If there is incomplete evidence in the case and the Tahsile Dalil doesn't conflict with other regulations, the judge is allowed to do so in civil cases. In criminal cases, the judge is allowed to Tahsile Dalil, except for those related to Allah rights. Despite the lack of clear opinions of jurists regarding the Tahsile Dalil; But in jurisprudence, some reasons point to the necessity of justice and others point to the impartiality. In some jurisprudential opinions have been emphasized justice to the extent that the judge is not exposed to the accusation of partiality, which is a good theory. Imam Khomeini didn't explicitly comment on the Tahsile Dalil; But he pointed the impartiality of the judge, and on the other hand, he emphasized the necessity of discovering the truth; so we can consider the selected theory about the Tahsile Dalil to be consistent with the Imam's opinion.

The inference of jurisprudential rulings is directly related to the manner in which their arguments are implied. Among the various meanings, obligatory signification is of great importance, which should not be neglected. There are various obligatory implications for discovering the rules of Sharia, some of which have received less attention. The present article seeks to answer the question with a descriptive and analytical method, what specific position can be assigned to the issues related to this meaning in the discussion of the arguments and Hajj of Sharia? For this purpose, first, the cases of obligatory implications effective in inferring the jurisprudential ruling, such as obligatory implications between specific meanings such as concepts, expressive meanings such as some contextual and non-implicit implications such as the opposite of propositions, have been fully investigated along with jurisprudential examples. A new divisional proposal, the place of the design of these issues, is shown in the middle of the discussion of Sharia Hajj.

The confrontation between Iran and America began in 1979 with the victory of the Islamic Revolution in Iran. This is one of the most important issues that have been discussed at the global level, or at least it is considered a sensitive issue in the Middle East region. This confrontation can be examined in two areas of war and sanctions: in the war, the United States, with its all-out support for Saddam against Iran, sought the fall of the Islamic Republic during eight years of imposed war, during which Saddam committed all kinds of crimes (war crimes, genocide... ) committed The use of chemical and biological weapons against Iranian forces and the Kurds resulted in unforgettable crimes, the clear example of which is the Halabja crime. At the end of the war, America directly entered the fray and targeted Iranian oil platforms and ships. The last crime of the US was the killing of 290 passengers of an Iranian passenger plane over the Persian Gulf by the USS Vincennes. Finally, this process led to the acceptance of Security Council Resolution 598 by Iran, which was not recognized as an aggressor country in the Iraqi resolution. And in the field of sanctions, the US first froze more than 12 billion dollars of Iranian assets in 1979, and the US Congress allowed the amounts to be confiscated. This embargo policy started during the Carter era and was intensified during the Clinton era with Ilsa's embargo in Congress. America was able to impose Security Council sanctions on Iran during the presidency of Mr. Ahmadinejad

The Ghadeer Sermon is the most important document of the authenticity of the Ahl al-Bayt school, in which the Holy Prophet spoke in detail about his succession.His words in the farewell speech and in the midst of the crowd are the most important and complete sermons that he, Ali and the imams after him introduced as their successors.This research was carried out in order to achieve the hypothesis that the rules of political jurisprudence derived from this sermon can be considered as useful and useful principles for the administration of Islamic government.This article collects information with a library method, and the data analysis used in this research is a descriptive-analytical method.The analysis of Ghadeer's sermon from the point of view of jurisprudence and politics is a new look at this sermon that has not been addressed so far, and this type of view can be a starting point for the analysis of other sermons from this point of view. This research shows that the most important jurisprudential-political rules and pillars are included in this sermon, and therefore it can be claimed that this sermon is the most political sermon that the Holy Prophet delivered during his 23 years of mission.Discussions such as the necessity of forming a government, observing the expediency of the righteous in order to preserve the essence of Islam, cooperation, under which the role of the people in the formation of the government and their political participation are discussed; It is among the results of this research.

The holy shari'a of Islam passes the competition in obtaining property through two legal and moral filters and has set special legal and moral rules and regulations to make the competition in obtaining income healthy. Islamic law considers the limitation of my right, including the right to compete, to be the loss of individuals or society, and according to the no-harm rule, the trader's right to compete can be restricted against losses resulting from illegal competition. Although commercial competition is not inherently prohibited by law and does not preclude individuals or legal entities from competing for income, care must be taken not to use one of the forbidden practices. One of these examples is acquisition through actions that are themselves haram, in which some forms of illegitimate competition can be examined. Also, according to Islamic jurisprudence, the prohibition of voiding property as a general rule is valid in all financial areas, including the environment of commercial competition, and the prohibition of illegitimate competition can be justified based on this rule

The derivation of a jurisprudential ruling in a certain path and mechanism sometimes faces challenges that the mujtahid must find a solution to get out of it and complete the issuance of the ruling. One of these challenges is the conflict between a narrative reason and a rational reason, the mechanism of reaching its conclusion is the problem of this research, and since it does not have a rich background, it is also an indicator of the novelty of this article compared to similar works. This research in the interdisciplinary geography of jurisprudence and principles, and in a descriptive, analytical way, the process of how to overcome the challenge of the conflict between narrative reason and rational reason has been the focus of its main question. The findings of this research show that in the conflict between narrative and rational reason, if the narrative reason is valid, in the assumption of conflict with unnecessary rational reason, the narrative reason takes precedence, and if the rational reason is one of necessity and certainties, then the rational reason takes precedence over the narrative. The Usulists of Ahl al-Sunnah have a consensus that in the conflict between qiyas and single news, if it is not possible to combine them, the reason of suspicion is preferable; But they differ on which one of these two is preferable; But from the Shiite point of view, due to the inauthenticity of "Qiyas", such a conflict does not arise.

Abstract:In the present century, due to the increasing technology and communication of more nations, intellectual property is very important and intellectual phenomena are considered not only as a knowledge, but also as capital. Therefore, considering their economic value and source of income, consequently, the transfer of these rights is also part of the legal issues. In the present study, while examining the legal and jurisprudential meaning of intellectual property rights and the nature and effects of these rights, the views and documents of Shiite and Sunni jurists as well as jurists have been expressed. One of the main examples of these transfers is the forced transfer of these rights, which occurs due to the death of the creator. But among the jurists, this issue has been addressed in the new issues and referendums; Examining the theories expressed, it can be seen that most jurists, both Shiites and Sunnis, have acknowledged the legitimacy of intellectual property rights and, based on the fact that these rights are among the financial rights and interests and are accepted by custom, it can be transferred to The heirs know.