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List of Articles
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Open Access Article
1 - Diya for Women and the Legal Policy of Iran: From Commitment to the Principles of Islamic Jurisprudence (fiqh) to Human Rights Standards
Ghader Ahmadi Ahmad Moradkhani Sayyad Mohammad Mahdi Ahmadi Aliraza AsghariThe obligation to compensate for the damages incurred on individuals is regarded as one of the most important principles of Fiqh and Law, and the bodily harms to women are included among compensable bodily damages. In case of harm, a financial compensation known as Diya MoreThe obligation to compensate for the damages incurred on individuals is regarded as one of the most important principles of Fiqh and Law, and the bodily harms to women are included among compensable bodily damages. In case of harm, a financial compensation known as Diya is paid to the injured person, while in the pre-revolutionary laws of Iran, no reference was made to such financial compensations for damage. But with the victory of Islamic revolution and adopting of the Constitutional Law, an appropriate ground was developed for the judicial system of Iran to be adapted with Islamic legal principles as well as with the Shi'a Twelver doctrine. With the enactment of the Diyat Law, the amount of Diya for women was reduced to half the amount of Diya for men, in some cases. Due to the perception that exist about Islam enjoying a perfect legal system and assigning a fundamental role to women as well as the international adverse publicity of the ongoing law, the Legislature proceeded to resolve the problem of inequity of Diya for women and men re-codifying the Islamic Penal Code, enacted 2013, in order to disregard the gender for damage compensation and to observe the international norms. The legislators introduced the law that the government has to pay the balance of inequity of Diya for women. Manuscript profile -
Open Access Article
2 - A Reflection on the Legitimacy of Tax on Gift Based on Islamic Jurisprudence
Abdollah Bagheri Sayyad Mohammad Sadegh Ahmadi Gholam Hossin MasoudPrivate property is an important issue being discussed in Islamic jurisprudence and law and can be investigated from various perspectives. One such issue is the tax imposed on individuals’ assets and income including the tax on gift which, according to the Direct MorePrivate property is an important issue being discussed in Islamic jurisprudence and law and can be investigated from various perspectives. One such issue is the tax imposed on individuals’ assets and income including the tax on gift which, according to the Direct Taxation Law, individuals are bound to pay. The present descriptive-analytical research probes into the legitimacy of its collection and restrictions imposed on it based on fundamentals of Islamic jurisprudence. The results reveal that, regarding the principles of Islamic jurisprudence on the legitimacy and boundaries of tax on gift, the related positive laws might require revision in terms of the specified amount of tax and the failure to mention a case where the issue of gift is a requirement for the life of the party receiving the gift as an instance of exemption of tax on gift. Manuscript profile -
Open Access Article
3 - An Investigation of Judicial and Legal Principles of Murder Par Omission in the Law of Iran with a Consideration of the Common Law Legal System
Hmzeh Baygi Harbagh Kumars KalantariMost jurisprudents believe that murder by omission gives rise to liability for the doer of the action in case of intent and with the assumption of capability. Jurisprudents have studied murder by omission (failure to act) under different rules of jurisprudence, such as MoreMost jurisprudents believe that murder by omission gives rise to liability for the doer of the action in case of intent and with the assumption of capability. Jurisprudents have studied murder by omission (failure to act) under different rules of jurisprudence, such as the no loss principle, beneficence (Ihsan) and causation (Tasbib). There are, however, different comments on the issue. Despite developments and changes established in the law of Iran at different legal periods, there was no clear regulation regarding the criminal liability of the person who failed to act (Tarik), until by virtue of paragraph 1 of the unified article the law for the refusal to provide assistance to injured persons and to eliminate the risks of life in 1354, this issue was subject to legislative prediction; on the other hand, in 2013, pursuant to Article 295 of the Islamic Penal Code of 1392 and according to the present conditions in the aforementioned article, the person who failed to act is held to have criminal liability. In some countries, based on common law, the criminal liability of the person who refuses to act is relatively admitted; in countries under common law, omission is considered as a material element only when there is a legal requirement and responsibility to act and failure to act leads to the commitment of the crime. Manuscript profile -
Open Access Article
4 - A Study of the Problematic State of Full Growth Age in Nonfinancial Matters in the Law of Iran
Alireza Poursmaeli Mohammad AbediAfter the Islamic Revolution in Iran, article 1210 of the Civil Code was amended and full and growth age, set at 18, was replaced by puberty age of 9 for girls and 15 for boys in lunar years of Islamic calendar. This amendment has resulted in conflict between regulation MoreAfter the Islamic Revolution in Iran, article 1210 of the Civil Code was amended and full and growth age, set at 18, was replaced by puberty age of 9 for girls and 15 for boys in lunar years of Islamic calendar. This amendment has resulted in conflict between regulations. The Supreme Court has attempted to solve this conflict and in its decision No. 30-23/12/1985, along with puberty, has required the confirmation of full growth age in financial matters. While in nonfinancial matters, puberty age alone has been considered sufficient, and girls or boys who reach the age of puberty, 9 and 15 respectively, can decide for themselves independently in nonfinancial matters such as their education and the change of their family names. This claim, due to its negative effects and consequences, must be restricted. Additionally, different ages have been referred to in civil law and attempts must be made to overcome such controversies. This paper attempts to introduce one single age as growth age in nonfinancial matters and seeks to harmonize the probable conflicts between regulations based on the benefits of the society and the individuals. It is concluded that, based on the single-clause article concerning growth age of the parties to a contract, 18 must also be considered as the presumption of growth in nonfinancial matters. Manuscript profile -
Open Access Article
5 - The Juridical and Legal Study of the Alternatives to the Sale of Salaf Oil Securities in Secondary Market
Abdolhosen Shiravi Hadi RahmaniSelling Salaf commodity before maturity is forbidden by Islam, so making a secondary market for these securities is not possible within common procedures. Hence we have to find a new way to make a secondary market for these securities. Some proposed ways are parallel Sa MoreSelling Salaf commodity before maturity is forbidden by Islam, so making a secondary market for these securities is not possible within common procedures. Hence we have to find a new way to make a secondary market for these securities. Some proposed ways are parallel Salaf, assignment through agency and Solh of Salaf commodity, all of which have shortcomings that puts the formation of secondary markets in trouble. Combination of parallel Salaf and assignment (Havaleh) seems to be the most complete proposal, yet there are still many problems with it. This study attempts to challenge them and another way that is considering securities as Circulating Rights. Circulating Rights is a matter that is considered in foreign law systems and is not compatible with Islamic Jurisprudence rules. But we can somewhat accept this rules in our system when combining them with Islamic rules. Manuscript profile -
Open Access Article
6 - The Philosophy of the Exercise of Restrictive Punishments under the Criteria of Discretionary Punishment
Mohammad Hadi Sadeghi Javad RiahiAccording to the sources of Islamic jurisprudence, expediency of judge in the selection of discretionary punishment means that the judge should choose the best reaction by considering the criteria related to three elements of crime, victim and criminal. Therefore, the e MoreAccording to the sources of Islamic jurisprudence, expediency of judge in the selection of discretionary punishment means that the judge should choose the best reaction by considering the criteria related to three elements of crime, victim and criminal. Therefore, the examination of these elements demonstrates the reactions that may be chosen. The present study, using a descriptive–analytical method, has examined criteria related to those elements and has found out that the consideration of the criteria and norms of discretionary punishment, sometimes, necessitate the exercise of the restrictive punishment as the most advisable and the most effective reaction. Therefore, judges should determine restrictive punishment in appropriate cases and legislator and judicial directors should guide and conduct judges to exercise the restrictive punishments in those situations. Manuscript profile -
Open Access Article
7 - Punishment of Abetment of the Type of "imsak" in Shiite Jurisprudence and Criminal Law of Iran
Aboulfazl Alishahi Ghalahjoughi Esagh KaremiOne of the special instances of abetment in crime against individuals is "imsak" or holding a person to enable a third party to kill him; of course it is not only the crime of killing in which "imsak" is regarded as abetment in a crime, but it can also be found in such MoreOne of the special instances of abetment in crime against individuals is "imsak" or holding a person to enable a third party to kill him; of course it is not only the crime of killing in which "imsak" is regarded as abetment in a crime, but it can also be found in such crimes as kidnapping, theft, assault and battery, unlawful imprisonment and arrest. Although the punishment of abetment in crime is in general included in Articles 127 and 128 of the Islamic Punishment Law, "imsak" in murder cannot be an instance of these two articles, because the beginning part of Article 127 states that the punishment under this article includes the crimes for which no penalty has been determined in Sharia and law, while in Sharia the punishment of the abetment in murder has been determined and Shiite jurists have regarded "life imprisonment" as the punishment for the abetment in murder. Logically speaking, too, a striking difference in punishment applicable to different examples of abetment is not justifiable; therefore a unique precedent must be practiced. This research is a fundamental study with an analytical-descriptive methodology. The main question is what strategy would be suggested for carrying out a punishment in abetment-related crimes, especially abetment in murder. This research, upon a review of the viewpoints of jurists and lawyers about the nature of "imsak", has come to the conclusion that the crime of "imsak" is of the type of crimes related to private rights and is therefore forgivable and negligible. Moreover, the views of those who have proposed special punishment for abetment in murder by the legislator have been more strongly justified. Therefore, in order to disambiguate the case in order to prevent the issuance of different verdicts for the similar offence and with regard to the necessity of the accord of all laws and regulations with Islamic principles, by virtue of the Fourth Principle of the Constitutional Law, the punishment of "life imprisonment" for the abetment in a deliberate murder is suggested to be included as a single article in the Islamic Punishment Law. Manuscript profile -
Open Access Article
8 - The Legitimacy of International Criminal Courts in Dealing with Environmental Crimes Caused by Oil Pollution from the Perspective of Islamic Jurisprudence
Housin Foroughenia Ali AshrafianEnvironmental pollution caused by petroleum is one of the issues which is spreading today and causing irreparable damages, while the domestic courts of some countries, especially Islamic countries, are not able to or are less willing to prosecute the cases beyond their MoreEnvironmental pollution caused by petroleum is one of the issues which is spreading today and causing irreparable damages, while the domestic courts of some countries, especially Islamic countries, are not able to or are less willing to prosecute the cases beyond their borders because of religious and legal barriers. Some of these crimes, especially environmental, are committed by the natural or legal persons of the Islamic countries or on the territories of these countries which have caused problems of jurisdictional conflict and other issues. The findings of the present study show that in the case of the exercise of international jurisdiction over the oil pollution offense, if the forensic investigators conclude that the investigation of such a crime would bring benefits to the Islamic Republic of Iran, such as bilateral agreements and acceptance, the legitimacy of referring disputes to the judgment of non-Muslims will be permitted. Therefore, this article examines the jurisdiction of international criminal tribunals in the cases dealing with environmental pollution caused by petroleum materials in the light of international law and present regulations in Islamic Sharia with a consideration of the theory of expediency set forth in Imamiyah jurisprudence. Manuscript profile -
Open Access Article
9 - The Scope of the Authority of the Judge in the Exercise of Punishment According to Penal Code 1392
Abbas Karemi Mohsen AkbariThe jurists have divided the Islamic punishments to variable and fixed punishments. On this basis, hudud, death (qisas) and blood money penalties are deemed to be fixed and discretionary punishments (tazir) are categorized in the second group. The general principl MoreThe jurists have divided the Islamic punishments to variable and fixed punishments. On this basis, hudud, death (qisas) and blood money penalties are deemed to be fixed and discretionary punishments (tazir) are categorized in the second group. The general principle in Tazir punishments is the individualization of the punishment. Therefore, according to the rule "Al-ta'zir bema yarah al-Hakim (penalties issued under of the discretion judges)", the judges have considerable authority in the exercise of punishments based on their discretions and expediency. The power of the judges to apply punishment is not confined to the jurisprudence, but also to the substantive positive law where the judge has also a considerable authority to enforce these types of discretionary punishments. For a precise understanding of this issue, it is necessary to answer a few questions: What does the above principle mean by the word "ruler"? How much is the authority range of the judge and what are the existing mechanisms in the exercise of judicial authority? In this paper, along with the recognition of the authority of judges in the exercise of discretionary punishments, concepts such as the judge and the scope of his authority and mechanisms for the exercise of authority according to the positive law and jurisprudence would be studied. Manuscript profile
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