https://hoquq.iict.ac.ir/ Islamic Law en daily 1 Thu, 23 Jul 2026 00:00:00 +0330 Thu, 23 Jul 2026 00:00:00 +0330 https://hoquq.iict.ac.ir/article_715454.html One of the components of divine sovereignty over society is the rule of divine commandments over the legal norms of society. Accordingly, and according to the will of the people, the constitution has also shaped the structure of the legislative system of the Islamic Republic of Iran based on the maximum sovereignty of the Shari'a (Article 4 of the Constitution) and has stated two patterns of compliance and non -compliance with the law.But given the conceptual scope of these two patterns, the question arises as to which pattern is the criterion for monitoring the laws? This article expresses an analytical and descriptive way that although the procedure of the Majlis and the Legal Doctrine has accepted the pattern of non -contradiction, the basic legislature, contrary to the claims of some experts in using this Two patterns have neither conflicted nor enthusiasm in legislation. This article believes that given these two patterns in the constitution, that is, in accordance with Islamic standards and inadequacy with Islamic law, a comprehensive interpretation of the principles can be a comprehensive interpretation of the principles. The constitution presented that the appliance of both patterns in the House of Representatives. Finally, the theory of this article is evaluated in accordance with the views of the jurists regarding the ratio of law and the law. https://hoquq.iict.ac.ir/article_715461.html Islamic countries have tried to match their legislation and legal system with the ideological and belief principles of their ruling political system. The ruling political systems in Islamic countries have taken various approaches when dealing with the issue of “adherence to a specific sect, narrative, or non-adherence to it”. Many Islamic countries (such as Saudi Arabia, Brunei, Malaysia, and Mauritania), despite taking a specific sect and narrative as a standard for their rules and regulation, trying not to go astray from the limits of a specific sect, when encountering international issues and observing social interests, have to some extent accepted the narratives of other sects. However, some countries have limited the right (the real sentence) to a specific sect of the Mazahib Arba’ah (The Four Sunni Schools) and provided some reasons to prove their claims. Among the most important reasons they provide is that they have limited the right (truth) to a specific school or schools. The present study, using a descriptive-analytical approach, tries to investigate the legal approach of Islamic countries in this regard, and after that, explain the reasons provided by the supporters of the limitation of standard fatwa to a specific school or schools, and then, criticize their reasoning. https://hoquq.iict.ac.ir/article_711690.html In many legal systems of the world, special judicial courts are an integral part of that country's judicial system, which has its serious opponents and supporters. In the Islamic Republic of Iran, a special military court is provided for in Article 172 of the Constitution, special courts for revolution and children are provided for in Article 294 of the Islamic Penal Code, and a special court for clergy is provided by the order of the leadership. Considering that the laws of the Islamic Republic of Iran must be according to the standards of the Islamic holy Sharia, this question is raised whether the formation of special courts in the process of Islamic proceedings has been considered (whether approved or prohibited) in Islamic sources? And if the sources do not refer to such courts, does its formation conflict with the basic principles of Islamic proceedings or not? The present article, while examining various contemporary and advanced historical and jurisprudential sources, proves that basically there was no effect and sign of special courts during the rule of the Prophet of Islam and Imams, and it was not paid attention to in the books of Shia jurists, but the formation of such courts with good reasons And observing the special and strict conditions in order to protect the rights of the victim and the criminal does not conflict with the important principles of Islamic judgment. https://hoquq.iict.ac.ir/article_713383.html Based on the Civil Code A.D. 1928, interest hypothecation is void in Iran's current legal system. However, quite a number of jurists and legal jurists have provided evidence against rejection of interest hypothecation and have even seen it valid and necessary. But none of them have so far presented any details, effects, and rules of the aforementioned institution. Therefore, it is essential to further investigate interest hypothecation, especially considering the different nature of this kind of hypothecation from object hypothecation with regard to contract conditions, effects, and rules of it.Putting all this together, and while agreeing with idea of the aforementioned group of jurists and legal jurists, this study (of course now in the stage of "conclusion") was an attempt to offer the legislator a system to govern mortgage of interest, thereby properly determining the legal details of it and subsuming it under the Mortgage Contract (not Article 10 of Civil Code) along with its effects and rules. Indeed, it will be a proposed institution to improve the perspective of Iran's legal system in wich the corollary will be the acceptance of interest mortgage https://hoquq.iict.ac.ir/article_715460.html In this research, by using the descriptive-analytical method, using legal books and looking at the judicial procedure, an attempt has been made to examine the principles of the principle of hearing a lawsuit and the effects of applying this principle on the concepts and persons involved in the lawsuit. Examining these cases will be of great help in understanding the principle of hearing the case and how to use it. The Imami jurists have categorically spoken about the necessity of hearing the lawsuits and have tried to make the lawsuits heard as much as possible. In addition to the jurisprudential basis, observance of public order, society's demand, the need to preserve the government's sovereignty, reason and the origin of the demand for the fundamental right to litigate, the legal and social bases are the basis of hearing the lawsuit. The principle of hearing a lawsuit as a procedural principle has a direct and undeniable impact on the law, judicial procedure, doctrinal opinions, the government, society, the judge and the surroundings of the lawsuit. https://hoquq.iict.ac.ir/article_715455.html In the contemporary world, the methods of committing crimes, including crimes related to financial corruption, have become increasingly complex and have made countries face serious problems in fighting them. In this regard, the experiences of many countries in the field of fighting against corruption emphasize the necessity of shifting the burden of proof in these crimes. The following article, relying on the analytical-descriptive method, while addressing the general reasons for the necessity of this shift, including the lack of agility of traditional approaches in dealing with this category of crimes, the necessities of social and human rights, and the specific reasons related to the nature of the crime. And the characteristics of the perpetrator and the victim, the standards governing the shift of the burden of proof, including the scope of changing the threshold of proof and compliance with the principle of equality of arms is taken into consideration in criminal proceedings. In the end, while studying examples of the burden of proof in crimes such as money laundering in the law amending the anti-money laundering law, as well as illegal possessions in the law on the addition of articles to the law on the implementation of Article 49 of the Constitution, the conclusion was reached that The Iranian legislator's approach to this transfer has always been with precaution and has tried not to face the problem of ignoring the principle of innocence. Albeit, by determining the legal emirates in the relevant criminalization and citing the primacy of the emirates over principles, the society can benefit from the interests of shifting the burden of proof on the accused in corruption-related crimes. https://hoquq.iict.ac.ir/article_713256.html The visibility of political systems based on Islamic ideals in the contemporary era has led the minds of the searchers to explain how these systems are treated with Islamic principles. In the current era, there are few countries that have a majority Muslim population and the ruling political system even seems to have its own adjective of Islam in face, but in the legal system of these countries there is no trace of Islamic law. However, regardless of the various types of communication between religion and government, one of the most important and most sensitive positions that reflect the behavior of countries with Islamic laws is current laws in countries, especially criminal and penal laws. The present article examines the legal systems of the four countries of Iran, Iraq, Saudi Arabia and Egypt, focusing on the models of communication between the Sharia and the legal system, so that the entry or non-entry of Islamic rulings into the criminal law of each one is clarified. In this article have been considered Iran and Iraq as two main sites of the Shias of the world with different legal systems, as well as Saudi Arabia and Egypt, as two powerful and influential Sunni stances, though distinctly different from each other. https://hoquq.iict.ac.ir/article_713386.html The family law approved in 2013 defines the issue of refusing to perform duties related to custody as a criminal offense. The term "refusal to perform prescribed tasks" in relation to custody has three basic forms, the processing of which is the main topic of this article. First, the meaning of abstinence is to completely leave the custody and abandon the child. While what usually and often happens in practice is negligence in custody or incomplete performance of duties related to custody, therefore, the legislator should use a more comprehensive and comprehensive term negligence in custody, which includes the refusal of custody by analogy with priority.In general, the induction in the laws shows that the lawmaker's criminal policy in the matter of custody is to separate some important cases and criminalize them with different punishments in the Islamic Penal Code and the special child protection law, and in the next step, with general criminalization in the family law. In parallel with the guarantee of legal enforcement, by adopting a repressive approach, he has benefited from the 8th degree monetary penalty, which not only does not fit the nature of custody, but also does not create a favorable deterrent due to the selection criterion, therefore, it is necessary for the legislator to amend the law to be more efficient than the punishment. and social use. https://hoquq.iict.ac.ir/article_715453.html Morals are the fundamental values on which majority of a community are agreed based on norms and beliefs. Morals are principles such as: good faith, honesty, commitment to cooperation, lack of deception, fairness, justice, loyalty and non-discrimination. Ethics is inner which leads to utility, reduction of transaction cost, wealth maximization, efficiency and welfare by building trust, averting opportunism and, optimized commitment to obligation. It would be too expensive to apply for a contractual guarantee; to adopt a mutual strategy, which is sometimes against the initial incentives of conclusion, and an effort to gather more information in order to prevent the other party's opportunism. It seems that including explicit non-law clauses, such as duty of respecting morals in order to prevent opportunism, is not only regarded as a means of internalizing the costs and but also as a sequel of such measures, it comes with fall in transaction costs and rise in contract efficiency. Adhering to morals in contracts and adhering to them can lead to contract performance by reducing contract termination, breach of commitment, renegotiation, contract adjustment, moral hazard and adverse selection. Without consideration of the utility of exchange, as a cross between justice and efficiency, the commutative justice will be violated, because the inefficient contract, won't be fair either. https://hoquq.iict.ac.ir/article_715457.html Bribe offer is one of the important issues that provides the basis for corruption and white-collar economic crimes. Nowadays, economic corruption has attracted the attention of national and international societies due to its destructive effects. In the regulations of the Islamic Republic of Iran, despite the adoption of the Merida Convention, which emphasizes the criminalization of the offer and promise of bribery and its members are obliged to implement it, not only is the promise and offer of bribery not criminalized, but there are many shortcomings such as restrictions on the issue of bribery. And its extent exists in terms of government officials and public and private sectors, natural and legal persons, and even in the criminalization of bribery in terms of Rashi and Mortashi. This article is based on the descriptive and analytical method by referring to jurisprudential and legal sources in order to prove that the evidence for banning bribery is general and includes offering bribes in corruption and white-collar economic crimes, and the issue of bribery is not just money, and its scope includes affairs It is financial and non-financial, and the exceptions to bribery and cases of bribery permissibility are specifically out of the scope of exceptions due to the nature of white-collar economic crimes. https://hoquq.iict.ac.ir/article_715458.html There are two approaches of "mandatory or appropriateness" to prosecution and punishment. While the United States and the United Kingdom have the least benefit from the necessity of prosecuting security crimes; France has taken into account mandatory prosecution in criminal matters and appropriateness in misdemeanors with an intermediate situation. The current study, with descriptive and analytical methods, tries to explain the integrated approach of Islamic law to the central role of the "principle of expediency" in the issuing of sentences and the targeting of "security criminal reformation". However, in Iranian laws, security crimes are usually the first option to be exempted from arafaqi rulings; However, the government decree dated 11/16/1401 amnesty and reduced the wide punishment of the accused and security convicts issued by the Supreme Leader (Madazla-ul-Ali) following the unrest of 1401 and the decree of general amnesty of Imam Khomeini (RA) on the eve of 1359 can be a confirmation of the possibility Review and change the approach of normal criminal laws in this field. The proposal of introducing explicit and separate criteria, such as consideration of positive records and background of people or maximum attraction - especially about accidental and emotional criminals in light security crimes - can be an optimal model for revising and reforming populist criminal approaches and changing towards the usefulness of punishments. https://hoquq.iict.ac.ir/article_718494.html Although the possibility of revocation of the right is considered as one of the inherent characteristics of the right. But for a long time, there have been doubts that the owner of the right can take action to revoke the right before it is created. And canceling a right that does not exist yet has been considered against rational requirements. So much so that the rule of " invalidity of waiver of non existent rights " has been cited as a "certain rule" in the words of jurists; But gradually, the tendency to correct the " invalidity of waiver of non existent rights " and limit its scope has found more believers among the jurists. Some jurists have considered the revocation of the right based on the assumption of the existence of a right to be out of the rules and correct, and others have considered the revocation in the sense of prohibiting the creation of the right and seizing the cause as reasonable. A number of other jurists have also considered the condition of fall of right and choice as a condition of the result as correct and outside the scope of " invalidity of waiver of non existent rights rule. In Iranian law, according to some legal articles related to revocation of options or forgiveness of the doctor, as well as the favorable opinion of contemporary jurists, revocation of the right before its origin can be considered justified and acceptable in many cases. https://hoquq.iict.ac.ir/article_718495.html Ownership of water and how to use it is one of the issues that have always been discussed among jurists. The three common views on this issue are: private property, public commons and enfal. The jurists who accept the permissibility of some types of water, in case of acquisition or restoration, believe in private ownership, and in contrast to the jurists who believe in public commons, do not accept any private ownership of water and only prove the right of priority for the acquirer or restorer. In the two cases of public commons and Anfal, the exploitation management is in the hands of the Islamic government and it must determine the way of exploitation of the people based on the interests of the society. By examining the evolution of the sayings of the jurists from the ancients to the contemporaries, it can be seen that the views on water ownership and its exploitation with the increase in water consumption and the emergence of new methods of water extraction have tended to change from private ownership to public commons and anfal in a way that contemporary jurists In Article 45 of the Constitution, waters are recognized as public assets. This change of approach can also be followed in the legislative literature; In such a way that from 1985 to 1995, the approach of private ownership was governed according to the constitutional law, and from 1999 to 1999, the approach of legal development of water resources started from private ownership to public ownership, and finally in 1997 in Article 45 of the Constitution and in 1999 In the law of equitable distribution of water, the approach of public ownership is maintained as an approved law. https://hoquq.iict.ac.ir/article_718496.html According to the law, in cases where the fetus has abnormalities and is lifeless, causing unbearable distress to the mother, abortion is permitted. However, after the soul is breathed into the fetus, it gains the right to life and there is no preference given to the mother's life over the fetus, except in cases where the death of the mother would result in the death of the fetus. However, in cases where carrying a healthy fetus would pose significant difficulties for the mother, the permissibility of abortion, even before the breath is given to the soul, is ambiguous and unclear under the law . In order to resolve ambiguities, one may refer to the opinions of experts in religious jurisprudence. Due to the lack of sufficient evidence for the prohibition of abortion, some religious scholars have aligned themselves with the permissibility of abortion. This goes against the previously established rule of therapeutic abortion, expanding the permissibility to cases involving the health of the fetus. However, since the concept of "health" does not have a clear and definitive criterion and various opinions exist within religious jurisprudence, it is preferable to amend the law and seek clarification rather than relying solely on religious jurisprudence. https://hoquq.iict.ac.ir/article_718497.html Abstract"Any decrease in wealth, health, knowledge, position, reputation, peace, and comfort" means loss. Scholars and jurists have not defined the meaning of harm relative to material things, and even specified some spiritual cases such as damage to honor and dignity. "Any harm from anyone, to the non-material dimension of human beings individually, collectively and socially" will be a spiritual harm."Combating in kind" is a kind of defense and a kind of response to the initiating action, and it is considered a kind of punishment for the aggressor, therefore it is possible to waive this right.Is it possible to "fight like a match" in spiritual affairs? If spiritual harm has been done through a haram act, can it be countered through a haram act? The majority of Imamiyya jurists have not issued permission for the haram verb as "combating like". https://hoquq.iict.ac.ir/article_718498.html In a law-abiding society, issuing documents represent the extent of that society's adherence to justice and fairness by the ruling judicial system. Controlling and monitoring the legal implementation of this process, which is crystallized in issuing documents, is one of the duties of the judiciary. This duty is done through the supervision of the Supreme Court on the Talley Court. The main challenge and problem of the article is the issuance of undocumented and unsubstantiated opinions by some judges. The writing of a well-reasoned and documented document by the Tali Court enables the Supreme Court to monitor and evaluate the operation and decision of the Tali Court in such a way that the obligation and commitment of the judges to "reasoning" and "citations" in issuing the document and its justification, It is the most important guarantee that the advanced legal systems seek to institutionalize to control and monitor the documents issued by the judicial courts. The purpose of the present research is to explain the methods of supervision and control over the documents issued by the Tali Court by the Supreme Court. The method of the present writing is descriptive-analytical, which was made using library resources. https://hoquq.iict.ac.ir/article_718499.html The legal system of the Islamic Republic of Iran, like any other legal system, strives to guarantee some fundamental values, and since the constitution is the highest document in any legal system; The mentioned values can be sought through the norms of this great document. Considering that the foundations of a legal system are considered as the origin of its departure and the purposes are also considered as the destination of its departure; The reflection of these values along with the foundations and purposes of the legal system is bolder and more serious. Based on this, this article tries to identify and formulate the Constitutional values hidden in this system of fundamental rights by using the qualitative content analysis method. Finally, as the result of this article, it can be said that the Constitutional legislator values the rule of Sharia, the rule of the people, the independence of the powers, controllability, non-discrimination against the law and guaranteeing the cooperative economy in the field of fundamentals, and also in the field of purposes, fairness and justice, unity and solidarity. Nationally, it has paid attention to preserving the Islamic system, creating a favorable environment for the growth of human beings, as well as political, economic, cultural and social independence. https://hoquq.iict.ac.ir/article_718500.html The general rule is that the parties to the contract are subject to the principle of sovereignty of the will and its independence. However, recently in Scandinavian countries, unwritten principles such as the duty of loyalty have also been cited, which mainly means that; "The parties must consider each other's interests and expectations in a reasonable and conventional manner, without unreasonably neglecting their own interests", which is defined as limiting the contractual freedom of the parties, and the violation of this duty has the same effects and consequences as the violation of the contract. Indeed, one of the common principles in the field of contract law in the Nordic countries is the commitment to Loyalty, which is defined as a requirement to consider or even take care of the interests of the other party. Reflecting on the background of this obligation tells us that due to its compatibility with conscience and human nature, from the distant past, the contracting parties followed it not according to the law, but according to ethics and fairness in their transactions. In jurisprudence, the results and The duties of this duty can be inferred from the topics of misrepresentation, gash, najsh and Receiving caravans. From the point of view of jurisprudence, the contents of commitment to loyalty can be deduced from the collection of Quranic verses and hadiths, and its traces are evident in concepts such as Misrepresentation, percentage or murabaha, najsh, rule of prohibition of detriment and Receiving caravans and In Iranian law, it can be based on Article 279 of the Civil Code or the Lesion Optionon mentioned in Articles 416 and later of the said law and the defect of Article 422 and later of the same law. https://hoquq.iict.ac.ir/article_718501.html The issue of change of physicality and its consequent effects is one of the emerging issues that the jurisprudence and legal community is still suffering from support and implementation challenges related to it.Gender change shakes various works related to the rights and duties of couples. Among them are the rights related to alimony of people related to it, including spouses and children. On the other hand, considering the lack of allocation of Iran's legal texts in the search, the answer may be found in fatwas and original jurisprudential sources. In this search, which has been done with a descriptive and analytical method, it is possible to consider aspects and surroundings of possible doubts by comparing it with Hanafi jurisprudence, which has theories about the current issue.Therefore, with this approach, we noticed the difference in this field between Imamiyyah and Hanafi jurisprudence of Sunnis, which needs to be analyzed. In this regard, the jurists of the Imamiyyah consider the rights related to alimony to the first husband without distinction due to the connection with the sperm, and they consider the change of gender to the wife as long as the marriage survives and before the annulment of the marriage, and to the children as well, as if they are obligated to alimony. In Hanafi jurisprudence, they have two opinions by differentiating between sexual and gender change or spiritual and gender change.the nullity of the marriage from the first day due to the discovery of the opposite sex and contrary to the intention of the parties, they consider the child without lineage. But in the spiritual change of physicality, while considering the nullity of marriage, they consider the alimony of the persons liable to alimony to be settled and the lineage established. https://hoquq.iict.ac.ir/article_718502.html In Article 1043 of the Civil Code, the lawgiver has defined virginity in girls as the criteria for asking the guardian in the marriage contract, even if they are mature and mature; The opposite concept of the mentioned legal article brings to mind the suspicion that virgin girls are exempt from this requirement; As a result, the loss of virginity through illegitimacy, such as adultery It will lead to the overthrow of the governorship! If the unanimous vote, following the words of some jurists, has ruled that this type of marriage is valid; The current research, which is organized in a descriptive and analytical method, emphasizes this opinion. Because in the conventional custom, it refers to a woman who does not have a husband and is married to a Sharia marriage, and in this sense, Tabadur It has, also, the renunciation of the plural usage testifies to the truthfulness of this claimant, and it is certain in the meaning of women who are divorced from a sharia marriage. Provide. https://hoquq.iict.ac.ir/article_718503.html oral evidence based on statements of fact by the accused (confession), witness (testimony) or plaintiff (oath) has gained relative credibility according to social developments. These evidences have an important role in the proceedings in order to show the reality directly and at a lower cost. Against, the scientific evidence that is based on the discovery of facts, have gained more and more credibility. Sometimes oral evidences conflict with scientific evidences, and the the fact that is made by the accused or witness or the plaintiff is different from the fact that is shown by scientific evidences. If scientific evidence has a certain proving of fact or if we have Subjectivity of Evidence for oral evidence, the conflict can be resolved easily. Regarding the subjectivity of oral evidence, how is the conflict resolution in the assumption that scientific evidence did not show the invalidity of oral evidence? Should we prefer scientific evidence and say that oral evidence are not valid if they don’t prove beyond reasonable doubt? Or we should prefer oral evidence due to lack of knowledge to the contrary? By stating the relationship between oral and scientific evidence, this article has examined this issue from the perspective of jurisprudence, law and judicial opinions of Tehran judiciary https://hoquq.iict.ac.ir/article_718505.html Preemptive defense is a form of self-defense whereby a party claims the right to launch an offensive on a potential opponent before the opponent has had the chance to carry out the attack or in case of an imminent danger. Such defense may be adopted in international conflicts involving members of the global community or in interpersonal conflicts. The present article deals with the legal considerations of preemptive defense as regards Muslim jurisprudence. Prevalence of interpersonal conflicts and cases of aggression in today’s societies has led to the community members’ frequent adoption of such behavior. This type of defense gains further significance when it is feared that a possible attack could lead to a person’s serious injury or bleeding or have the potential to cause loss and damage to property. As no comprehensive research has been done so far on the subject of preemptive defense with regard to the mentioned concepts, the present article adopts a descriptive-analytic approach to peruse the principles of Fiqh and legal laws to find out about Islam’s stance on this phenomenon. The findings indicate that according to Islam, preemptive defense shall be plausible in interpersonal conflicts, under certain conditions, once it is presumed that the enemy has the will to assault. For purposes of defending offenses against the spiritual aspect of a person’s character, however, such defense shall not be acceptable. https://hoquq.iict.ac.ir/article_720021.html The two models of laïcité and secularism each represent a distinct rationale in the discussion of the separation between religion and state. However, the common point between both models is their emphasis on ensuring religious freedom by governments in cases of conflict between individual rights and the prevailing ideology, as well as the interests and concerns supported by those governments. Today, adherence to the guarantee of religious freedom is considered a cornerstone of laïcité and secularism, serving as one of the most important criteria and foundations for determining the level of commitment of a laic or secular state to the values and principles upheld by laïcité and secularism. This research aims to understand the effects of ideology on government practices regarding discrimination in supporting rights and freedoms through an examination of the European Court of Human Rights' case law concerning conflicts between the right to religious freedom and public interests and policies. This study will elucidate the theoretical to practical differences between laïcité and secularism. https://hoquq.iict.ac.ir/article_721231.html با توجه به مشروعیت چندزنی در فقه اسلامی، استفاده از ظرفیت شرط ضمن عقد برای محدودسازی اختیار شوهر، دغدغه گروهی از بانوان در عقد نکاح است. مفاد شرط ممکن است شرط نتیجه و یا شرط فعل باشد. در صورتی که شوهر در ضمن عقد، حق ازدواج را از خود سلب کرده باشد، این شرط از نوع شرط نتیجه بوده و بلحاظ فقهی، فاسد است؛ زیرا مصداقی از تحریم حلال محسوب می‌گردد که در قرآن کریم و روایات اسلامی نهی شده است. نوع دیگر، شرط ترک تزوج یا تعهد شوهر به عدم ازدواج به صورت شرط فعل است. درباره این شرط دو پرسش مهم وجود دارد: پرسش نخست مربوط به مشروعیت و لزوم وفای به شرط ترک تزوج و پرسش دوم مربوط به آثار فقهی پیمان‌شکنی شوهر است. درباره هر دو پرسش اختلاف نظر وجود دارد. گروهی از فقهاء شرط ترک تزوج را باطل و گروهی دیگر آن را صحیح و لازم‌الوفاء می‌دانند. گروه اخیر درباره آثار فقهی پیمان‌شکنی شوهر و اقدام وی به ازدواج مجدد اتفاق نظر ندارند. نوشتار کنونی، نظریه‌های فقهی پیرامون آثار پیمان‌شکنی شوهر را از منظر تضمین حقوق همسران (اول و دوم) بررسی نموده و به این نتیجه دست یافته است که مطابق موازین فقهی و اصل احتیاط، ازدواجی که برخلاف شرط واقع گردیده صحیح است ولی مشروط‌له حق دارد الزام شوهر به طلاق زوجه دوم را از دادگاه بخواهد. در این صورت، شوهر ملزم می‌شود با پرداخت حقوق مالی زوجه دوم، وی را طلاق دهد. https://hoquq.iict.ac.ir/article_721232.html In Islamic law, a person's lien on someone else's property is either a trust or a surety, the usurper and usurper is considered to have bad faith and enmity with the surety and has absolute responsibility, and the same rule applies to the transgressive and guilty trustee. There is no doubt in the course of guarantee regarding the loss of property caused by the actions of the usurper, but the problem is that even though the person has a guarantee (usurper or trustee), but the loss of property cannot be attributed to him in any way. In this case, famous jurists and scholars According to some people, there is a consensus on the guarantee and responsibility of the individual, but according to the analytical-library study, there is no solid reason in the opinion of the famous jurists, and even in the case of the real usurper with malicious intent, while maintaining that he is responsible for the incidents caused by the authority of Cairo, In cases where there is no attribution in the loss of property, he believed in allocation and lack of guarantee. As the opinion of some contemporary jurists is based on this matter, and the civil laws of Muslim countries also believe in this matter. https://hoquq.iict.ac.ir/article_721233.html By examining Iranian jurisprudence and law and articles 1104 and 1163 of the French Civil Code of 2016, it is clear that construction matters and customary matters and contracts are within a wider circle called the realm of compromise. The secret of the disagreement of the jurists in the invalidity of the conditions or matters and construction agreements and the problems caused by it was due to the lack of correct recognition of the position and quality of its connection to the construction of the contract. By recognizing the credit status of agreements or construction matters, disagreements and confusion of topics, rules and works, and the guarantee of its implementation with other conditions in judicial authorities and arbitrations are avoided, and relevant issues are answered in a regular manner that innovation This article and its point of distinction with previous researches are also considered. https://hoquq.iict.ac.ir/article_721250.html The attempt to realize the constitutional system and the rule of law in order to overthrow the monarchy system in the Qajar period brought about the challenge of conflicting the law with the Sharia and affected the social and political history of the recent two century of our country. In order to deal with recent challenge, some people believe that the legal system based on liberal democracy is compatible with Sharia and for this purpose they have cited the ideas of Mirza Naini. In this research the recent solution has been critically examined.According to the findings of the research, the liberal legal system is one of the consequences of secularism in the modern period. Considering the inconsistency of secularism with religious thought, the acceptance of the liberal legal system requires the negation of the identity of Sharia and the revolution in its nature. From the arguments of Allameh Naini in the book Tanbiyeh al-Uma, it became clear that despite Naini's support for the constitutionalism, due to the rejection of secularism in his thought and the definite connection of the legal system based on liberal democracy with secularism, it is not possible to prescribe such a system from his opinions. https://hoquq.iict.ac.ir/article_721628.html Custody is an important legal institution derived from Imamiyyah jurisprudence, which is considered as one of the most vulnerable and fate-shaping elements of the family due to its nature of support, maintenance and upbringing of children. This institution, in spite of proving some powers regarding the custody of mothers and their custodial role in both executive and supervisory dimensions, is facing many problems and hardships, which in some cases cause mental and physical harm to the child under protection. These damages sometimes arise from the wide scope of the father's parental authority, possible conflicts in the parents' decisions for the child, as well as the absence of the father, which all in all refer to the shortcomings of the mother's authority in the custody of the child. The current research, which was provided in the direction of solving conflicts and expanding the powers of the guardian mother, considered solutions such as expediency, paying attention to the pillar of legal guardianship, as well as the application of some traditions about custody as the way to solve the problem, and found that in today's times, in order to increase the powers Laws based on Imamiyyah jurisprudence can be passed in the custody of the mother. https://hoquq.iict.ac.ir/article_721629.html If the condition included in the contract is useless or impossible or illegal, the condition is void, but the contract is not void. Therefore, in the case where the contract stipulates that the party to the contract uses the subject and object of the contract in a forbidden act, in this case, without a doubt, this requirement is both forbidden and invalidates the condition. But there is doubt regarding the nullification of the marriage in this assumption. In this regard, a group of researchers believe that both the condition and the contract are invalid, while others believe that if the use of the contract is forbidden, only the condition is invalid, but there is no reason for the contract to be invalid. In the current research, which is based on the descriptive-analytical method, the conclusion has been reached that if the consumption of the subject of the contract is stipulated in the forbidden act, only the condition is invalid, but the contract itself is valid and valid. https://hoquq.iict.ac.ir/article_721630.html According to the consensus of the jurists of the schools of thought, the verse “And if he is in hardship, then there is a waiting period for him to pay his debt” (Al-Baqarah, 280) implies that the debtor should be given time to pay his debt. The primary outcome of the waiting period for the debtor is that the creditors should wait for the debtor’s discretion to pay his debt at the desired time. This article, using an analytical-descriptive method, attempts to re-examine the message of the above verse, focusing on the meaning of “dhu’usra” and the nature of waiting, and to examine the compatibility of waiting period for the debtor with the obligation of the debtor to work. The main question is whether, from the perspective of the jurists of the schools of thought, it is legitimate to require the debtor to work? Although jurists have not considered this permissible in a practical sense, the findings of this study show that the interpretation made from verbal sources is incomplete and the purpose of the evidence supporting the necessity of looking after the debtor is to negate imprisonment and torture, not to prohibit him from working. Ensuring the rights and interests of creditors and removing losses from them also confirms the obligation to work. Of course, this legitimacy is not due to the dominance of the debtor or their guardianship over the debtor, but rather due to public order and within the framework of the laws and, as some jurists put it, due to the command of the ruler. https://hoquq.iict.ac.ir/article_721631.html Public rights refer to rights that are respected and protected by all and take into account public needs and desires, in a way that can help ensure social justice and create a balanced society. This research analyzes the process of establishing examples of public rights in Iran's legal system and its purpose is to identify the components and examples of these rights as an independent institution from other institutions of public law and human rights. The process of establishing common law is examined in three key stages; The first stage of creating and setting up the institution: this stage is dedicated to the design and development of a suitable legal framework for identifying and guaranteeing public rights, and the importance of legal institutions in this field is specifically examined. The second stage of the institution's implementation: In this stage, the implementation of the components of public rights and the role of contracts and laws in the daily life of citizens are discussed, so that public awareness and education regarding these rights are also considered And the third stage of monitoring the institution's implementation: this section is dedicated to the evaluation of the effectiveness of the implementation of public rights and the challenges in this field, which include the analysis of monitoring methods and the identification of practical obstacles in the realization of these rights. This study also deals with the challenges caused by social, economic and cultural changes and criticizes the inability of the government to identify and institutionalize public rights. Finally, suggestions for legal reforms and the development of regulatory mechanisms are presented that can help improve social justice and provide better protection of citizens' rights in Iran, especially in terms of increasing the transparency and efficiency of the legal system. https://hoquq.iict.ac.ir/article_722880.html The Hague Agreement aims to provide an economic and to speed up the mechanism to the owners of industrial designs to acquire, maintain and manage the rights governing designs in the countries and intergovernmental organizations that are members of the Hague Union through the registration of the application of the international certification unit at the international office of the World Intellectual Property Organization (WIPO). The Agreement seeks to unify the formal rules for registering industrial designs and eliminate unnecessary processes in the member countries without making changes in the substantive regulations of the members (Article 2 of the 1999 version of the Hague Agreement). By registering an application and completing international and national procedures, IP rights are granted to the owner of the industrial design in each member country. International applications can include over 100 designs, as long as they belong to the same group of the Locarno International Classification. This article utilizes a descriptive-analytical method to examine and analyze the terms and conditions of international industrial design registration in the Hague system. It also explores the benefits of the Iranian government joining the Hague system, such as simplified and streamlined registration procedures for Iranian industrial design owners who wish to protect their creations in other member countries. Individuals who hold citizenship, residence, permanent residence or commercial industrial location in one of the contracting members may deposit a design sample and file an international application. The ability to register multiple industrial designs through a single application that includes a sample plan reduces unnecessary costs and simplifies the registration process. This can be done directly through WIPO or indirectly through the Industrial Property Office. Additionally, there are discounts available on registration fees for less developed countries, making it more accessible for individuals in these regions to protect their intellectual property. https://hoquq.iict.ac.ir/article_722881.html With the increasing advancement of artificial intelligence technology, the discussion about granting legal personality to robots has become a serious issue. This article examines the feasibility of this issue from the perspective of Islamic ethics. In Islam, humans are recognized as free and responsible beings and have certain rights and duties. Artificial intelligence robots, although advanced, lack these human characteristics. Therefore, granting them full legal personality faces serious ethical and jurisprudential challenges. The aim of this study is to examine some of the problems that advances in robotic technology have brought and will bring. It seems that in the near future, human-robot interaction will reach a level that will not be distinguishable from human-human relations. In addition, in the face of these technologies that aim to surpass human intelligence, it reveals the concept of man in Islam and offers a different perspective for it, and by emphasizing its necessity, highlights the value of being human. From the perspective of Islamic ethics, granting legal personality to robots should be done with great care and caution. It is necessary to first fully examine and explain the various aspects of this issue and then make a decision based on Islamic principles and values. It seems that at present, granting full legal personality to robots is not possible. However, with further technological advancement and changing circumstances, this issue may be revisited in the future. In this article, while examining different perspectives, an attempt is made to provide a framework for discussing this issue from the perspective of Islamic ethics. https://hoquq.iict.ac.ir/article_722882.html One of the challenges of establishing laws related to the elections of the Islamic Council is the conflict of interest situation that arises as a result of the unity of the legislator and subject to the law; Because the number of representatives of each parliamentary term participates in the elections of the next term. Here, the management of the conflict of interest by an institution superior to the parliament is very important so that the representatives cannot prefer their own interest over the public interest. In this research, in a descriptive-analytical way, the changes in the laws related to the elections of the Islamic Council after the announcement of the general policies of the elections were investigated from the point of view of conflict of interest management. The findings of the present research show that the legislator has necessarily corrected several cases of defects and flaws in the laws of the parliament elections in order to realize the provisions of the general election policies. Among the mentioned reforms, it is possible to mention the use of public facilities by all candidates for advertising and transparency of resources and expenses of candidates. Before the amendment, these cases, while jeopardizing the health and quality of elections or the rights of other candidates, led to the benefit of candidate representatives. https://hoquq.iict.ac.ir/article_725158.html Smart transportation system or internet taxi is a type of transportation service that uses it to transport people and goods with greater ease, speed and security. The administrators of these systems have tried to shorten the ordering process for providing a vehicle to move people or goods by designing software based on the locator and creating online ordering capabilities for those requesting transportation services. Obviously, the use of these systems creates new legal challenges that are basically not seen in traditional transportation systems. In this article, by examining the challenges that arise due to the nascent nature of these systems, an attempt has been made to provide suggestions for settling claims in this field. Topics related to consumer rights and privacy, customer service challenges for both drivers and passengers, working relationships between the operator of the intelligent transportation system and the driver, topics related to fair contracts between active parties in this system and the governing laws. On the beneficiaries of such a service is one of the topics discussed in the article with the help of critical analysis method. The research findings show that from both legal and technical aspects, the rights of the consumers in smart transportation arena, such as driver, passanger, the transporter and the servicer need to be protected by the lawmaker. https://hoquq.iict.ac.ir/article_725159.html When the ownership of the third party on the object of sale is determined, two duties are created for the seller. "Price refund" and "payment of compensation" to the customer who was not aware of the void of the transaction. In the payment of compensation, various judgments were issued by the courts; So that it caused the issuance of the judgment of uniform judicial precedent 733. This judgment considered the reduction in the price as compensation and although in some cases it was a solution to the problem, but the differences of opinion of the courts in the method of compensation still remained. Finally, the uniform judicial precedent 811 announced "the amount of price increase (inflation) of properties that are similar to object of sale" as the basis for calculating damages. But the question is whether the decrease in the value of the price is included in the concept of "compensation" in Article 391 of the Civil Code? And is the compensation due to the decrease in the value of the price based on civil liability? What is the legal advantage of compensation method of the uniform judicial precedent 811 over other methods? In this research, the answer to those questions has been given by descriptive and analytical method; And the price when it is money has been separated from the price when it is a definite property, https://hoquq.iict.ac.ir/article_725471.html A good and sincere consultation to discover the facts is an important principle in order to solve the unknown and ambiguous issues of life. The spiritual damage caused by the widespread technique of counseling shakes the mental balance of people and challenges the public order and security of the society. By causing moral damage in terms of "authority and describer" and by fulfilling the conditions and elements of civil and criminal liability and by citing rational and documented rational and religious evidence, the consultant is the guarantor and obligee to compensate and fulfill the right in front of the damaged clients and the society. Although in Islamic jurisprudence examples of spiritual damage are mentioned, there is no definite and conventional method or methods for compensation of spiritual damage. However, the findings and results of this article, which were studied using ijtihad and library method, indicate that Based on valid jurisprudential evidence, damages and moral damage caused by expert consultation in accordance with the circumstances and by fulfilling the conditions and elements of responsibility with jurisprudential solutions such as: religious pardon and forgiveness, retribution, stopping illegal operations, peace, payment of money and punishment. Penalties can be compensated and repaired. https://hoquq.iict.ac.ir/article_725529.html Among the most important instruments for supply chain financing are electronic bills of exchange (bills) and promissory notes. The central question of this research revolves around how these two instruments can be utilized for supply chain financing. The hypothesis of this study is that electronic bills and promissory notes, relying on the liability of signatories—such as the drawee in a bill of exchange and the guarantor in a promissory note—can function as viable supply chain financing tools, which are issued, transferred, discounted, and settled exclusively in the money market. In terms of substance, these instruments do not differ from the bills of exchange and promissory notes under commercial law, and the principles and regulations stipulated in commercial law govern these documents as well, ensuring the protection of the financed party's rights. This paper seeks to conduct a descriptive-analytical study, examining the operational mechanisms of these two financing instruments, analyzing the relationships between their key components, and evaluating their differences from traditional financial institutions. https://hoquq.iict.ac.ir/article_726237.html The clarity and transparency of the judicial decision-making process is one of the most important factors in empowering judges to reach a valid decision in any legal system. Departing from the assumption of this meaningful relationship, theoretical and legal studies in the theories of proceedings indicate the existence of common variables affecting the equation of judgment in different theories of proceedings. With a descriptive-analytical method, this research has investigated the influence of variables such as the concept of law, the ratio of rights and ethics, communication proceedings and judicial policy on the process of proceedings in courts. The findings of the research confirm the direct relationship between the type of legal theorist's attitude towards each of the aforementioned components and his theory of proceedings, and also show the substantive factors that influence the voting in the judicial system.The findings of the research confirm the direct relationship between the type of legal theorist's attitude towards each of the aforementioned components and his theory of proceedings, and also show the substantive factors that influence the voting in the judicial system. https://hoquq.iict.ac.ir/article_726238.html One of the problems in the field of financial transactions is the difference between different parties in property assets. This difference creates a challenge in transactions whose structure is based on a general commitment, because such a commitment gives the possibility to the seller or customer to provide his commitment from the place of the property whose legal ownership is excluded from the eyes of the other party. and such a transaction is condemned to be null and void based on jurisprudence rules. The document of invalidity in this type of transactions is also the fact that the range of proofs of the validity of contracts such as "ofua in contracts" does not include such transactions; Because the contents of these proofs indicate the necessity of adhering to the commitment that was made, and this is while the proofs of the invalidity of the transactions invalidate the fulfillment of the commitment with haraam means. The transaction will be void. In line with this, the purpose of this article is to provide a solution for correcting transactions in which the parties disagree on the legitimacy of the price and the appraiser. Is; It shows that it is possible to correct this type of transactions by taking advantage of the tradition, applying the authority of proofs of authenticity of transactions from the approach of jurisprudence rules and the rule of obligation and the traditions of the permission to pay debts from the proceeds of the sale of mahrams. https://hoquq.iict.ac.ir/article_726744.html Among the definitive criteria for international jurisdiction, consensual jurisdiction has a valuable place in foreign law and cross-border instruments. Despite the entry into force of the Hague Convention on choice of court agreement in 2015, Iran has so far not taken any action to accede to this Convention. Nevertheless, must first be assessed the status of the agreement on a choice of court and the resulting international jurisdiction in the Iranian legal system. Because, if it is proved that consensual jurisdiction is not compatible with the principles of the Iranian legal system, then the discussion on Iran's accession to The Hague Agreement 2005 will be meaningless. Moreover, it is no longer possible to require that Iranian courts, as the case may be, deny or hear claims under the jurisdiction agreement or enforce foreign judgments based on it. Although many authors do not believe in this kind of agreement and its jurisdiction, the study found that consent-based jurisdiction is also accepted in Iran's legal system; however, reaching this conclusion has been through a process of negating and modifying the views of predecessors and explaining new approaches and regulations. In fact, Party Autonomy of will is also accepted in Iranian procedure law and Disrespect for the agreement on the choice of the court and the jurisdiction agreement based on it is a clear example of violation of the obligation, contrary to international public order and even the morals of the community. https://hoquq.iict.ac.ir/article_728800.html Real concepts or developmental matters are not subject to its validity and are unchangeable. But credit concepts are subject to the changing needs of societies and are situational and contractual matters, whose change is in the hands of the creditor. Correlation between formative and credit matters has caused us to observe the effects of credit matters on many legal and jurisprudential arguments. Many jurisprudential and legal inferences are based on the flow of philosophical rules on credit affairs. Some complete their jurisprudential and legal inferences with the help of philosophical rules and even base their arguments on it and believe that philosophical rules apply to credit matters. On the other hand, by denying the flow of philosophical rules in credits, some have not based their jurisprudential and legal inferences on the basis of evolutionary rules. Considering jurisprudence and jurisprudence inferences are aligned, the answer to the feasibility of basing jurisprudence and jurisprudence arguments on philosophical rules is a subject that has been tried to be pointed out in this article with a descriptive and analytical method. Contemporary jurists believe that philosophical rules do not apply to legal inferences. The origin of this opinion, which is the separation between the world of facts and validity, has caused jurists to agree with this statement. Nevertheless, it seems that the flow of philosophical rules that return to absolute existence in credit concepts is correct. https://hoquq.iict.ac.ir/article_729353.html One of the challenges of the Computer Crimes Act is the ambiguity in the definition of cyber theft and cyber fraud and the difference between the two. The legislator has dedicated Chapter Three of the Computer Crimes Act to computer-related theft and fraud without specifying which of these two articles is dedicated to cyber theft and which of these two articles is dedicated to cyber fraud and what is the difference between the two, and this ambiguity has led to differences in the views of lawyers and judicial procedures. In addition, it has legal jurisprudential effects. This article addresses this question using a descriptive and analytical method and in a library manner, and ultimately concludes that the boundary between computer-related theft and computer-related fraud is not well-defined, and as a result, court procedures are different. This hypothesis was proven that if the issue is the theft of data that has no value, it is cyber theft, and if the issue is the theft of money, goods, benefits, services, or financial privileges through data modification, it is cyber fraud. Of course, this legal establishment of the legislator has no proportion to the definition and conditions of traditional theft and fraud, and is considered a new legal establishment that does not comply with the Iranian criminal law system and causes problems. Among them, an act that is considered theft from a jurisprudential perspective and can be subject to the hadd penalty despite the conditions is excluded from the subject of theft and, as a result, will not be subject to the hadd penalty for theft, which is contrary to jurisprudential standards. https://hoquq.iict.ac.ir/article_730081.html In the fight against corruption, the application of both criminal and non-criminal measures is necessary, and corruption reporting is one of the non-criminal and preventive measures. The effectiveness of corruption reporting depends on the accurate recognition of its components. This is something that has been neglected in the law on the protection of corruption reporters and has made it defective. The prohibition of wrongdoing as a participatory criminal policy and the jurisprudential basis of corruption reporting. One of the existing concerns is the existence of corrupt people and the danger to the reporter, which challenges the mandatory prohibition of wrongdoing. Also, the inclusion of wrongdoing in corruption and its scope are among the issues related to corruption reporting. Based on a descriptive and analytical method, this article, referring to jurisprudential and legal sources, seeks to point out that corruption is a wrongdoing and its prohibition is a mandatory ruling that sometimes takes the form of reporting corruption because the scope of wrongdoing in today's world requires new tools to prevent it. Article 2 of the Law on Protection of Reporters with the Corruption Census, intended by this law, has limited the reporting of corruption to violations of regulations, and therefore the core of corruption has been neglected by the legislator, because the precise meaning and core of corruption is in a case where there is no violation of regulations, but at the same time, due to the existence of a conflict of interest, decisions are tainted with corruption, and transparency in the decision-making process is the only solution to combat this corruption and eliminate the aforementioned defect in the law. https://hoquq.iict.ac.ir/article_731987.html Time-sharing ownership is a modern legal concept that first emerged in French law and subsequently spread to other legal systems. In recent years, it has entered the Iranian legal literature under the title "Time-sharing ownership" and bears similarities to certain nominate contracts. This study seeks to answer the question: Can the legal structure of time-sharing ownership be equated with the contract of "muhayat" (mutual scheduling of use) in Shi’a jurisprudence, or should it be considered an independent legal institution?At first glance, similarities can be observed between these two institutions, as both involve the use of property in turn and subject to specific time periods. However, detailed examination reveals fundamental differences in terms of legal nature, rules, and effects—such as the type of ownership, durability of the right, revocability, and the manner of transferring the right of use. Therefore, aligning time-sharing ownership with muhayat faces significant challenges in both jurisprudential and legal contexts. Moreover, implementing it under the title of “co-ownership sale with a condition of muhayat” also presents conceptual issues. This study ultimately concludes that time-sharing ownership has a distinct legal character and can be recognized as a valid innominate contract under Article 10 of the Iranian Civil Code. https://hoquq.iict.ac.ir/article_732003.html In principle, no contract is concluded for the next transfer and the assignment of the contract in any case is an exceptional case that must be done in accordance with the prescribed conditions. Upstream oil and gas contracts are no exception and its possible assignment necessarily follows the general rules governing other contracts in order to transfer the contractual position of one of the parties to the contract to a third party who is considered a foreigner to the contract subject to the transfer. However, in the oil and gas industry, due to the strategic nature of these two commodities, the complexity of oil and gas contracts, the heavy financial consequences of these contracts, the generality of their ownership and the impact of expertise and ability of the other party to fully execute the contract The hosting countries consider several barriers and restrictions to the transfer of these contracts.In this research, the obstacles and limitations of the assignment of upstream oil and gas contracts are examined in a comparative manner and it is determined that the conditions of assignment of this category of contracts will be different from the transfer of other international trade contracts and the transfer of oil and gas industry contracts with It faces many obstacles and limitations. https://hoquq.iict.ac.ir/article_733288.html This research, employing an analytical and comparative approach and drawing upon jurisprudential, legal sources, and judicial precedent analysis, aims to assess the efficacy of the option clause institution in iranian law, particularly in light of article 401 of the civil code. The fundamental inquiry is whether the stipulation of a specified duration for the option, accompanied by the mandatory effect prescribed by the legislator and the sanction of contract nullification, aligns with the contemporary needs of commercial transactions and the standards prevailing in judicial practice and trade custom. The findings reveal that despite the recognition of the option clause as an institution founded upon the principle of the autonomy of will, article 401 has in practice suffered from rigidity and consequently lost the requisite effectiveness in judicial enforcement. Courts, through expansive interpretations, recourse to jurisprudential principles, and reference to commercial customs, have at times remedied legislative deficiencies and departed from the strict application of the provision. Comparative analysis further indicates that leading legal systems, while recognizing analogous institutions to the option clause, have adopted a more flexible approach regarding the determination of its duration and scope of application. Therefore, a revision of article 401, in accordance with practical exigencies, legal rationality, and comparative experience, is a fundamental necessity to enhance coherence between statutory text and judicial practice, and to balance legal certainty with freedom of contract. https://hoquq.iict.ac.ir/article_733536.html The right to cultural heritage, as a fundamental manifestation of human rights, is rooted in the connection between the intrinsic value of cultural artifacts and human dignity. Utilizing a descriptive-analytical method and a philosophical-legal approach, this article examines the theoretical foundations of this right from the perspectives of axiology, dignity, and historical continuity. By critiquing both essentialist and non-essentialist approaches, it explains the value of heritage as emergent, relation-centric, and beyond market price, considering it a manifestation of rationality, freedom, and collective identity (based on the ideas of Kant, Hegel, Ricoeur, and Nussbaum). The proposed framework defines the right to heritage as encompassing access, utilization, preservation, and dynamic participation, and obligates states to curb threats, guarantee intergenerational justice, and integrate heritage into human rights policies. The conclusion is that safeguarding heritage is not a managerial task, but rather a moral commitment to honoring human dignity and the re-creation of meaning in history. https://hoquq.iict.ac.ir/article_733571.html This study aims to reinterpret and analyze the concepts of rushd (maturity) and safāhah (incompetence) in Islamic commercial jurisprudence and to comparatively examine them within contemporary legal systems, in order to elucidate the linkage between juristic rationality and economic efficiency. The main problem addressed is the position of rushd as both a criterion of legal capacity and an indicator of efficiency in financial and legal decision-making. The research hypothesis posits that rushd in Islamic jurisprudence reflects the rational ability to manage property and utilize assets productively, whereas safāhah, as the absence of this ability, disrupts financial justice and diminishes economic efficiency. The research adopts a descriptive–analytical method with a comparative approach between Imamiyyah jurisprudence and the legal systems of Iran, Germany, France, the United Kingdom, and Malaysia. The findings reveal that rushd in Islamic law is a fuzzy and gradual concept, manifested in varying degrees of rationality, and that its verification requires practical and experiential testing. Consequently, Islamic jurisprudence, through the model of “efficient maturity,” provides a rational and functional framework for regulating economic relations and preventing irrational (incompetent) transactions—one that can serve as a foundation for sustainable development and distributive justice within the Islamic economic system. https://hoquq.iict.ac.ir/article_733639.html One of the issues related to legislation in an Islamic state is the “validity of the law.” Three broad perspectives can be proposed in this regard .Some Islamic thinkers believe that legislation is the responsibility of the just jurist, and the validity of the law depends on her signature and enforcement, and that the opinions of experts have only an advisory role. Others believe that since legislation in an Islamic state is in fact the "identification of the subject matter" of religious rulings - primary or secondary - or government rulings issued based on public interests, the status of custom is that of a specialist. Just as in individual tasks, identifying the subject is the responsibility of the person responsible, in social tasks it is also the responsibility of the expert, who can identify specialized topics in various political, social, economic, cultural, or military fields, and recognize secondary topics: necessity, urgency, hardship, harm, or difficulty in the macro-social field. Of course, in this area, in cases of disagreement, the opinion of the "people's elected experts" takes precedence. Ultimately, their opinion becomes valid with the permission or signature of a just jurist; the opinion of the people's elected experts is not advisory in nature, but rather their legislative authority, and the jurist only bases the ruling on it. The third view does not even consider the permission and signature of a just jurist necessary, because government in the era of occultation belongs to the people. The recognition of experts elected by the people is sufficient to enact a law; a law that ensures the goals of government in Islam and the public interest. The present article is responsible for explaining, criticizing, and analyzing these three views and their foundations. https://hoquq.iict.ac.ir/article_733777.html The “Crumbling Skull Doctrine,” derived from common law principles and the jurisprudence of the Supreme Court of Canada, is founded on the premise that if an individual, prior to the commission of a crime or a tortious act, suffers from a bodily injury or defect that is naturally deteriorating, the liability of the wrongdoer is limited solely to the extent of aggravating or accelerating that deterioration. In contrast to the “Thin Skull Rule,” which imposes full liability on the offender even where the victim’s susceptibility is exceptional or abnormal, the Crumbling Skull Doctrine seeks to restrict liability by distinguishing between the pre‑existing condition and the additional harm caused. Traces of this logic can also be found in Iranian law. Jurisprudential principles (fiqh) and the provisions of the Islamic Penal Code regarding diyah (blood money) — such as the rulings on defective or paralyzed organs, mute tongues, discolored teeth, and hair that had already fallen out — are all based on the principle that when an organ has already lost its normal function or benefit, injury to it does not entail a full diyah. This same reasoning applies in cases where an organ has been previously damaged; in such instances, the diyah is determined proportionately to the remaining utility of the organ. The present article, through an analytical and comparative approach, explores the extent to which the Crumbling Skull Doctrine may correspond with the jurisprudential and legal foundations of Iranian law. It argues that this doctrine — in situations where the pre‑existing injury arises from natural or unintentional causes — can, in certain circumstances, be deemed compatible with the logic of Islamic jurisprudence and Iranian legal principles. https://hoquq.iict.ac.ir/article_733787.html Cognitive warfare, as a new generation of conflict, targets the mind and perception of audiences by employing psychological, media-based, and technological tools. By influencing decision-making and human behavior, this phenomenon may create grounds for the commission of criminal acts. In recent years, it has been observed that adversaries, through cognitive warfare tactics in cyberspace and mass media—such as information distortion and the incitement of emotions—have fueled unrest and provoked protests within society. Therefore, one of the pressing issues requiring special examination is the criminal liability of offenses arising from cognitive warfare operations. Given the research gap on this subject, the present study adopts a descriptive-analytical approach in an effort to elucidate it. The findings indicate that mental manipulation resulting from cognitive operations often undermines an individual’s awareness and freedom of will at the time of committing an offense, thereby impairing the mental element of crime. Consequently, it is necessary to reduce criminal liability in cases where offenses stem from cognitive warfare operations. Moreover, regarding such offenders, and in light of their particular circumstances, restorative interventions should be prioritized https://hoquq.iict.ac.ir/article_733829.html Cooperation with foreign media is a type of media activism that is controversial as to whether or not it is a crime, especially when it is carried out in the form of citizen journalism. In current judicial practice, courts prosecute cooperation with certain media outlets in the form of citizen journalism under general charges such as propaganda against the regime or cooperation with hostile states, citing sub-legislative texts such as resolutions of the Supreme National Security Council. The purpose of this article is to correctly explain the legal status of behaviors known as "collaboration with hostile media," especially the specific type of "citizen journalism."In this research, the documentary method was used to examine the concepts, background of the discussion, and theoretical foundations. Then, through a descriptive-analytical method, the feasibility of implementing cooperation with non-aligned media in the form of citizen journalism with these topics has been assessed, and the current legislative policy and judicial practice have been criticized. The research findings show that citizen journalism is not adaptable to these titles and current judicial practice is in conflict with higher-level documents and legislative requirements, such as the principle of legality of crime and punishment. Although a bill to increase the punishment for espionage was recently approved in the parliament, and Article 4 of it criminalizes "sending films and images to hostile or foreign networks," this bill also has many drawbacks. Therefore, it is proposed to make amendments to this bill in order to guarantee the principles of due process and the rights of the accused. https://hoquq.iict.ac.ir/article_733830.html **Voluntary Insolvency as a Legal Status in Islamic Jurisprudence**Incapacity (*i‘sār*) as a legal condition exempting a debtor from certain obligations is recognized in Islamic jurisprudence. However, some debtors, through deliberate or voluntary actions, cause their own insolvency. Given that such conduct may undermine public trust, facilitate misuse of the *i‘sār* institution, and lead to the infringement of creditors’ rights, the question arises: what is the position of the Islamic legal system regarding such behaviors?This study, employing a descriptive–analytical and *ijtihād*-based library method, examines and explicates the juristic foundations of “voluntary insolvency” — that is, actions taken by a debtor to deliberately bring about his own state of insolvency. The findings indicate that if the debtor’s legal transactions are deemed *non-effective* (*‘adam al-nufūdh*), creditors are entitled to file for his interdiction (*hajr*). Furthermore, in cases where the other party to the transaction is unaware of the debtor’s condition, the *khiyār al-taflīs* (option of rescission due to insolvency) may be invoked based on the *lā ḍarar* (no-harm) principle.Where the debtor’s property is lost without a formal legal act, no *ḥukm waḍ‘ī* (declaratory ruling) can be established. Nevertheless, in specific circumstances, taking property from such a debtor and the lapse of the implicit permission within his transactions give rise to *ḍamān* (liability). https://hoquq.iict.ac.ir/article_735609.html Based on reports from competent authorities regarding the allocation of more than one-third of legal claims to unofficial transactions, the Supreme Leader, emphasizing the absolute expediency of the system, required the judicial system to amend the law, and subsequently, a law requiring the official registration of immovable property transactions was passed. Accordingly: If a person presents witness (bayyinah) that contradicts the provisions of an official document that the property in question was transferred to him as the holder of the ordinary document, can the provisions of the witness (bayyinah) be considered to be devoid of jurisprudential and legal validity, based on the first ruling that the provisions of the official document take precedence as evidence of the holder's ownership? Although the justification of the aforementioned ruling based on a secondary ruling and a government ruling is not much of a controversy, it does not seem to be a suitable solution due to its temporary nature. Therefore, in this research, In a descriptive-analytical manner, we will prove with various jurisprudential reasons, such as the to be methodical and signature nature of the proofs, that, according to the first ruling, the exclusive transfer of immovable property with a valid official document and in conflict with the evidence takes precedence over it. https://hoquq.iict.ac.ir/article_735618.html This study investigates the structure and epistemological foundations of a theory articulated within the intellectual framework of Muhammad Taqi Mesbah-Yazdi, which proposes a novel conception of the Islamic ruler grounded in the criteria of justice (‘adl) and piety (taqwā). The article aims to demonstrate how this theory addresses five central questions in legal philosophy: (1) the origin of law, (2) the basis of legitimacy, (3) the relationship between law and morality, (4) the focal point of legal relations (right versus duty), and (5) the ultimate authority in legislation—and to determine its position within the landscape of legal schools of thought. The research employs a descriptive-analytical methodology based on a comparative study between Mesbah-Yazdi’s foundational principles and modern legal-philosophical approaches. Findings indicate that the theory of “ʿĀdil al-Muʾminīn” is rooted in theological realism and the doctrine of Wilāyat al-Faqīh (Guardianship of the Jurist). It identifies the divine will as the source of law, divine appointment and permission as the basis of legitimacy, and the validity of law as contingent upon its conformity with Islamic ethics and substantive justice. Moreover, in contrast to modern rights-based frameworks, the theory emphasizes religious duty-oriented jurisprudence and restricts political authority exclusively to pious and just believers—particularly qualified jurists (fuqahāʾ). In this respect, Mesbah-Yazdi’s theory stands in opposition to legal positivism and liberal legalism, aligning instead with the tradition of natural law and a theocratic, elite-oriented model of religious governance. The original contribution of this article lies in its internal analysis of this theory as a distinctive paradigm of “elite-centered religious democracy,” which seeks to bridge divine legitimacy with socio-political efficacy. https://hoquq.iict.ac.ir/article_736203.html The rise of big data and deep learning models has opened new possibilities for the use of artificial intelligence in legislative processes. In the legal system of the Islamic Republic of Iran, however, the central question is not merely whether AI can be used in lawmaking, but in which capacity and within what limits such use may be compatible with the foundations of Imāmī jurisprudence. This article aims to clarify the permissibility, limits, and Sharīʿah-based requirements of employing AI in legislation. It proceeds from the premise that an intelligent system may not occupy the position of juristic inference, issue a religious ruling, or independently enact binding law. Rather, its legitimate role is confined to subject-matter identification, data collection and analysis, impact assessment, detection of inconsistencies, and assistance in drafting legislative proposals. Using an analytical-ijtihādī method and a descriptive-analytical approach, the article examines the functions of AI across three stages of legislation: pre-legislation, intra-legislation, and post-legislation. The findings show that AI may be permissible as an auxiliary expert tool, provided that data integrity, methodological transparency, explainability of outputs, human attribution of responsibility, and continuous juristic-legal oversight are ensured. The article also distinguishes between the maxim of lā ḍarar, the prohibition of causing harm, and the rules of liability and compensation. It argues that extending the concept of harm to algorithmic injuries, such as discrimination, privacy violations, or impairment of human dignity, is justified only where the harm is typical, attributable, assessable, and affects a legitimate right or interest. The proposed framework is therefore based on data governance, juristic-legal evaluation of algorithmic outputs, and final authorization by competent human and Sharīʿah-based authorities. https://hoquq.iict.ac.ir/article_737181.html Today, due to various economic requirements and the dynamics of human needs, the use of artificial intelligence is a fundamental necessity. Artificial intelligence, despite its dual function towards the environment, helps protect the environment in some ways, but in many ways it causes minor and extensive damage to the environment . In line with this necessity, this descriptive-analytical article, based on library studies, seeks to examine the question of what legal rules should be considered before and after the use of such technologies.. In accordance with this necessity, this descriptive-analytical article, based on library studies, seeks those legal rules that should be considered before and after using such technologies. Accordingly, despite the adverse effects of the development and application of artificial intelligence, some technical and legal strategies have been envisaged in the current inadequate frameworks at the level of the European Union and UNESCO documents and the International Organization for Standardization. Also, the possibility of implementing the principles of international environmental law such as the precautionary principle, the principle of participation and solutions such as reducing electronic waste through the recycling of hardware components and the reuse of system components or the development and improvement of comprehensive legal and regulatory frameworks based on creating a balance between the development of artificial intelligence and environmental protection, along with the division of environmental responsibility between downstream and upstream users, can be considered as solutions to reduce or compensate for environmental damage caused by artificial intelligence. https://hoquq.iict.ac.ir/article_737748.html “Objective-orientation” and the possibility of resorting to the five objectives of Sharia—namely the preservation of religion, life, intellect, lineage, and property—in the process of legal inference, particularly in demonstrating the capacity of Sharia to respond to emerging issues, constitute among the most challenging and disputed topics among jurists of both Sunni and Shiʿi traditions, and in certain respects even among Imami jurists themselves. Among the various dimensions that can be addressed within this issue, one of the most significant is the discussion of the possibility of accessing the objectives—understood here in the conceptual sense, that is, the objective as the underlying ratio and complete cause for the establishment of a ruling—and, if such access is affirmed, the methods of attaining the objectives of Sharia and the effective causes of legal rulings.The present study adopts a comparative approach and employs a descriptive–analytical method based on library sources. After conceptual clarification and a precise delineation of the point of dispute, it demonstrates, first, that accessing such objectives is indeed possible; even those Imami jurists who deny this possibility in theory, in practice engage in establishing rulings through uncovering objectives understood as underlying rationales. Second, the study shows that multiple pathways can be identified for such discovery.The findings, in addition to affirming the principle of possibility, indicate that the methods of accessing the objectives in juristic and legal inference include: the explicit statement of cause and rationale within transmitted reports; non-independent theoretical reason (discovering the rationale in light of textual sources through tanqīḥ al-manāṭ or definitive analogical inference based on the inferred cause); non-independent self-evident reason (discovering the rationale in light of textual sources through definitive a fortiori analogy); induction and the juristic intuition derived from it; and independent reason. https://hoquq.iict.ac.ir/article_738868.html The principle of necessity (qa‘idat al-idtirar) is one of the fundamental maxims of Islamic jurisprudence, which under specific circumstances allows for altering primary rulings and plays a vital role in legitimizing medical interventions. In contrast, abortion in Iran’s legal system, following the enactment of Article 56 of the Law on Protection of the Family and Youthfulness of Population (2021), has shifted from a physician-centered approach to a judge-centered one, grounded in jurisprudential precaution. The central issue lies in the conflict between medical necessity (biological emergencies to preserve the mother’s life) and jurisprudential necessity (temporal restrictions related to ensoulment and religious hardship). This conflict has seriously challenged the effectiveness of clinical diagnoses when confronted with judicial procedures. This study, aiming to explore the legal and jurisprudential dimensions of Article 56, seeks to clarify the consequences of judicial authority prevailing over specialized medical judgment and to examine the temporal challenges in establishing necessity. Employing a descriptive-analytical method with a critical approach, the research analyzes the text of Article 56 and its provisions in contrast with medical emergency standards and jurisprudential foundations related to the principle of la haraj (no undue hardship) and secondary rulings. Findings indicate that conditioning abortion under Article 56 upon “the judge’s certainty” and the strict limitation of “before four months of pregnancy” has effectively tied medical necessity to time-consuming judicial formalities. This process eliminates the golden window for treatment and, in cases of conflict between the mother’s life and the fetus after ensoulment, places medical staff in a deadlock of criminal liability. Furthermore, the downgrading of the Legal Medicine Organization to a merely consultative role has disrupted the balance between medical expertise and law, tipping it in favor of jurisprudential deterrence. https://hoquq.iict.ac.ir/article_739016.html The environmental crisis has given rise to attention to the right to the environment as one of the fundamental rights that is essential for the survival and continuation of a healthy and decent life. This research, within the framework of human rights and environmental rights, examines the challenges facing the right to the environment during wartime; the main issue is how military attacks can simultaneously undermine environmental foundations and human rights and what gaps exist in legal systems for the effective protection of these rights. The main objective of the research is to analyze the degree to which military powers comply with international obligations to protect the environment and environmental human rights during wartime, focusing on the case study of the attack by the United States and the Zionist regime against Iran. The research methodology is descriptive-analytical and based on the analysis of legal documents, international procedures, and similar case studies. The research hypothesis is that in wartime conditions, military considerations (military necessity) often take precedence over environmental and human rights obligations, leading to widespread violations of environmental rights. The findings show that despite the existence of principles such as proportionality, necessity, and precaution, enforcement mechanisms and adequate safeguards to prevent environmental degradation and human rights violations are ineffective, leading to the continuation of long-term environmental damage and the weakening of the concept of human rights in times of war. https://hoquq.iict.ac.ir/article_739017.html The theory of risk in contracts for the transfer of ownership is one of the fundamental issues in the law of obligations, which concerns the determination of liability for loss or damage to the property being traded due to force majeure. In French law, according to Article 1196 of the Civil Code, the general rule is that with the transfer of ownership, the risk is also transferred to the buyer; however, numerous exceptions, including legal ones such as delay in delivery, contracts subject to a condition, the 1980 Vienna Convention on International Sales, and consumer contracts, contractual ones such as the different transfer of risk condition, and judicial ones such as the sale in the case of a pre-sale of a building, are foreseen. In this way, the transfer of ownership is considered the main criterion for the transfer of risk. In contrast, in Iranian law, which is influenced by Imami jurisprudence, the main rule based on Article 387 of the Civil Code is that if the property sold is lost before receipt, the loss is the seller's property; therefore, the risk is transferred with receipt and not with the transfer of ownership. This rule is also confirmed in special cases such as general sale in debt or legal options. However, according to the principle of freedom of contracts, there is the possibility of a contrary condition and shifting the time of transfer of risk between the parties. https://hoquq.iict.ac.ir/article_739026.html Armed conflicts and widespread humanitarian disasters—particularly when coupled with sieges and the denial of access to vital necessities—pose a grave threat to the life and human dignity of civilian populations. In such contexts, identifying the “right to humanitarian assistance” as a fundamental human right plays a pivotal role in translating human suffering into binding legal obligations.Employing a descriptive-analytical methodology and drawing upon international law instruments, human rights, International Humanitarian Law (IHL), and sources of Islamic jurisprudence, this article seeks to address a fundamental question: On what jurisprudential and legal foundations can humanitarian assistance be identified as a “claim-right” for individuals in situations of siege and armed conflict—specifically the residents of the Gaza Strip?The research findings indicate that although the “right to humanitarian assistance” is not explicitly articulated in most international instruments and Islamic texts, it is deeply rooted in two fundamental principles: the “right to life” and the “right to human dignity.” Consequently, the practical realization of these two rights is unattainable without ensuring access to food, medicine, water, and other essential necessities. An examination of Islamic teachings—particularly the principles of inherent human dignity and the rule of the “necessity of preserving the respected soul” (Wujub Hifz al-Nafs al-Muhtaramah)—confirms that providing aid to humans at risk, irrespective of religion, race, or nationality, possesses a binding nature.Finally, a study of the situation in the Gaza Strip reveals that the siege and the obstruction of humanitarian aid constitute a flagrant violation of the fundamental rights of civilians, triggering the legal responsibility of the Occupying Power as well as the complementary responsibility of the international community. https://hoquq.iict.ac.ir/article_739036.html Part of the development and dynamics of the science of jurisprudence is dependent on the jurisprudential maxims and the related discussions. The formulation and adoption of new jurisprudential maxims from sources of jurisprudence can greatly help facilitate the extraction of Sharia rulings. Among the issues that, if established as a maxim, could have many effects in the science of jurisprudence is the prohibition of humiliation. Therefore, the purpose of this research is to investigate the possibility of formulating a jurisprudential maxim of prohibition of humiliation in order to further facilitate the process of jurisprudential inference and also to provide the basis for the application of such a maxim in the science of jurisprudence and other fields such as law. The author, through library study and review of existing sources, has extracted and presented a pattern of maxim formulation in jurisprudence and, on this basis, has proceeded to formulate the maxim of prohibition of humiliation. The findings of this research indicate that the jurisprudential issue of the prohibition of humiliation has sufficient jurisprudential evidence as well as the necessary breadth and inclusiveness, and has the capacity to be presented as a general jurisprudential maxim. https://hoquq.iict.ac.ir/article_740704.html AbstractThe factors of crime and the ways to combat it are fundamental and main topics of criminology that have been discussed a lot in both fields. Not all factors of crime and the ways to combat it are at the same level in terms of role-playing. The present article aims to explain the position of Islamic teachings in combating crime and address the question of what role, from the perspective of Islamic teachings, polytheism as one of the factors in crime and monotheism as a solution in preventing crime. Based on the findings of this study, which was conducted through a descriptive and analytical method in religious documents, especially the verses of the Quran and the interpretation of the verses, polytheism is the main factor in crime, which plays a role in the occurrence of crime in various ways, including "creating division and disruption in behavior" and "shifting values". In contrast, monotheism is the main solution for combating crime, which blocks the path to crime through methods such as "creating unity and social cohesion", "strengthening responsibility", "ensuring justice and equality" and "creating hope and motivation". Key words: monotheism, polytheism, prevention, crime, unity, division https://hoquq.iict.ac.ir/article_740705.html The principle of respect for property is rooted in hadith texts. Beyond its application in Worship and transactions, it is also invoked in the domain of civil liabilities. However, there is no uniform approach regarding its application in civil liability cases. Most jurists invoke the principle of sanctity to mandate compensation in cases where other civil liability rules fail to justify recompense. Nevertheless, it appears that the principle of sanctity lacks the capacity for such broad interpretation and cannot be equated with other civil liability rules. This research, conducted through a descriptive-analytical method, aims to elucidate the proper application of the principle of sanctity in civil liability. The findings support the view that, given the comparison of property sanctity to blood sanctity in this principle, it stipulates that observance of this rule and respect for property is mandatory not only for others but also for the owner, and any condition contrary to it is void. Therefore, in cases where there are liability exclusion or limitation clauses, and intentional, severe, or fraudulent damage is inflicted upon an individual, the principle of sanctity negates the necessity of adhering to such conditions and paves the way for the application of civil liability rules. https://hoquq.iict.ac.ir/article_741142.html Historic buildings, as part of the cultural heritage of each nation, embody architectural, historical, and identity-related values. The protection of such buildings is significant not only from a cultural perspective but also from a legal standpoint. In recent years, the development of modern concepts of intellectual property has created the opportunity to utilize the institution of industrial design as a legal mechanism for safeguarding the visual and artistic values of works. Adopting an analytical approach, this study examines the possibility of protecting historic buildings within the framework of the industrial design system. First, the concepts of historic building and industrial design are analyzed from both lexical and legal perspectives, demonstrating that the primary criterion for protection is not merely the age of a historic building, but rather its value and recognizability. Pursuant to the Law on the Protection of Industrial Property (adopted in 1403 [2024]), the external and decorative features of historic buildings may qualify for protection as industrial designs, provided that they meet the requirements of originality and novelty. An examination of registered examples in Iran indicates that creative façades and structures possessing a distinct visual identity are eligible for registration. Conversely, the limited duration of protection and the exclusion of structural elements are considered among the challenges of this legal regime. Finally, creative reinterpretation is proposed as an effective approach for utilizing the industrial design system in order to preserve and add value to historic heritage. https://hoquq.iict.ac.ir/article_742038.html AbstractTraditional contracts face challenges such as forgery, manipulation, and denial of obligations that threaten the legal security of the parties. Blockchain technology, as an emerging innovation in the field of information recording, has created capacities to overcome these challenges. The present study was conducted with the aim of legal analysis of improving the security of contracts through blockchain technology in the Iranian legal system. The findings showed that blockchain, with its immutability, transparency, and decentralization features, has the ability to reduce forgery and fraud in contracts. Examining the compliance of the elements of the authenticity of transactions subject to Article 190 of the Civil Code with this technology indicates that blockchain itself does not create an obstacle to the realization of these elements, although the verification of the competence of the parties requires supplementary mechanisms. On the other hand, obstacles such as legal gaps, lack of official recognition of blockchain documents, and lack of institutional infrastructure have made the acceptance of this technology a challenge. The results indicate that taking advantage of the benefits of blockchain in improving contractual security requires a review of the e-commerce law and the establishment of a specialized regulatory body. The research method for solving the problem is library, descriptive, and analytical.