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Mr Sayied Yaqub Arefi,
Volume 2, Issue 3 (6-2024)
Abstract

The principle of full implementation of the contractual obligation (fulfillment of the obligation without deficiency in quantity and quality) is the real goal and spirit of barter transactions. Imamiyyah jurisprudence and principles of Unidrava have emphasized this principle. A library study and a descriptive-analytical method show that Imami jurisprudence has the advantage of "expressing the conceptualization structure of the principle of full implementation of the obligation", "determining various criteria for fulfilling the obligation based on the variety of the obligations" and "the obligee's duty to accept the full implementation of the obligation.
The principles of international commercial contracts have paid attention to "the effect of fluctuations in the value of money in the implementation of monetary obligations", "the conventional quality standard of implementation", "the principle of good faith in the fulfillment of the obligation" and "the cooperation of the obligor in the full implementation of the obligation". These attentions open the path of new reflections for the latest conclusions of the Imamiyyah jurists in the field of covenant fulfillment.

Mr Gholam Reza Paywandi, Mr Qanbar Javid,
Volume 2, Issue 3 (6-2024)
Abstract

The subject is the function of the rule of sahlah and samhah in criminalization. Since the crime is abnormal and against values, it has always followed the punishment which is society's reaction. The effectiveness of the criminal system against such a phenomenon depends on the rules governing that system. The main reason for the stability of any criminal system is its governing rules. The rule of sahlah and samhah plays a fundamental role in the foundation and continuity of the criminal system in all phases of criminal policy, including the criminalization phase. At this stage, the legislator, taking into account the norms and basic values of the society and relying on his accepted theoretical foundations, prohibits the current act or omission and imposes a criminal executive guarantee for it; It should take into account ease and flexibility, otherwise criminalization will be temporary. According to this, the rule of sahlah and samhah is to make criminalization flexible, in all eras and among all nations, the same result of the ease and tolerance of the rule leads to the decriminalization and rejection of the charge of total authoritarianism from criminalization, which in this descriptive and analytical research, Baroush It has been obtained through the resources available in the libraries and facilities.

Mr Abdul Karim Skandari,
Volume 2, Issue 3 (6-2024)
Abstract

One of the basic topics in the field of international criminal law is the principle of competencies, which are divided into territorial, personal, protective, and global competencies in terms of territorial territory and beyond. The principle of universal jurisdiction has been established for the national courts of states to prosecute and try international criminals and protect the order and security of countries at the domestic and international levels, considering the complementarity of the jurisdiction of the International Criminal Court. According to this principle, all countries have the right to try international criminals, and due to its secondary nature, it can be implemented by the domestic courts of the states with special conditions and in the absence of other jurisdictions. In this research, an attempt is made to examine universal jurisdiction, its principles, and implementation conditions from the point of view of international documents and Afghan criminal law, and this principle is described and investigated using a library method. Acceptance of this principle is optional, like membership in the Rome Statute, and for this reason, there is no single practice by countries in the field of its acceptance and the crimes covered by this competence, and therefore, it faces legal and non-legal challenges in terms of implementation, but in total, the examples The practice of this principle indicates its effective function in the field of fighting international crimes, especially for weak countries.

Mr Mahmmod Hussain Qaderi,
Volume 2, Issue 3 (6-2024)
Abstract

One of the institutions that oversees investors' trust in businessmen is bankruptcy, which is divided into ordinary bankruptcy, fraud, and fault from the point of view of rights. Normal bankruptcy has a civil aspect and is out of the scope of this research, bankruptcy due to fraud is also out of the scope of this research due to its volume. But bankruptcy due to fault, has been given special attention in the law of Afghanistan and Iran, so there is a question in which cases the bankrupt businessman is considered to be at fault. In this article, with descriptive and analytical research, the punishment of bankruptcy due to fault is investigated and the findings of the research show that the guilty businessman is divided into small and big. Each of those material and spiritual elements is unique to itself. If the elements are proven and the conditions are fulfilled, the businessman will be found guilty and will be punished according to the punishment prescribed in the criminal laws.

Mr Qasim Ali Sadaqat,
Volume 2, Issue 3 (6-2024)
Abstract

Due to the influence of the government budget on development in various fields and because it is considered the main and vital artery of the country's development, its monitoring is of particular importance. Therefore, the types of administrative control in the present research have been evaluated on the budget and certain questions have been answered in the field of types of administrative control and the output of administrative control. Likewise, the strengths and weaknesses of intra-organizational and extra-organizational administrative supervision and hierarchical supervision have been evaluated in the examples of the supervision of the prime minister, ministers, the internal control and audit department, and the supervision of the Supreme Audit Office. In this research, the administrative supervision in the two examples of the Internal Control and Audit Office and the Supreme Audit Office has been generally considered positive from a specialized and professional point of view, but in terms of output and agent, the types of administrative supervision in Afghanistan's legal system are not very favorable.

Mr Eid Mohammad Ahmadi,
Volume 2, Issue 3 (6-2024)
Abstract

The terms compulsion, reluctance, and emergency are among the secondary titles in duties and rulings that have been discussed and examined in jurisprudence and law, and there are effects on them in the civil and criminal aspects. All three mentioned situations prevent criminal responsibility;, But there are differences between them. The difference between reluctance and coercion is that coercion takes away a person's true will and authority; However, in reluctance, the will and free will are not completely removed, but satisfaction and good will are damaged. The achievement of reluctance is conditioned by threats and the existence of fear;, But in coercion, there is no chance for threats and fear. The difference between reluctance and emergency is that in an emergency, threatening conditions and situations arise naturally and humans do not interfere in its occurrence; But in reluctance, the source of danger and threat is always human. Emergency does not cause distortion of discretion and limitation of the will of the person in distress;, But reluctance causes distortion and limitation of the will and discretion of the person who hates. In the end, reluctance causes the decline of obligatory and situational rulings; But the emergency does not cause the status ruling to disappear. The difference between compulsion and emergency is also in denying the will of the compelled person and the origin of both; The source of compulsion is the human factor and the source of emergency is the external and natural factor, and the realization of each of these situations has conditions. This research has stated the issues with a descriptive and analytical method in a reasoned and documented manner. According to the current research, they remove all situations or the principle of duty and responsibility from the person, and the person has no previous responsibility and criminal capacity at all, or they remove the punishment, impeachment, and posterior responsibility, and despite committing a crime, the consequences of criminal behavior are not imposed on the person.

Mr Qasim Ali Sadaqat,
Volume 2, Issue 4 (9-2024)
Abstract

Sustainable peace and its guarantee are the indisputable rights of citizens who are facing challenges in Afghanistan, and to overcome these challenges, legal solutions are needed that must be put into the form of policies with their implementation, so the people of this land will witness a peaceful life and sustainable peace. Therefore, in this research, sustainable peace is considered a right-claim, and to guarantee it, legal solutions and government policies have been analyzed and evaluated with a legal approach, philosophy of law, and sociology using library and field methods, as well as descriptive, analytical, inductive, and deductive research methods. The key legal solutions and policies to ensure sustainable peace in Afghanistan are respect and guarantee of human dignity, human security, equality of opportunity, and fair territorial planning, which the government should put at the top of its major policies. At the same time, the government should focus more on human dignity as the basis of human security, equality of opportunity, and fair territorial planning as the key to ensuring sustainable peace and place it as the axis of its strategy, policy, and major programs. This research focuses mainly on proving the relationship between the issues and ensuring sustainable peace.

Mr Sayied Yaqub Arifi,
Volume 2, Issue 4 (9-2024)
Abstract

The principle of immediate performance of contractual obligations is a fundamental goal in both domestic and international contracts, which has been addressed in both Shia jurisprudence (Fiqh Imamieh) and the principles of international commercial contracts. This paper, employing a library-based study and a descriptive-analytical approach, demonstrates that Shia jurisprudence benefits from several key advantages: "clarifying the structure of the conceptualization of this principle," "explicitly stating the principle of the immediate performance of contract terms," "the urgency of executing contractual obligations without dependence on a demand for performance," and "conditioning the acceptance of early performance on the absence of disproportionate harm to the obligee." By adopting a more contemporary and realistic perspective, Shia jurists can enhance the effectiveness and applicability of legal rulings in today’s fast-paced commercial transactions by referencing sources such as "commercial customs and practices" and by incorporating the condition of immediate performance, which is emphasized and advocated by UNIDROIT.

Mr Abdul Karim Eskandari,
Volume 2, Issue 4 (9-2024)
Abstract

One of the important elements of the International Criminal Court is the prosecutor. The prosecutor is responsible for managing the prosecutor's affairs. The prosecutor has deputies and advisors with legal expertise related to various issues, especially sexual assault, gender-based violence, and child abuse. The prosecutor has important duties and powers at the investigation and prosecution stages and the trial stage that ensure and facilitate the International Criminal Court's access to its intended goals. The question is, in which situation can the prosecutor investigate and prosecute those accused of international crimes and exercise his duties and powers? The present article attempts to answer this question and examines it using a descriptive-analytical method. From the review of the Rome Statute and the documents related to the International Criminal Court, it is clear that by referring the situation of one or more international crimes by the member states or the United Nations Security Council to the Prosecutor of the International Criminal Court or considering the information received by the Prosecutor about the most heinous international crimes, he can collect information from reliable sources on the matter and conduct the necessary investigations and, if he finds reasonable and credible reasons in the field, request authorization from the Pre-Trial Chamber of the International Criminal Court for a formal investigation and, with the approval of the Pre-Trial Chamber, exercise his powers in the pre-trial and post-trial stages.

Mr Mohammad Reza Marefat,
Volume 2, Issue 4 (9-2024)
Abstract

Today, development and environment have become important and significant propositions in the international system and international law. Having the right to develop after the Renaissance period has caused irreparable damage to nature and the environment; therefore, in recent years, realizing the importance of the environment, human societies have tried to modify the concept of development with the concept of "sustainable development." Sustainable development is both a right and a duty, and there is an effort to create a balance between human-centeredness and bio-centeredness, and the formation of the concept of sustainable development has caused that today the principle of sustainable development and the principle of environmental protection are presented as acceptable principles among all civilized nations of the world. Governments, as the main person of international law, since they both manage the development process and have the greatest influence in the use and interaction with the environment, today, they play an essential role in realizing both principles. From this point of view, several international documents, including the Stockholm Declaration (1972), the World Charter of Nature (1982), the Rio Declaration (1992), and the third draft of the Solidarity Rights Charter (1982), have committed governments to achieving sustainable development along with protecting the environment. These documents have caused the governments to be responsible for the environment and its preservation, as they are responsible for the realization of development.

Mr Mohammad Ali Heydari,
Volume 2, Issue 4 (9-2024)
Abstract

Since the beginning of Islamic societies' acquaintance with Western civilization and culture, various approaches have been seen in response to this phenomenon; some Muslims, ignoring the encounter with Western culture, have continued the same way of life as before they became acquainted with this civilization (traditional approach), because this view, ignoring the developments that have occurred, wants the continuation and continuity of the same lifestyle based on centuries-old customs and traditions and takes a strict and restrictive stance towards the totality of women's rights and their right to education. Some other Muslims, in the face of Western civilization and the influence of Western culture, have not shown a passive attitude; rather, they have resisted it with an active stance, which has emerged in a negative or positive form and acceptance of existing realities and finding a faithful solution in the new conditions of life. The negative view of Western civilization is the neo-Salafist view, or the contemporary view that places serious formal and substantive restrictions on women's political, social, and cultural rights and the right to education. A cautious perspective that accepted some realities in the face of Western culture and civilization is the reformist jihadist approach. This research has examined the above methods for the right of women to education in Islam.

Mr Wahidullah Hamidi,
Volume 2, Issue 4 (9-2024)
Abstract

Cyberspace is an electronic environment through which digital information is produced, sent, received, stored, processed, and deleted. Cyberspace has made committing crimes very easy and accessible to everyone by providing the absence of spatial and temporal limitations. With the advancement of technology and the storage or transfer of secret information by governments or large companies, the use of cyberspace and the storage and transfer of this information in it has made committing this crime more possible. Therefore, anyone who wants to obtain information can access the secret information of a country with a computer and does not need to spend exorbitant costs to send someone as a spy or military and equipment support. Rather, it is very easy, and through cyberspace, this possibility has been provided to collect secret information. Therefore, questions arise as to who can access this information and who can commit this crime. What reaction has been taken against those who illegally access this secret information? These questions are answered by the descriptive-analytical method and using library sources. This crime may be committed by ordinary people or by someone who has access to authority. If the perpetrator is a citizen of a domestic or foreign country, he will be dealt with differently in Afghan law. But in Iranian law, this distinction does not exist. People who have the authority to access and protect secret information must, by law, keep secret information in such a way that it does not fall into the hands of unauthorized persons; otherwise, they must be punished. This issue has not been predicted in Afghan law. Also, violating the security measures of the systems in Iranian law has been considered a crime, while Afghan law has not addressed this issue.

Mr Mohammad Rahim Asghari,
Volume 2, Issue 5 (11-2024)
Abstract

The subject of this article is the basics of physician liability in the actions and practices of the physician, which have been examined in a comparative manner in the jurisprudence and laws of Afghanistan and in a descriptive-analytical manner, from the perspective of the venerable jurist, Grand Ayatollah Mohseni (RA), including the basics that he has accepted or rejected with reason; if medical procedures are carried out in good faith and in compliance with technical principles and with the consent of the patient or his legal representative, or in emergency situations and based on medical emergencies, they are worthy of appreciation and promotion. If a doctor does not perform his duties properly and due to negligence and negligence, his actions result in criminal consequences, he is liable for any criminal, civil, administrative, disciplinary, and moral liability; this is the case when, despite observing all technical points, the opposite of the intended effect is achieved and human or financial losses are imposed on the patient; on the one hand, the damage is attributable to the medical practice and according to some jurisprudential rules such as the principle of no harm, the principle of waste, the principle of non-invalidation of blood, etc., the doctor is considered responsible; on the other hand, the doctor has carefully performed the scientific and technical principles that require acquittal; therefore, the responsibility or acquittal of the doctor is debatable; if we believe in acquittal; the bases of the doctor's non-liability must be explained according to Islamic jurisprudence and Afghan law; this article seeks to explain the scientific reasons for this theory, from the perspective of the eminent jurist, Grand Ayatollah Mohseni (Holy Serah Quds), with an emphasis on Afghan jurisprudence and laws.

Mr Abdul Khaleq Shafaq,
Volume 2, Issue 5 (11-2024)
Abstract

An oath is one of the proofs of a lawsuit, and it consists of taking God's witness for news that is right for one's own benefit and to the detriment of another. Leaving the fate of the dispute to the oath as a spiritual tool is done in cases where no other valid reason can be presented to prove the subject of the dispute. In such a case, either the plaintiff's claim should be accepted without reason or a judgment should be issued against her, which neither of these two solutions is based on justice and there is a possibility of losing the right. In view of this problem, the legislator, by foreseeing a legal institution called oath, has left the fate of the lawsuit to the conscience to reveal the truth by relying on God and fearing the punishment of perjury. Considering the importance of the subject, this article has examined the role of oath in proving civil claims in Afghan law, and also evaluated the possibility and impossibility of realizing the conflict between the decisive oath and other proofs of the claim and concluded that the possibility of realizing There is no conflict between oath and other evidence.

Mr Mohammad Isa Fahimi,
Volume 2, Issue 5 (11-2024)
Abstract

Prevention, organization, and control of childbearing in order to reduce the population, with the belief that population growth causes poverty, destitution, and many difficulties such as deprivation of health, educational, and upbringing services for the people of the society, has been considered for a long time and has been at the top of economic priorities and planning and has been seriously pursued and followed up, so that supporters of reducing childbearing consider it the only solution to overcome livelihood and economic difficulties to prevent and reduce the increase of the human race, and in practice it has been on the agenda of many governments. As a result of the propaganda and dissemination of such views, many people today voluntarily take action to control childbearing by using various methods to prevent fertility. The main reason for the desire and interest of families is the preference for childbearing for the stability of the material and living situation, which is thought to lead to limiting the reproduction of the generation. From a religious and Quranic perspective, controlling childbearing under the pretext of possible livelihood and economic difficulties is unacceptable and forbidden. In the religion of Islam, the teachings There is an emphasis on marriage and procreation in the Islamic Ummah, which all Muslim Ummah members are called upon and encouraged to do. Muslim scholars unanimously consider stopping and delaying fertility without the need for false excuses such as poverty, hardship, and insufficient resources to be ignorant, pessimistic, and contrary to reality.

Mr Ali Ahmad Rezaie,
Volume 2, Issue 5 (11-2024)
Abstract

The judge's knowledge is one of the pieces of evidence for proving a claim and ways of proving a crime in Islamic jurisprudence and law, and since the main origin of Afghanistan's statutory laws is jurisprudence, it was necessary to examine the basis and scope of the judge's knowledge and the quality of citing and issuing a ruling according to it from a jurisprudential and legal perspective. The purpose of this research is to analyze jurisprudential data based on contemporary jurisprudence and the procedures of the Afghan legal system in the field of the validity of a judge's knowledge by adopting a descriptive-analytical research method.
The research findings show that the famous opinion of Imamiyya jurists, citing rational and narrated evidence (verses, narrations, and consensus), on accepting the judge's knowledge in proving crimes, has become well-known among jurists. Of course, the infallible Imam (a.s.) can rule. according to his personal knowledge, but there is a difference of opinion among jurists regarding an infallible judge. A number of jurists, who may be famous, believe that a judge can act on his own knowledge in all crimes, including the rights of Allah, such as adultery and theft, and the rights of the servant, such as retaliation and slander. The famous opinion of the later Sunni jurists is that the knowledge of a judge is not valid in the rights of Allah and the rights of the servant. However, in the statements of some modern and contemporary Sunni scholars and also the position of the Afghan legal system, The validity of the knowledge of a judge is used in cases that he has acquired. knowledge of himself. Because this knowledge is stronger than the knowledge obtained through other methods of proof compared to other evidence

Mr Alijan Fahim,
Volume 2, Issue 5 (11-2024)
Abstract

The main topics discussed in this article essentially include two points. First, the adoption of measures for the release of suspected and accused, which can be achieved through release with a verbal commitment, obtaining a summons guarantee (guarantee by another one), and financial guarantees. These measures, which are implemented in support of the freedom of the suspected and the accused, are prioritized in both the Canadian and Afghan legal systems. The second point concerns stricter measures, such as the detention of suspected and accused. This measure is applied for protecting the interest of the society. The difference lies in the fact that in Canadian law, a peace officer has the authority in criminal security measures, including the issuance of a summons, subpoena, and commitment. However, in the case of judicial supervision measures, such as ensuring compliance with conditions of release or pretrial detention of the accused, a peace judge or judge has the jurisdiction, and both the accused and the prosecutor have the right to object, agree with certain decisions, or disagree with some court decisions. Prosecutors in countries like Afghanistan and Iran have the authority to impose pretrial detention, but in Canada, this authority is not granted to prosecutors. The research method used in this article involved reviewing the laws of the countries under study and a number of related books. In other words, an analytical-descriptive (library-based) an approach has been adopted. The main question of this article is: How are criminal security measures and judicial supervision defined in the laws of Canada and Afghanistan? In response, it can be said that it seems these measures in both systems began with a lenient approach in favor of the suspect and accused and have moved toward stricter measures in the interest of society. In other words, the priority is to protect the freedom of the suspect and the accused.

Mr Qasem Ali Sadaqat,
Volume 2, Issue 5 (11-2024)
Abstract

The right to sustainable peace is an example of the third generation of human rights and has foundations, including the inherent dignity of man, which has certain functions, and these functions have been considered in this article in an inductive and deductive manner with the aim of analyzing and explaining their functions and benefits. Naturally, in any society where human dignity is respected, the right to sustainable peace is justified and legitimate, and at the same time, it also determines its scope and scope. In the event of incompatibility of negative peace with justice, equality of opportunity, and the first and second generations of human rights, negative peace will not prevail. Because if negative peace is established at the cost of violating the aforementioned issues, human dignity will be violated. Similarly, torture will not be justified and legitimate in order to guarantee negative peace, because torture is against human dignity. Moreover, ensuring traditional security cannot violate the right to sustainable peace. Ultimately, sustainable peace is dependent on the realization of justice and equality of opportunity, because human dignity is the guarantee of all.


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