esmaehl rahimi nejad; mehdi aghayari; gholamreza gholipour
Volume 3, Issue 11 , June 2015, , Pages 85-112
Abstract
Restorative justice as a new approach in the field of criminal law seeks to compensate damages resulted from crimes and repair interrupted relationships. The important point here, is uderstanding the theoretical bases of this concept. In the present research, the theory of neutralization of crime ...
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Restorative justice as a new approach in the field of criminal law seeks to compensate damages resulted from crimes and repair interrupted relationships. The important point here, is uderstanding the theoretical bases of this concept. In the present research, the theory of neutralization of crime was studied as one of the theoretical bases of restorative justice in order to determine the relationship between these two. According to this theory, the offender despite being aware about wrongfulness of his action, tries to neutralize the shameful picture of the crime through five techniques: “denial of the victim”, “denial of responsibility”, “denial of damages”, “loyalty to the upper commitments” and “condemnation of condemners”, and make it seem reasonable to pave the way for committing crime. Restorative justice programs make it possible for delinquent person to understand the wrongfulness of his act and its justifying techniques in a participatory and community-based process and accept the responsibility of his actions. This research analyses this issue with descriptive and analytical approach and by review article method.
Abolhasan shakeri; Mandana Rastegari
Volume 2, Issue 4 , November 2013, , Pages 87-106
Abstract
Abstract The legislator criminalized the invitation to suicide by enacting the cybercrimes Act 1388. According to this Act, if the invitation to suicide is considered as a crime, it shall be exclusively committed via computer systems, communication systems and data carriers. The way of committing this ...
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Abstract The legislator criminalized the invitation to suicide by enacting the cybercrimes Act 1388. According to this Act, if the invitation to suicide is considered as a crime, it shall be exclusively committed via computer systems, communication systems and data carriers. The way of committing this crime is not important, not restricted and it does not matter whether suicide is committed in the way that caller prefers or not. The invitation to suicide is not bounded to consequence although the specific intent including special intent of invitation to suicide, is essential for committing the crime. If suicide pact includes invitation to suicide by computer and communication systems and data carriers, it will be considered as a crime. Invitation under the condition is also considered as an invitation to suicide and it should also be noted that disregarding the invitation by caller does not invalidate the crime.
Farid mohseni; Saeed Johar
Volume 3, Issue 8 , October 2014, , Pages 87-113
Abstract
The specialization of responsibility branches, is a new attitude in science of law. Basically, the main purpose in imposing a variety of responsibility, is the compensation whether from unit or the community, and professional responsibility branches, makes it possible to be the best form of compensation. ...
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The specialization of responsibility branches, is a new attitude in science of law. Basically, the main purpose in imposing a variety of responsibility, is the compensation whether from unit or the community, and professional responsibility branches, makes it possible to be the best form of compensation. One of the responsibility branches is social responsibility. This type of responsibility is social responsibility arises as a result of social obligations breach different from other type of responsibility. The position of this branch of responsibility and its relationship with the traditional responsibility branches especially the criminal responsibility and separation or participation is the subject of this article.
mohsen borhani
Volume 3, Issue 10 , April 2015, , Pages 89-112
Abstract
Abstract As the result of the Guardian Council’s objections to the Islamic Penal Code, a kind of punishment as "Sharia-based Ta'zir" has actually entered the Iranian criminal justice system to which a number of rules cannot be applied According to Clause 2 of Article 115 of the Islamic Penal Code. ...
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Abstract As the result of the Guardian Council’s objections to the Islamic Penal Code, a kind of punishment as "Sharia-based Ta'zir" has actually entered the Iranian criminal justice system to which a number of rules cannot be applied According to Clause 2 of Article 115 of the Islamic Penal Code. Understanding the bases of this particular kind of punishment, its quantity in our criminal law, the consequences of its entrance into the Islamic Penal Code, and eventually the criticism of the approach adopted by the legislature are followed in this article. It is claimed here that the enactment of this kind of punishment has almost no considerable positive effect and adversely it causes a lot of confusion among jurists and creates the possibility of violation of the rights of the convicted.
Mahdi Sheidaeian; seyed jafar eshaghi; Zahra Rajaei
Abstract
The right to be free from torture is known as an inalienable right. In article 38 of our Constitution, it has been declared absolutely forbidden. Hence, struggling against torture is of meritorious legal and cultural status. Amid non-suppressive methods, the situational prevention is known as an applicable ...
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The right to be free from torture is known as an inalienable right. In article 38 of our Constitution, it has been declared absolutely forbidden. Hence, struggling against torture is of meritorious legal and cultural status. Amid non-suppressive methods, the situational prevention is known as an applicable approach with visible returns. Due to these features, this paper, based on accepting the possibility of exercising the situational prevention on torture crime, deals with recognizing effective situational preventive contrivances in decreasing this crime; contrivances like: contrivance for increasing hardship in committing crimes like immediate access of defendant to judiciary officials, contrivance for omitting justifiers like decreasing the demonstrating value of confession, contrivance for decreasing benefits ensued from crimes like nullifying the information ensued from torture, contrivance for increasing the risk of committing crime like supporting the presence of lawyers in the early processes of judgment and video surveillance during investigation process. In this text we have shown that the best place to predict these contrivances is Code of Criminal Procedure and accordingly recently enacted Iranian Code of Criminal Procedure is examined from this perspective and meanwhile embossing the innovations of this area, we have pointed out some of the removable shortcomings.
Amir Hassan Niazpour
Volume 2, Issue 6 , April 2014, , Pages 91-111
Abstract
AbstractCrime prevention is of the main strategy in criminal policy which hasbeen always paid attention for the purpose of controlling the criminalactivity. The significance of the strategy is so considerable that theprevention of crime has been officially recognized beyond the Acts ofparliament i.e. ...
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AbstractCrime prevention is of the main strategy in criminal policy which hasbeen always paid attention for the purpose of controlling the criminalactivity. The significance of the strategy is so considerable that theprevention of crime has been officially recognized beyond the Acts ofparliament i.e. constitutional law. This policy has led to provide the“Constitutionalization of crime prevention law".In law of Iran, this strategy stays with the specific status according to theCouncil of Experts in the form of several principles. In fact, the prevention ofcrime has received special attention through some principles ofconstitutional law which has made the institutes responsible to take theaction in the framework of policies revolving the crime prevention. Thisarticle attempts to examine the Constitutionalization of substantive law (A)and the Constitutionalization of procedural law (B) in the area of preventionof crime.
ghodratolah khosroshahi; hosseine javadi hossenabadi
Abstract
The present study aims to examine the relationship between religious identity and youth crime prevention on Isfahan University students. Method of research was descriptive of correlation and with self-reporting. All of the students of Isfahan University formed the number of statistical community (N= ...
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The present study aims to examine the relationship between religious identity and youth crime prevention on Isfahan University students. Method of research was descriptive of correlation and with self-reporting. All of the students of Isfahan University formed the number of statistical community (N= 11241) and just 731 individuals were selected (n=371) as the random example. The tools of researcher for collecting information on the religious identity was based on the religious identity components Glock and stark; in the case of perpetration of crime, it was based on the self-reporting which was confirmed by five scholars and its validity and subject experts with religious identity for cronbach's alpha coefficient of 0.83 questionnaire and the questionnaire was calculated 0.85. In order to analyze the data from the descriptive statistics include frequency, percentage and mean and statistical inference including Pearson, factor analysis of variance analysis and multiple regression test was used. The findings showed that between religious identity and committing crimes (r =-0.402) there is a significant relationship. As well as between religious identity i.e. the ritual dimension, experimental, and consequence dimensions with committing crimes to arrange with the coefficient (r =-0.318), (r =-0.284), (r =-0.403) and (r =-0.375) there was a significant relationship. The result of step by step regression coefficient was also indicated in the first step and the next step after the second ritual faith is a crime rate Predictor. The findings also showed that the proportion of demographic factors in committing crimes among men is more than among women. This is while the average women in religious identity more than men to acquire.
Hossein Mohammad Kourepaz; Abdoulali Tavajjohi
Volume 2, Issue 5 , February 2014, , Pages 93-119
Abstract
In the Islamic criminal code essentials’ section (2013); we are observing thefundamental changes and innovations relating to the formercode. Theobjective of the legislator in increasing the essentials’ section is that it defendsthe society against the criminal phenomenon in different discussions ...
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In the Islamic criminal code essentials’ section (2013); we are observing thefundamental changes and innovations relating to the formercode. Theobjective of the legislator in increasing the essentials’ section is that it defendsthe society against the criminal phenomenon in different discussions ofcriminal laws and rights, especially, the regulations dominant on punishmentsby adopting reformist approaches by respecting the interests of the criminal.The institution of deferment of the sentence is a modern formation that hasbeen extracted and adopted from French law and has no background in lawtexts of our country. The mentioned institution that is used only in connectionwith the non-dangerous criminals (especially children), has been regulatedand adjusted to prevent the criminal labelingof such criminal group, andassisting to reform them.
Abstract
In the realm of rights and supports for victims, many innovations in the new act of Criminal Procedure, following the new approach to criminal justice such as restorative justice, and supportive victimology have been permitted. We have already observed this approach in the Statute and the procedure of ...
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In the realm of rights and supports for victims, many innovations in the new act of Criminal Procedure, following the new approach to criminal justice such as restorative justice, and supportive victimology have been permitted. We have already observed this approach in the Statute and the procedure of the International Criminal Court, which is the result of the interaction of legal representation in most countries, especially the two great systems, i.e. common law and Roman and Germanic. A comparative study shows that Iranian legislator, despite detecting new rights for the victim, is still encountering shortcomings such as the lack of explicit identification of legal entities as the victim, ignoring the right to have a lawyer for the victim in the investigation stage, not enjoying the appropriate medical and psychological care and support, not consideration the closed and the wrapping notifications in order to keeping hidden and secret identities of victims and lack of necessary sanctions for the violation of the rights provided for them. Yet, the biggest challenge for the Court is incoherence and not formulating the active participation of victims in the prosecution and investigation stages and their lack of proper legal guidance.
Hossein Mir Mohammad Sadeghi; Rasoul Abed
Volume 1, Issue 1 , October 2012, , Pages 97-120
Abstract
At the international level, like national level, there are certaincriminal behaviours which may pervert the right course of justice.Many ad hoc international courts have, in the course of their activities,faced the problem of how to deal with these offences. They usuallytried to justify their jurisdiction ...
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At the international level, like national level, there are certaincriminal behaviours which may pervert the right course of justice.Many ad hoc international courts have, in the course of their activities,faced the problem of how to deal with these offences. They usuallytried to justify their jurisdiction in triying these offences on the basisof the inherent jurisdiction they have in trying the core crimes, anapproach which has been criticized by many lawyers.Based on such an experience, Articles 70 and 71 of the Statute ofIntenational Criminal Court have been allocated to offences againstthe administration of justice, which will be discussed in this article. Inthe first part, a brief history of the subject is given. The seconf part isallocated to the study of the process leading to the aadoption ofArticles 70 and 71 and to the segestions given by states in this respect.In the final sections, offences against the administarion of criminaljustice, their trying and the corporation of the member states with theI.C.C in this regard has been discussed
Abstract
The majorities of authors have been interested in the moral element of unintentional offenses and have not been sufficiently interested in the issue of the material element and the legal element of these offenses, so this has sparked an amalgam. These authors did not make any difference between formal ...
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The majorities of authors have been interested in the moral element of unintentional offenses and have not been sufficiently interested in the issue of the material element and the legal element of these offenses, so this has sparked an amalgam. These authors did not make any difference between formal offenses and result offenses that also amused an amalgam. The French legislature refers for the first time to the question of the moral element of unintentional offenses in the 1994 Penal Code. The Iranian Penal Code also refers in this regard to Article 125 of the new Penal Code. Nevertheless, these codes have disadvantages on this subject. First, we are interested in the issue of the difference between formal offenses and outcome offenses, and then we address the issue of the moral element of these offenses.First, we are interested in the issue of the difference between formal offenses and outcome offenses, and then we address the issue of the moral element of these offenses.
Gholamhasan Koushki; Nader Alizadeh Seresht
Abstract
One of the most significant jurisdiction of the Revolution Court is to
investigate crimes which are against the public security. However, there are
two categories regarding the concept and the realm of crimes against public
security. First, there is a broad interpretation approach toward such crimes
committed ...
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One of the most significant jurisdiction of the Revolution Court is to
investigate crimes which are against the public security. However, there are
two categories regarding the concept and the realm of crimes against public
security. First, there is a broad interpretation approach toward such crimes
committed inside and outside the country which is mostly based on some
provisions such as clause (T) of article 303 cited in the criminal procedure
law. Secondly, there is a narrow interpretation on the realm of such crime
which is more favorable in jurists’ eyes. I attempt to investigate the “broad
interpretation approach” to find its contradictions to the many principles of
procedure. Beyond such interpretation, there are some temporary
consultations to find the best policy such as swift and decisive investigation
that will drive the fair trial, supposed to guarantee the individuals’ rights,
into a corner in the long term and redouble the importance of minimalistic
interpretation regarding the crimes against public security which are about
to be heard in the Revolution Court.
RAJAB GOLDOST; MAHDI GHOLAMPOR; HOSSEIN NAZERIAN
Volume 1, Issue 3 , July 2013, , Pages 99-117
Hadi Rostami; farhad mirzaei
Abstract
There are no fixed criteria for sentencing across all penal justice systems and they often vary as a result of social circumstances. Apart from having been rooted in its philosophical and ideological fundaments, punishment is a social event which is directly affected by industrial development and civilization ...
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There are no fixed criteria for sentencing across all penal justice systems and they often vary as a result of social circumstances. Apart from having been rooted in its philosophical and ideological fundaments, punishment is a social event which is directly affected by industrial development and civilization progress. An offense is a personal choice since it is normally a consequence of an individual’s reason whereas punishment is an act of collective wisdom following common reasoning of a group. Even though violence is still prevalent in crime in all societies, civilized humans are not allowed to openly apply violence in punishment and no one simply accepts to use it as harsh punishment. At present, employment of violence by the government as part of punishment is subject to such a lot of restrictions that governments do not possess their former freedom in punishment anymore. Demonstration of severity of punishment has gradually disappeared and now punishment systems have been transformed and rationalized due to modern civilization. Along with modernity, apparent demonstration of violence in the form of death carnivals has left the social scene and logic and modern rationality have set in throughout all aspects of human life, especially social reaction to crime.
General and exclusive criminal law
Abdorreza Lotfi; Reza Dehghanian
Abstract
According to Imami jurisprudence and the Islamic Penal Code of Iran, committing adultery in some circumstances may result in a minimum punishment and in other circumstances, may be subject to a maximum punishment. This issue is very important in the penal system of Islam and the criminal laws of Iran. ...
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According to Imami jurisprudence and the Islamic Penal Code of Iran, committing adultery in some circumstances may result in a minimum punishment and in other circumstances, may be subject to a maximum punishment. This issue is very important in the penal system of Islam and the criminal laws of Iran. Considering that one of the examples of the application of the minimum punishment is the Lack of Ehsan for a man or a woman, and according to Article 227 of the Islamic Penal Code of Iran, travel excludes husband and wife from the Ehsan, This question is raised that traveling in the absolute sense can cause the perpetrator of adultery to leave the Ehsan or other conditions are necessary? Considering the descriptive-analytical study of the views presented in this research, it seems that the basic feature of Ehsan for passengers is the existence of a customary ability to have a marital relationship with the wife or husband at any time he or she wants. On the other hand, presenting a model of religious distance as a criterion for leaving Ehsan is contrary to the content of popular narrations. Therefore, determining the religious distance as a criterion for leaving Ehsan will not be compatible with the criterion of customary ability as the famous saying of the jurists, which has been discussed in detail.
mohamad javad fathi; seyed vahid abolmaali alhoseini
Abstract
The cases which can be counted as searching and seizing the evidence without
needing the legal warrant,are situations proposed as “Third-Party Consent”
doctrine. In the American system, officials can search any place or object
without having a warrant or even a probable cause, provided ...
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The cases which can be counted as searching and seizing the evidence without
needing the legal warrant,are situations proposed as “Third-Party Consent”
doctrine. In the American system, officials can search any place or object
without having a warrant or even a probable cause, provided that a person
authorized to consent voluntarily agrees to the inspection. This doctrine has
always been involved with two issues including determining: “Third-party
consent territory” and “the identity of the authorized persons to consent”.
Gradually, foundations of doctrine were challenged and it was claimed that it did
not have the capability of surviving in the current situation and according to its
old understanding. In fact, the arrival of modern technology in the age of
communication and in the cyber territory due to the change of subjects and the
conceptual transformation of the doctrine in the field of technologies, it has
faced many challenges. Doubts towards efficiency of the doctrine became
apparent when it was observed that almost all services in the current age are
being provided by Third-Party; hence, the traditional reading of the Doctrine
leaves no trace of privacy. In this review, we will explain the Third-Party
Doctrine in the cyber environment.
mohammadali hajidehabadi; ehsan salimi
Abstract
A review of criminal law clearly reveals that in Iran's legal system, there is no particular logic of penalization, and in these laws, many inappropriate penalties exist in terms of type, degree and inefficiency in achieving the goals. Cliché and irregular punishments not only result in failure ...
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A review of criminal law clearly reveals that in Iran's legal system, there is no particular logic of penalization, and in these laws, many inappropriate penalties exist in terms of type, degree and inefficiency in achieving the goals. Cliché and irregular punishments not only result in failure to meet the goals of punishment, but leads to undesirable and adverse effects on the perpetrator. Determining the appropriate punishment and the optimum level of efficiency, is very complex issue and requires attention to many components. The present article, which Seeks to the identify purposeful penalization model, insists that the legislator must, in each crime, before any other issues should determine his "Main purpose" and choose the type of punishment according to that goal, and avoid from totalitarianism for acquisition of opposite objectives. Regarding the amount of punishment, the legislators should also consider the ease and advantages of committing a crime, the dark figure of crime, the commonness of crime and the relationship of crimes with each other, while at the same time, in line with the principle of individualizing punishment and increasing the positive effect of punishment, The judge must give more authority to determine the amount of punishment.
Arian Petoft
Abstract
According to Article 91 of the Penal Code, any kind of doubt on the "intellectual development and perfection" of a child causes the punishment of Hadd and Qisas to fall. In fact, by expressing this concept, the legislator has taken a valuable step towards the transcendence of the principles of criminal ...
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According to Article 91 of the Penal Code, any kind of doubt on the "intellectual development and perfection" of a child causes the punishment of Hadd and Qisas to fall. In fact, by expressing this concept, the legislator has taken a valuable step towards the transcendence of the principles of criminal law for children and adolescents; but at the same time, due to the ambiguity and theoretical shortcomings, this issue is associated with many intellectual conflicts among legal scholars. If this concept and its relationship with intellect in the field of criminal responsibility are not well clarified, multiple practices in criminal proceedings in this regard will be expected. Intellectual development is a concept that inherently related to some of the basics of neuroscience. Therefore, the present study strives to explain this concept in the context of neurolaw and to determine its achievement criteria. In this regard, using the valuable experience of the American jurisprudence to localize its mechanisms and legal teachings in our country's criminal justice system can be very fruitful. The findings of this study, in addition to significantly eliminating scientific gaps in this field, provide judges with appropriate views and criteria regarding the intellectual development in juvenile delinquency.
Rahim Nobahar
Volume 2, Issue 7 , July 2014, , Pages 103-130
Abstract
There are some religious narrations prohibiting one to intercede foroffenders in Hodud (specific religious punishments). These narrations haveoften been construed and interpreted categorically and specifically referredto Hodud in its idiomatic and narrow sense, i.e. specific religiouspunishments. This ...
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There are some religious narrations prohibiting one to intercede foroffenders in Hodud (specific religious punishments). These narrations haveoften been construed and interpreted categorically and specifically referredto Hodud in its idiomatic and narrow sense, i.e. specific religiouspunishments. This understanding, in its turn, has led to form a differentialsystem of Had-Ta’zir. Through a critical study of the related narrations, theauthor concludes that the intercession in Had and Ta’zir is not as muchdifferent as it is understood in the traditional view. First, the prohibition ofintercession for criminals is not limited to those who have been convicted toHodud. Discriminatory and unwise intercession or the one which weakensthe certainty of punishment, are not acceptable- whether in Had or Ta’zirpunishment. Secondly, the prohibition of intercession for the offenders inHodud cases is not categorical. According to some evidences in the relatednarrations, it is allowed to intercede for wrongdoer provided that the casehas not been taken to the court yet; particularly when the case revolvesaround the right of people (rather than right of God) and the wrongdoer hasrepented and been corrected or the crime has been proved through theoffender’s confession
mohammad ali hajedehabadi
Abstract
A criminological study of preventive ways of the crimes against humanityAbstract:The crimes against humanity , a distaster of the 20th century and present times, have lead to the terrible human tragedies in the human societies. To find some vital strategies to prevent such crimes is a must since the ...
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A criminological study of preventive ways of the crimes against humanityAbstract:The crimes against humanity , a distaster of the 20th century and present times, have lead to the terrible human tragedies in the human societies. To find some vital strategies to prevent such crimes is a must since the high number of the victims and the casualties of these crimes is considered as a great threat to the international peace and security. To prevent these highly complex nature crimes requires a comprehensive plan, which seems to be impossible. However, this fact should not stop us from attempting to reach the necessary strategies to prevent such crimes. These strategies are studied from two perspectives: penal and non-penal ones. In the non- penal approach, according to the common and classical criminological classification, social and situational issues will be analysed here in. so as to materialize the ways to prevent these crimes.
seifollah ahadi
Abstract
In accordance with Islamic penal codes, deliberate crimes resulted in the right of Qisas, and along with that, the perpetrators of the offender were raised and recommended by the rightful owners. accordingly, the important issue to be addressed in this regard is how the two institutions are set up together. ...
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In accordance with Islamic penal codes, deliberate crimes resulted in the right of Qisas, and along with that, the perpetrators of the offender were raised and recommended by the rightful owners. accordingly, the important issue to be addressed in this regard is how the two institutions are set up together. Whether both entities are legitimated and the rightful owners have the same status in each of them, or there is no interrogation between the right of Qisas and amnesty and may one be absolutely and the other conditionally applicable? The author believed in the descriptive-analytical method after analyzing the arguments and judgments of jurists and jurists that under the general rule of law, the right to amnesty can be considered as absolute and contingent, subject to the right of Qisas, unless there is a specific reason to violate it. Therefore, in Article 432 of the Islamic Penal Code, which, according to some jurisprudents, is not sufficient if the survivor's property remains in order to pay his debts, The owners of the right to perceive retaliation, but they have the right to have their amnesty conditional on the guarantee of payment, It should be stated under the rule that due to
Abolfath Khaleghi; Parisa Saghafi
Abstract
In today's age, the Internet as a wide and important communication tool can be sanctioned based on Article 41 of the United Nations Charter and international laws under the guaranty of implementation. Despite this prediction, no clear action has been reported by the Security Council in this regard. Although ...
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In today's age, the Internet as a wide and important communication tool can be sanctioned based on Article 41 of the United Nations Charter and international laws under the guaranty of implementation. Despite this prediction, no clear action has been reported by the Security Council in this regard. Although in practice, these are the governments that apply this restriction against each other without any permission and legal order and accept such restrictions within the limits of their international treaties and legal principles, but this is only as long as the countries are within the scope of power. have not taken action. In this case, instead of being a guarantee of enforcement, the internet ban becomes criminal in nature and is condemned by another enforcement guarantee. With the studies carried out in this research, in a descriptive-analytical way, the internet embargo is expressed in two distinct concepts and examples, one time as a guarantee of implementation and another time as an international crime, and finally, this is expected from the Security Council with Such behavior that violates international security and peace on a macro level, such as war and internet terrorism, and the International criminal Court should apply the necessary procedures for judicial proceedings
Islamic jurisprudence
hassan pourlotfollah; Mahdi Movahedi Moheb; Khosro Momeni; ahmad mortazi
Abstract
The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some ...
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The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some examples in the codified criminal law and jurisprudence texts. This article attempts to re-examine the issue by presenting new analysis while critically studying the existing views. According to the famous Imami view, this agreement is not permissible and the right of qisas remains with the termination of the agreed organ. Therefore, it is necessary to pay the dues of the similar organs that have been cut off.The reasons of the famous view are as follows: the non-realization of the originality, the irreconcilability of the blood issue, the principle of non-substitution, the non-inclusion of the rule of body integrity, and the inclusion of the obligation of qisas in the original place. Indeed, due to the invalidity of the said agreement, according to the famous view, the left hand exchange (i.e. the fall of revenge from the right hand) has not been realized and on the other hand, the same exchange (left hand) has also been cut off.According to the second view, agreeing to amputate a similar limb instead of the main limb causes the right of qisas to fall and turn it into ransom. In such cases, on the one hand, the victim is entitled to receive diya for his right hand, and on the other, due to the amputation of criminal's left hand, he is required to pay diya. In fact, agreeing on left-handed qisas instead of right-handed qisas is like forgiving the victim of right-handed qisas in exchange for left-handed qisas. Of course, it should be maintained that victim with left-handed who agreed on qisas has abandoned right-handed qisas, not that he has turned it into diya since if his goal was to receive the diya for his right hand, he could demand it from the criminal, and there was no need for the agreed qisas of the left hand.According to the third point of view, in practice, there is an exchange between the place of qisas and its similar organ, and the similar organ replaces the retaliated organ, which will result in the fall of the victim's right of qisas. The evidence of the third view are the implied amnesty of the agreement, the possibility of a change in the organ's qisas and reference to the rules of harmlessness and exclusion.The present article, with a descriptive and analytical method, while critically examining the jurisprudential foundations of the mentioned viewpoints and giving a reasoned preference to the promise of deserving punishment as a result of the agreed qisas of the similar organ, believes that such agreements and compromises can be based on. He considered it to be correct and legitimate and considered its provisions to be enforceable. In this regard, while studying the sayings and proofs of the jurists, by presenting proofs beyond the documents that have been presented for the third point of view, this opinion has been strengthened, the proofs of the illegitimacy of the agreement on the same organ's reparations are also disputed.The pieces evidence of the selected point of view are as follows:Analyzing the issue based on the aspect of the right of qisasThe basic rule in law is that the authority is in the hands of the right holder, and transferability, revocation, compromise, pardon, and forgiveness are among its accessories. So, first of all, since revenge is a special right of the victim, then it must be possible to judge the legitimacy of such an agreement. Secondly, considering the fact that the tortfeasor, even for free, can waive his right, then as a priority, he will be able to waive his right of qisas by agreeing to the qisas of the similar organ. Thirdly, due to the personal nature of the right to qisas in crimes against the soul, it is not possible to execute qisas without demanding compensation from the victim. Therefore, ruling to invalidate the agreement and re-implementation of qisas is contrary to this Muslim rule.Analyzing the problem in terms of substantive similarityBased on numerous pieces of evidence, there is a balance between the interests and functions of similar organs; which can be cited in order to prove the legitimacy of the aforementioned agreement.Applying the verse of qisas; From the honorable verse "Write down against them, that the soul is in the soul and the eye is in the eye and..." (Ma'idah/45), which explains the law of execution of qisas due to the necessity of similarity, it can be used that the paired body parts that are opposite each other and the ruling of qisas. They are exported, regardless of the right and left, they are considered similar to each other.Habib Sajestani's narration from Imam Baqir (a.s.): "Regarding the rights of Muslims, where a person has a hand, the hand should be placed against the hand..."Homogenization of similar organs in the verse; The chapters on limb amputation are used in the works of jurists, whose view of similar limbs is almost likeness and ruling on punishment of left hand in case of lack of right hand, based on this basis.From the point of view of custom, the organs of the pair are considered similar, and characteristics such as right and left are not considered by custom.Problem analysis based on the philosophy of qisas; The main purpose of the law is to legislate qisas punishment, deterrence, providing security and life of the society and healing the wounded feelings of the victim and the society. It seems that both of the aforementioned goals can be achieved with the agreement of similar organs.Arrange rational purpose for agreement.First: It is possible that rational and valuable effects and benefits will be obtained from the said agreement. Secondly: It is possible that the motive of benevolence is also desired in the qisas of the similar organ.Requirement of No Harm and The Dar'e RulesThe verdict of non- qisas ultimately leads to the qisas of two life organs for one victim. Therefore, referring to the harmless rule, the fall of the right of qisas against the victim is explained.Also, the rule of Dar'e, also includes qisas, and with the qisas of a similar organ, the legitimacy of re-implementation of qisas is questioned, the fall of the right of qisas seems more appropriate.Legal evidencesAlthough the legislature of Iran has not explicitly commented on this matter, according to the articles 347, 361, 363 and 365 of the Islamic Penal Code, conciliation and agreeability of the right of qisas, in each of the stages of prosecution, proceedings and execution, has clearly accepted and considered the right of qisas to fall and the hypothesis of this article is confirmed.
Javad salehi
Abstract
Request for criminal or criminal prosecution of cross-border offenses in the territory of the European Union has a pattern of mutual cooperation, the principle of mutual recognition and the provision of criminal investigations. This is an alternative approach to the Transnational Criminal Procedure Code ...
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Request for criminal or criminal prosecution of cross-border offenses in the territory of the European Union has a pattern of mutual cooperation, the principle of mutual recognition and the provision of criminal investigations. This is an alternative approach to the Transnational Criminal Procedure Code and to the harmonization of the internal rules of the member states of the European Union, which now does not provide for the conditions for its implementation in the European Union. It is believed that the field of harmonization of the domestic laws of member states is consistent with the principles of the criminal procedure with the experience of mutual cooperation, mutual identification and criminal investigation. However, the principle of mutual recognition and criminal investigations has serious gaps that, until these problems are resolved, there is no prospect of harmonizing the internal laws of the member states. Mutual identification or criminal investigation of non-criminal acts that are subject to the termination of the law, differences in the standards of criminal law, or in conflict with national sovereignty and red lines have failed. Same is true of the adoption of the Transnational Criminal Procedure Act and the harmonization of the laws of member states in the future.
abbas shiri varnamkhasti
Abstract
Abstract Criminal Investigation Rights focuses on laws and regulations to discuss crime detection, identification of the accused, proof of delinquency, identification of the victim and determination of material and moral damage to him. Criminal investigation processes begin with a victim's complaint, ...
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Abstract Criminal Investigation Rights focuses on laws and regulations to discuss crime detection, identification of the accused, proof of delinquency, identification of the victim and determination of material and moral damage to him. Criminal investigation processes begin with a victim's complaint, the announcement of official and informal officials, information by legal and natural persons, victim supporters, or the detection of a crime by the police. The main challenge at this stage is the lack of complaints and the reporting of victim to the police and criminal justice institutions. Victimization examination and crime scene investigation are the main axis of the criminal investigation law. The testimony of intuition, testimonials, and expert reports are effective in discovering the truth and proving criminal misconduct, which is always part of the topic of criminal investigation rights. In the past, the law of criminal investigations focused on delinquent, victim studies have caused criminal investigations to pay attention to the role of the victim.
