General and exclusive criminal law
Abbas Mohammadkhani
Abstract
Qisas, as one of the most important punishments that has entered Iran's criminal laws from Sharia sources, has causes and obstacles that distinguish it from other punishments. The present article, which is written with a descriptive analytical method, is in the position of explaining the obstacles to ...
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Qisas, as one of the most important punishments that has entered Iran's criminal laws from Sharia sources, has causes and obstacles that distinguish it from other punishments. The present article, which is written with a descriptive analytical method, is in the position of explaining the obstacles to the implementation of qisas and their practical application, as well as the separation of these obstacles from the obstacles to proving qisas and the causes of its downfall, which will also have important practical effects. According to this research, the obstacles to the implementation of qisas in the Iranian law are the obstacles that hinder its implementation despite the existence of qisas, and despite them, the perpetrator's qisas is canceled forever or for a period of time. Known or unknown will be delayed. These obstacles are of two categories. Some categories, such as the pregnancy of a woman and the need to pay the ransom to the perpetrator by the the victim’s heirs, only temporarily stop the execution of qisas, in which case the owner of the right to qisas has no choice but to either forgive and or to wait until the obstacle is removed and then executes qisas. Therefore, he cannot demand ransom from him without perpetrator's consent. But another group of obstacles to execution of qisas are obstacles that permanently or for an indefinite period exclude the possibility of execution of qisas, which include the death of a person or escape and lack of access to him. In this assumption, the legislator, following the opinion of some jurists, has considered the owner of the right of qisas to demand ransom even without the consent of the perpetrator; without considering the right of qisas to be void in the cases where the possibility of qisas is provided later, in the latter case, if the owner of the right has not waived his right, he can demand the execution of qisas by returning the payment. Similar to the situation where the perpetrator is arrested after the escape of a person and taking the ransom from his property. The only exception to this among the obstacles with an indefinite period is the situation in which, despite issuing a sentence for qisas, its execution requires the payment of ransom to "some of victim’s heirs", such as when some of heirs forgive the perpetrator and others demand ransom. Therefore, heirs demanding qisas will first give the share of the pardoners to perpetrator and give the share of the rest to them and then execute the qisas.Hence, in line with the articles 450 and 558 of the Islamic Penal Code, differentiation between the impermissibility of qisas and its impossibility, in any case where execution of qisas is not possible for an indefinite period, the owner of the right, while maintaining his right, is allowed it will be on demand. Therefore, if one of the conjoined twins commits an murder, even though qisas is not applicable in order to avoid harm to the other person, and the owner of the right can demand ransom, but if some time after that, If the said twins are separated, the right of qisas will still be applicable; Such a thing clearly shows the difference between the obstacles to execution and the causes of its downfall. It is not permissible to carry out qisas in the causes of qisas, and if the owner of the right harms a person after it has fallen, he has committed a crime that will be subject to qisas. Contrary to the obstacles of execution of qisas, which, despite the permissibility of execution of qisas, it is not possible to apply it, and therefore, whenever such a possibility is provided, its permissibility will remain in force. On this basis, the death of a person is one of the permanent obstacles to the implementation of qisas. In other words, only credit matters cause qisas to fall, and death is one of the real things that make qisas execution impossible.
Islamic jurisprudence
javad sarkhosh; Hannane Nosrat kharazmi
Abstract
In Islamic jurisprudence, one of the conditions for the Qisas sentence is the equality of criminal and victim in religion. In Imami jurisprudence, there are two general views in this field; Most Imami jurists believe in the non-retaliation of Muslims for murder of Dhimma. Therefore, according to the ...
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In Islamic jurisprudence, one of the conditions for the Qisas sentence is the equality of criminal and victim in religion. In Imami jurisprudence, there are two general views in this field; Most Imami jurists believe in the non-retaliation of Muslims for murder of Dhimma. Therefore, according to the well-known opinion of the Imami jurists, a Muslim will not be sentenced to Qisas for murder of Dhimma, Unless he/she has a habit of doing this, in which case he/she will be sentenced to death. In contrast to this view, there is the theory of Sheikh Sadouq, who believes that the Qisas sentence for Muslims owing to murder of Dhimma is permissible. Proponents of each point of view have cited evidence such as the book (Qur'an), Sunnah (tradition ), and consensus to prove their theory, but the reason that has provoked the most discussion and disagreement in this field is the existence of conflicting narrations on this issue. In this article, while dealing with other evidences, the document and content of conflicting narrations have been examined and finally the second category of narrations which was also approved by Sheikh Sadouq has been accepted
ahmad mottazi; amir amiran bakhshayesh
Abstract
Dar rule is one of the most important items in Islamic criminal policy That it has Decriminalize and removing of Condemnation effect. Iranian Legislator at The1370 Islamic Penal Code fall Of punishment Subject However, paid independently at the Article 120 and 121 of the 1392 Islamic Penal Code in fall ...
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Dar rule is one of the most important items in Islamic criminal policy That it has Decriminalize and removing of Condemnation effect. Iranian Legislator at The1370 Islamic Penal Code fall Of punishment Subject However, paid independently at the Article 120 and 121 of the 1392 Islamic Penal Code in fall Of punishment Subject. Decriminalize indicate this fact That to reduce the harmful effects of punishment or decrease severely of punishment and or Otherwise be justified punishment The second mode is where after the crime be removed generally punishmen of the crime. in `removing of condemnation` what is considered, The removal of the accused and suspects from investigation process and acquitted the accused and fix conviction of his. Dar rule, in some cases, removed certain punishment while apply another penalty and in some cases, totally `removing of condemnation`. `. Legislative approach to such that extended also Dar rule to non- Hodud and this approach is in accordance with Dar absolute evidence rule because characterized according to the Qur'an and hadith evidence, The term "Had" In the documentary base, can not be only mean certain punishment and includes absolute punishment. Qisas crimes,
hasan moradi
Abstract
Standardization of multiplicity of injuries for how to get a retaliation or compensation has been a significant part of the jurisprudential doctrines about rules of Qisas. Contrary to the rule of multiplicity of crime which is one of the factors of aggravation of punishment, multiplicity of injuries ...
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Standardization of multiplicity of injuries for how to get a retaliation or compensation has been a significant part of the jurisprudential doctrines about rules of Qisas. Contrary to the rule of multiplicity of crime which is one of the factors of aggravation of punishment, multiplicity of injuries has various assumptions: Sometimes a injury may be committed by one person against another person or others or by a few people against a person. It may also result from a blow or multiple blows, at a time or at different times. The jurists of the Imamieh religion have expressed different opinions in this regard. Some of them believe in interfering absolutely, Some of them believe in not-interfering absolutely, and Some of them, have a different opinion depending on the unit or multiple and consecutive or alternate blows. In the Islamic Penal Code, with the following the famous opinion in Imamieh jurisprudence and by accepting the not-interfering opinion, except in exceptional cases, provided that the multiple intentional injuries result in a multiplicity of retaliation. In this article, by analyzing the related jurisprudential doctrines, the criteria set out in the above mentioned law have been criticized and proposals for amending the law are provided.
Abstract
At Murder, Holders of the right to qisas, Can request that a murderer be executed or By agreement with the killer, Qisas will convert to blood money. also, they Can pardon the murderer And forgive murdeder. In addition, In manslaughter,There is also the right to demand blood money And the right of forgive. ...
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At Murder, Holders of the right to qisas, Can request that a murderer be executed or By agreement with the killer, Qisas will convert to blood money. also, they Can pardon the murderer And forgive murdeder. In addition, In manslaughter,There is also the right to demand blood money And the right of forgive. Now the question is that If murdered is debt, Are these rights will be continued? In response to the question, Regarding the relationship between Qisas with public order And the supremacy of public interest over private interests, Right to qiṣāṣ is preferable. However, Blood money is in front of murdered's right to life, For this, is Placed in murdered asset. As a result, Blood money should be used to pay debt of murdered. Forgiveness of murderer without compensation, is Unlike normal behavior. For this,The fault is considered. As a result,They have no right of Forgiveness of the murderer Unless they obtain the consent of creditors
Hassan Moradi
Abstract
در کنار تأسیسات حقوقی همچون معافیتهای «قانونی» و «قضایی» ، نهاد «تبدیل مجازات» قرار دارد. تبدیل مجازات در مفهوم اعم اقدامی در راستای فردی کردن مجازات، ...
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در کنار تأسیسات حقوقی همچون معافیتهای «قانونی» و «قضایی» ، نهاد «تبدیل مجازات» قرار دارد. تبدیل مجازات در مفهوم اعم اقدامی در راستای فردی کردن مجازات، جلوگیری از تضییع حقوق مجنی علیه یا اولیای دم، جلوگیری از وهن دین، تحدید استفاده از زندان و نیز تحقق عدالت قضایی و تعذیبی عادلانه است. در حال حاضر تبدیل مجازات در حوزه مجازاتهای حدود، قصاص و تعزیرات جاری است. لیکن پرسش اساسی این است که آیا جهات تبدیل قصاص عیناً همان است که در تعزیرات یا حدود مقرر است یا هر یک از اینها تابع احکام و ضوابط خاص خود میباشند؟ تبدیل مجازات های تعزیری به دو نوع «قانونی» و «قضایی» تقسیم می شود. تبدیل قانونی به شدت تابع شرایط مقرر در قانون است و تبدیل قضایی اصولاً تابع شرایط تخفیف مجازات میباشد و تشخیص آن به قاضی محکمه محول شده است. اما تبدیل حد همچون تبدیل قانونی تابع شرایط مقرر در قانون و منوط به موافقت مقام رهبری یا رییس قوه قضاییه میباشد. در مجازات های قصاصی دو نوع تبدیل «اجباری» یا «قانونی» و «شخصی» یا «اختیاری» قابل اجراست. هنگامی که قصاص شرعاً جایز یا ممکن نباشد، اجباراً به دیۀ مقدّر تبدیل میگردد
hasan moradi
Abstract
Abstract In the case of forgiving the murdered by the victim of crime, the victim enjoys the right to forgive the murderer or ask for the retaliation, especially when s/he finds herself/himself on the verge of death. There is consensus among the Islamic jurists and lawyers on existence of such right ...
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Abstract In the case of forgiving the murdered by the victim of crime, the victim enjoys the right to forgive the murderer or ask for the retaliation, especially when s/he finds herself/himself on the verge of death. There is consensus among the Islamic jurists and lawyers on existence of such right for the victim. However, there are controversies and different approaches on the post-forgiveness consequences. Therefore, in this article, I focused on the initiative right of victim on the right of retaliation, and as a result his/her heirs, along with the analysis of Islamic jurists’ opinions and adopted approach by the Art.365 of Islamic Penal Code (2013) concerning the given issue.
