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.
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.
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
