General and exclusive criminal law
Hossein Mirmohammad Sadeghi; Nastaran Aghaee; Mohammad javad Darvishzadeh
Abstract
Under Article 136 of the Islamic Penal Code (approved in 2012), the legislator has outlined the sentence of repetition in Hadd crimes. In accordance with this article, the punishment for committing a Hadd offense for the fourth time is death. However, neither the text of the law nor the legal doctrine ...
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Under Article 136 of the Islamic Penal Code (approved in 2012), the legislator has outlined the sentence of repetition in Hadd crimes. In accordance with this article, the punishment for committing a Hadd offense for the fourth time is death. However, neither the text of the law nor the legal doctrine addresses the case in which there is a mistake in counting the number of times the Hadd is applied. As an example, in the event that the perpetrator is punished four times with the same Hadd punishment, the death sentence can be imposed on them the fifth time, in accordance with Article 136.The present study is intended to answer the following question: "What is the effect of making a mistake in counting the repetitions of the Hadd punishment?" There are many examples of making a mistake in counting the number of times the Hadd punishment has been enforced, and it is possible to approximate more or less the number of repetitions, even though a number of examples are provided in the jurisprudence in this case.It is possible to consider three hypotheses in relation to the impact of the mistake on the punishment for repeating the Hadd: 1) The absolute absence of the consequence of the mistake in counting how many times the Hadd is executed, and the allowance of executing the death sentence in subsequent rounds. 2) The relative impact of the mistake, in such a way that if the perpetrator is responsible for the mistake, the mistake is not effective in counting the number of times the sentence is executed, and if the perpetrator is not the person responsible for the mistake, the fulfillment of the mistake will result in the exemption from the death sentence. 3) The absolute effect of the mistake and the prohibition of executing the death sentence in future rounds.In the present research, firstly, various cases in which a mistake was found in counting the number of repetitions were examined, then the three hypotheses mentioned were assessed based on the examples mentioned, and finally, the hypothesis of the absolute effect of the mistake in the number of repetitions, which caused the punishment prescribed in Article 136 to be extinguished is favored.
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.
General and exclusive criminal law
Ali Kakoo juybari; Rajab Goldoust juybari; Mahdi Esmaeli
Abstract
VThe importance of murder is understandable not only in terms of the amount of punishment provided for it, but also due to the determination of criminal liability in this type of crime which has been controversial. Therefore, it is possible to pay attention and impose punishment on the perpetrator of ...
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VThe importance of murder is understandable not only in terms of the amount of punishment provided for it, but also due to the determination of criminal liability in this type of crime which has been controversial. Therefore, it is possible to pay attention and impose punishment on the perpetrator of a crime if he has certain conditions and characteristics; This means that for the realization of criminal responsibility, the mere occurrence of material behavior is not enough; Rather, criminal behavior must be caused by a conventional, free and self-aware emotional state, and the issue becomes more controversial when the killer's motive for committing murder is to obtain pleasure and spiritual, physical and sexual satisfaction; If this acquisition of mental, physical and sexual pleasure leads to murder, along with harassment and violence, we will face a deviant criminal type that has another mental disorder, abuse or sadism; Serial killers, who usually kill their victims by torture and offend, can be considered as examples of sadistic killers, and in Iran, these kinds of murders are referred to as Sadistic Murder, which were no separate title in criminal law and In Iran, it can be considered under the rule of retribution, or else, it will be dealt with by the rules of punishment and atonement. Furthermore, it is noteworthy that one shall not ignore the pre-sadistic or metasadistic conditions or the conditions that expose people to become a sadist. Moreover, we shall underline the effects of metasadism in many crimes, including murder, factors such as heredity, individual and social failures, domestic violence in Childhood, social environment and such factors may lead a person to become sadistic. The study of the criminal type of such perpetrators who have criminal capacity and dangerous state will be of great help in the field of causes and treatment of this phenomenon; This requires that Other killers are annoying (sadistic killers) be studied from various dimensions so that we can formulate a disciplined system of criminal responsibility for them. A sadistic killer is neither mentally healthy nor without liability. The mental illness of a sadistic killer is mainly under the category of neurosis (neuros), in such a way that the person has full connection with external realities and his perception and will is in a situation that makes him responsible for his actions in terms of psychiatry and criminal law. If his/her illness reaches the level of psychosis and the person is cut off from the real world, the defense of madness can be applied. However, there are significant differences of opinion in the definition of insanity, the separation of total mental disorder from relative mental disorder, and the reference for the diagnosis of insanity. Historical research shows that the treatment of mental criminals by human societies has not been the same since the beginning of time and the reactions have changed according to the progress of human knowledge, but today in most countries of the world, regarding people with mental disorders, differential policy - Support is adopted. These legal protections for these people have caused some people to pretend to be crazy in order to get rid of the burden of criminal responsibility, so it is very important to determine the exact criteria in this matter. Iran's criminal law has had a protective approach towards these people from the beginning until now. In the latest legal developments in Iran's criminal law, Article 149 of the Islamic Penal Code approved in 1392 tried to resolve the flaws in Article 51 of the Islamic Penal Code approved in 1370, but the approach of this law towards people with relative mental disorders such as sadistic mental disorders is not clear. Certainly, mental disorders have a wide spectrum, some of which make a person irresponsible and some make a person relatively responsible. According to the criminal law of the Islamic Republic of Iran, a sadistic murderer has never been able to use the defense of her madness or mental illness and has been sentenced to the maximum legal punishment. In the present contribution, we consider whether the sadistic killer who committed the murder had any disorder or not and whether madness be invoked if a sadistic murderer is mentally disturbed? Sadism in murder is also examined from a medical and criminal law perspective.
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.
General and exclusive criminal law
Mohammad rasool Ahangaran; Mehrdad Saeedi
Abstract
In cases where the blood money for the killer exceeds that of the victim, and the avengers of blood demand Qisas (retaliation), attaining the right of Qisas requires restitution of the difference in Diyeh to the person being avenged. The responsibility for paying the difference in Diyeh varies depending ...
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In cases where the blood money for the killer exceeds that of the victim, and the avengers of blood demand Qisas (retaliation), attaining the right of Qisas requires restitution of the difference in Diyeh to the person being avenged. The responsibility for paying the difference in Diyeh varies depending on the circumstances. It can be the responsibility of the owner of the right of retribution (the victim or the avengers of blood), the person or persons who are not avenged against, or the avenge (one administering retaliation) and their accomplice(s). However, if the issue of complicity in an intentional crime is not raised, the payment of Diyeh is solely the responsibility of the owner of the right of retribution. For example, when a man knowingly and intentionally kills a woman, the avengers of blood must pay him half of the killer's Diyeh.Despite the jurisprudential background and legislative history of Diyeh, the Iranian legislator has not stated its specific provisions in an independent chapter in the new Islamic criminal code approved in 2013, instead allocating various provisions to scattered sections. As a result, new issues in the judicial procedure face unresolved challenges due to the lack of a definitive text. One objective and factual issue that arises in a criminal case is when a third party (not the avenger of blood), without the permission of the avengers of blood, pays the difference in the killer's Diyeh during the execution of criminal sentences in the judicial fund. In such cases, questions arise regarding the approach to be adopted and the nature of this legal action. According to Article 427 of the Islamic Penal Code approved in 2013, the nature of the payment of Diyeh by the avengers of blood is to compensate for the damage caused, create balance and equality between the killer and the victim, and it is an imperative rule, not a condition for the emergence of the right to retribution (not a favorable rule). For this reason, as soon as the crime occurs, the avenger of blood has the right to retaliation, but the retaliation depends on the payment of the difference in Diyeh. If the right of retribution were based on the payment of the difference, and the guardian retaliated without paying, he would also be retaliated against. However, according to the rule of 427, he commits ta'zeer. Legislators have remained silent about the nature of payment of the difference by a third party in the Islamic criminal Code, leading to challenges and fundamental differences of opinion among lawyers and within the judicial procedure of criminal courts. One of these challenges is whether, by paying the difference in Diyeh through a third party, there is a possibility of retaliation for the avengers of blood. Additionally, once Diyeh is paid, does the third party become a stranger without rights to it? Do the rules of debt apply, or can a third party or the avengers of blood go directly to the criminal enforcement unit for reimbursement? Does the difference in Diyeh become the property of the killer or their heirs, allowing any interference, or is it solely for the fulfillment of the killer's retaliation, refundable by the third party before the retaliation? The answer to all these challenges depends on explaining the nature and examining the legal effects of this act, specifically the third-party payment of the difference in Diyeh. The importance of this matter goes beyond the presentation of a legal theory, and adhering to one of the proposed views on the nature of the third-party payment of the difference in Diyeh can ultimately determine whether the killer faces retaliation or is released from it until another time.The present research, which is novel in its kind, after explaining the basic concepts of the research, separates the nature of the Diyeh from the difference in the Diyeh and then examines the nature of the difference in the Diyeh paid by the third party from the perspective of jurists and judicial procedure and while criticizing the views of the opponents, tries to present a theory in accordance with the foundations of Islamic jurisprudence and law and their principles and rules.
General and exclusive criminal law
Abolfazl Mohamad alikhani; Hassan Alipour; Mohamadreza Elahimanesh
Abstract
A compound crime refers to a crime that involves two or more behaviors. The combination of these behaviors, which determine a distinct nature separate from simple or single-behavior crimes, sets apart compound crimes. The multi-behavior nature of a compound crime does not solely rely on the criminality ...
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A compound crime refers to a crime that involves two or more behaviors. The combination of these behaviors, which determine a distinct nature separate from simple or single-behavior crimes, sets apart compound crimes. The multi-behavior nature of a compound crime does not solely rely on the criminality of each behavior but on the presence of these behaviors in the specified order stated by law.Criminal law and judicial procedures generally adopt a straightforward approach when investigating criminal behavior. With a few exceptions, such as jurisdiction or law enforcement, they do not focus on the substantive differences in criminal behavior. The fundamental characteristic distinguishing compound crimes from other crimes is the longitudinal continuity of two or more behaviors. This means compound crimes are formed when the perpetrator or perpetrators engage in different behavior on two or more occasions. Consequently, the crime is separated from the resulting crime, which is the outcome of the behavior itself and not the behavior alone. However, despite the multi-behavior nature of compound crimes, it is essential to note that this crime is primarily equated with the resulting crime. In some instances, the second or last behavior in a compound crime may be considered the result of the crime, differentiating it from multiple, continuous, and habitual crimes.The multiplicity of behavior in a compound offense is the primary condition for committing the crime. However, this characteristic also brings it close to multiple crimes. In a compound offense, the individual behaviors do not necessarily constitute separate crimes. Instead, their presence together leads to the commission of a compound crime. On the other hand, in multiple crimes, each behavior is considered a distinct crime, and the multiplicity of the crimes occurs when the perpetrator commits multiple behaviors, with each behavior implying an independent crime. This is the main difference between these two categories. In a continuous crime, a single behavior results in the commission of the crime, even though that behavior must occur over time. Therefore, the singular behavior in a continuous crime sets it apart from compound crimes involving multiple behaviors. In the case of habitual crimes, similar criminal behaviors are repeated. Participation in a compound crime is based on collusion; thus, the collaboration and performance of one of the criminal acts by the partners lead to its occurrence. Legally, all partners do not need to engage in all criminal behaviors. If each partner commits one of the criminal behaviors, participation in the compound offense is established. In this scenario, the role of an accomplice also depends on their cooperation in all behaviors or at least in the first behavior by assisting. Therefore, if the accomplice assists and cooperates with the perpetrator in any of the behaviors of the compound crime, their participation is fulfilled. The accomplice is not legally required to cooperate in all the behaviors. Attempting to commit a compound crime is associated with completing the first behavior. The perpetrator performs the first behavior entirely but is prohibited from engaging in the second or subsequent behaviors due to an involuntary factor. It should be noted that the failure to perform the first act should not be considered an attempt.This research employs library sources and analyzes judicial opinions using a descriptive and analytical approach. It has concluded that despite compound crimes' distinct nature and characteristics, which differ significantly from simple and single-behavior crimes, they lack a clear legal position and procedure. The suggestion put forth by this article is that categories related to the behavior of crimes, mainly compound crimes, should be regulated through judicial procedures rather than relying solely on legal articles due to the standard challenges involved.
