جنون

Hajar is one of the important topics and the subject of discussion. The purpose of the present research is a comparative study of the foundations and tools of Iranian and British law.

The present research is based on a descriptive-analytical method with a comparative approach and based on qualitative content analysis, which was done by referring to library sources and analyzing the legal texts of Iran and England.

Ethical Considerations:

 In this article, the originality of the texts, honesty and trustworthiness are observed.

In law, sab-e-hajar is limited to minors, insanity, and insanity, while there are other conditions such as Alzheimer's, addiction, and Down's syndrome, which have no history, and it seems necessary to determine their legal status. From the legal point of view, a person who suffers from Alzheimer's disease is at risk of being abused by third parties due to the lack of mental concentration on affairs and also acute and frequent forgetfulness regarding various issues, including the parties to the transaction and his property, and the philosophy and wisdom of Hajar There is genuine support for them. Regarding addiction, the title of spendthrift applies to an addicted person, and stupidity includes spendthrift, so the person is forbidden and prohibited from financial possessions.

Protecting the deprived persons and the rights of third parties is one of the fundamental principles of the Hajar of the Persons, and contrary to the popular opinion, the Hajar of the Persons is not exclusive and is allegorical.

Criminal responsibility refers to an individual's obligation to be accountable for criminal acts, requiring the person to be sane, mature, and acting voluntarily at the time of committing the crime. Claims of mental disorders can lead to reduced sentences or acquittal of the accused. Insanity is recognized as a barrier to criminal responsibility, but many other mental disorders do not fall into this category. This research examines the conditions for establishing insanity in the legal systems of Iran and the United States, demonstrating that in both systems, insanity means a complete lack of will or power of discernment. Additionally, according to Article 149 of the Islamic Penal Code of Iran and U.S. laws, severe mental retardation can also negate criminal responsibility. To fairly implement laws concerning individuals with mental disorders, suggestions such as comprehensive psychiatric evaluation and determining degrees of responsibility have been proposed. Understanding the U.S. legal system and its experiences can help improve the situation for these individuals in Iran, but implementing these policies requires attention to existing challenges and limitations.

According to the prevailing opinion of jurists, if a person commits a crime punishable by qiṣāṣ, while mentally sound, but becomes insane before the execution of qiṣāṣ, the punishment is not abated under any circumstances and will still be carried out even in the state of insanity. Based on the legislator's statement in Note 1 of Article 150 of the Islamic Penal Code, prosecution and adjudication of crimes punishable by qiṣāṣ are not nullified due to the onset of insanity. However, the legislator remains silent regarding the execution of qisas in the case of insanity. Using a descriptive and analytical approach, and after a detailed examination of the arguments of both proponents and opponents of this rule, along with addressing potential objections, the author—while accepting the authenticity of the narration of Burayd ibn Mu‘āwiyah and its implication for the prevailing view—argues that, considering the principle of precaution in matters of life (iḥtiyāt fi'l-dimā’) , the principle of dar‘ (averting punishment in cases of doubt) , and the requirements of fair and just legal proceedings as recognized by rational individuals, it is not possible to fully adhere to the content of Burayd ibn Mu‘āwiyah's narration or to unconditionally accept the prevailing opinion. Instead, partial acceptance should be followed in certain cases, based on the principle of ḥukūmat (overriding rule).

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.

"Dar~ is one of the rules of interpretation in Islamic jurisprudence, which causes the punishment to be revoked from a person to whom the attribution of a criminal act or the realization of his criminal responsibility is doubtful. This rule, with or without the name of the rule, has been the focus of jurists in the chapters of criminal jurisprudence, and various topics have been discussed under it. In the meantime, the suspicion of mental disorder in the case of the perpetrator of a criminal act has been less considered; In the sense that the perpetrator claims that the criminal act was committed in a state of mental disorder (insanity) and it is possible that sometimes without such a claim being made by the perpetrator, the judge himself may have suspicion about the presence of the perpetrator's mental disorder. This article, in a descriptive and analytical way, has examined two possibilities in the position of research on the inclusion or exclusion of the Dar~ rule regarding this kind of suspicion, and considered the flow of the Dar~ rule to be preferable in the case of the suspicion of insanity. The proofs of this statement are: the general word " suspicions ", the necessity of verifying the lack of suspicion during punishment, the principle of the necessity of mitigating the punishment, and the independent rational verdict.

Adultery with the dead or necrophilia is an abnormal sexual disorder in which sexual pleasure arises from liaison with the corpses. According to psychologists, this type of sexual intercourse is a severe mental disorder, and such patients not only need psychotherapy, but also their criminal responsibility is questionable. Article 149 of the Islamic Penal Code also implies such an inference, but contrary to expectations, the legislature has considered sexual intercourse with a corpse to be adultery and the related punishments are considered for the perpetrator. (Whipping for an unmarried adulterer and execution for married adultery) Regardless of the eligibility of a person with necrophilia to be held criminally liable, criminalizing or placing such behavior under the control of criminal law does not follow the principles and criteria governing this matter. Thus, the criminological challenges of this behavior appear in the face of its jurisprudential documents. In this article, we intend to analyze these shortcomings

One issue that can challenge the criminal justice system is the claim of mental disorder at the time of committing a crime. Acceptance of this defense reduces the punishment or leads to the acquittal of the accused. Mental disorders encompass a wide range of brain disorders, with the most severe being insanity, which is recognized as a factor that removes criminal responsibility in various legal systems, including those of Iran and the United States of America. Therefore, if a person commits a criminal act but lacks the necessary capacity to discern the rightness or wrongness of their actions, the attribution of responsibility to the perpetrator is lost, and they will not be held accountable. Article 149 of the Islamic Penal Code of 1392 states, "If the perpetrator is mentally disturbed at the time of committing the crime in such a way that they lack volition or discernment, they are considered insane." In American law, the concept of insanity is rooted in common law, and regulations governing insanity differ across different states in the country. American legal professionals believe that mentally ill individuals who commit crimes should undergo psychiatric treatment before facing punishment. At the same time, the legal rights of these mentally ill criminals must be respected, but concerns about public safety and preventing the frequent dangers posed by these individuals must also be taken into account. The goal is to strike a balance between the patient's right to treatment and the responsibility to ensure public safety.This study aims to explain the concept of insanity, the conditions required for its verification, and its effects on the criminal justice systems of America, Iran, and Imami jurisprudence. It seeks to answer the following questions: What are the conditions to prove insanity in the legal systems of Iran and America? What is the stance on diminished responsibility in the criminal justice systems of Iran and America? Are milder mental disorders than insanity also recognized as an obstacle to criminal liability? This study employs a descriptive-analytical method and relies on a library collection tool.Discussion and The principle of acquitting individuals with insanity from criminal liability is generally accepted in Imami jurisprudence and the criminal laws of Iran and America. Jurists consider it necessary for a person to possess the legal capacity to be held responsible, and the general conditions of religious obligation form the basis of criminal responsibility and the legitimacy of imposing any type of punishment that society implements on a criminal for committing a crime. Insanity has an impact on criminal liability in the laws of Iran and America. Article 149 of the Islamic Penal Code, approved in 2012 and based on the McNaghten criteria and the Model Penal Code, establishes that mental disorders leading to a decline in volition or discernment remove criminal responsibility. Criminal responsibility or non-responsibility is absolute in the Islamic Penal Code. Consequently, many individuals with mental disorders are deemed fully criminally responsible. The need to consider diminished responsibility in the context of insanity rules is evident and requires attention and revision to ensure fairness. Recognizing this necessitates focusing on two aspects related to the issue of insanity: the legal aspect and the psychiatric aspect. Psychiatry has shown that there are intermediate states between sanity and insanity that do not lead to a deterioration of criminal responsibility like insanity, yet the accused does not possess complete mental and psychological health to be considered responsible for their actions.Diminished responsibility comes into play when an act has been committed, and the law prescribes punishment for the act, but due to specific circumstances, the primary punishment cannot be applied, and a lighter punishment is imposed instead. In the United States, the "guilty but mentally ill" act has recognized diminished responsibility since 1957. In cases where the perpetrator exhibits impaired discernment or volition but does not lack them entirely, they are considered guilty but mentally ill, and a reduced sentence and rehabilitation are taken into account. The purpose of this law is to both remove dangerous individuals from society and provide treatment for mentally ill individuals. This means that mentally ill patients who have not reached the point of insanity are not sentenced to the original punishment for the crime committed but rather receive a lesser degree of punishment. In American law, according to the McNaughten rule and the Model Penal Code, if mental retardation leads to a decline in discernment, the person is not held criminally responsible. The Eighth Amendment of the United States Constitution considers the death penalty for mentally retarded individuals as an unjust punishment, but lighter punishments are applied to such individuals. In Iranian law, Article 38 of the Islamic Penal Code includes illness as a mitigating circumstance. However, when the defendant's illness is not deemed effective in committing the crime, the judge has the power to reduce the punishment based on the clarity and combination of the two aforementioned articles.

The meaning of mental disorder in the Islamic Penal Code is the existence of some severe mental disorders in such a way that at the time of committing the crime, the criminal did not have full will to perform his/her actions and was not aware of the consequences. The main goal of this article is to investigate the role of mental disorders in determining the criminal responsibility of criminals. The research method is descriptive and analytical. The question of this article is that if a person is involuntary while committing a criminal act due to some kind of mental illness and does not have a correct knowledge and understanding of the criminality of her behavior, is he/she considered a criminal? In response to this question, it can be said that according to the Islamic Penal Code approved in 2012, mental illnesses - which are diseases that affect mental and mental health and deprive a person of their will - put a person in a state of insanity and exempt him/her from criminal responsibility. Research findings indicate that not all mental illnesses completely deprive the will. Determining to what extent a mentally ill person is criminally responsible is very important. In addition, the findings of the research showed that the victim suffering from mental disorders could sometimes reduce or increase the punishment of the offender.

The guarantor is obliged to recall the debtor to the creditor under the surety contract and in case of default of the obligation, according to the law, it must pay the debtor debt or the amount of bail as compensation for noncompliance obligation. The basic problem that this research has addressed with a descriptive and analytical method is what kind of obligation the guarantor's obligation is, and which persons has the capacity to enter into a guaranty contract.By examining the opinions of jurists and lawyers, it was determined that the guarantor's obligation to recall the obligee is a non-financial obligation, but because this obligation also has financial effects, the guarantor must be adult, wise and mature, and because the surety contract is harmful, the minor and the non-mature cannot enter into this contract either in person or through a guardian or mandatory. Another issue that is raised here is whether, in case where after concluding the guaranty, a guarantor who has the capacity faces insanity, foolishness, coma or bankruptcy, the guaranty contract will be still valid, or the contract of surety will be destroyed due to the occurrence of these cases. By looking into the books of jurists and legal authors, it is clearthat although surety is a binding contract, because the guarantor's commitment depends on him, the surety contract will be dissolved if the guarantor suffers from permanent insanity after the contract and before the recall. Therefore, the fulfillment of the obligation cannot be requested from the heir or the agent of the guarantor, and the debt or the amount of bail cannot be received from the property of the guarantor. The court must instead ask the debtor to introduce a new guarantor. In the assumption of periodical insanity, although the contract of surety remains, it is not possible for the guarantor to perform the obligation during the period of insanity, as this causes loss to the creditor. Therefore, the court should ask debtor to introduce a new guarantor. In case of the guarantor's foolishness, because legally and commonly, the fool has the ability to fulfill the obligation and present the guarantor, in case of breach of the covenant, he is obliged to pay the safe pledge. In describing the conditions of the guarantor, the Imami jurists, in addition to maturity, wisdom and growth, consider the absence of bankruptcy as a condition and state that if the guarantor is not able to summon the debtor, he must take care of the religion, and because a bankrupt person is prohibited from seizing his property, it is not possible to enter into suretyship unless the creditors give him permission to do so. In Article 221 of the Criminal Procedure Law, the condition of the guarantor's solvency is stated and, therefore, if a person is bankrupt, his guarantee should not be accepted, However, if the judge accepts the guaranty of the bankrupt regardless of the insolvency, the guaranty contract is valid. Because according to Article 418 of the Commercial Law, the bankrupt is prohibited from taking possession of his financial affairs after the issuance of the bankruptcy award. And since the surety contract is a non-financial contract, the bankrupt has the ability and competence to conclude it. However, if the guarantor does not present the debtor on the due date, the court did not have the right to collect the amount of the surety from the property of the guarantor without the permission of the creditors. And in the case of receiving the amount of bail, according to paragraph 2 of Article 423 of the Commercial Law, such receipt is invalid and the amount of bail must be returned to the receiver. Therefore, it is not possible to pay the debt due to surety until the end of bankruptcy. In case of bankruptcy of the guarantor after concluding the surety, the surety contract is still valid and if the guarantor refuses to summon the debtor, the creditor must enter the creditors of the bankrupt guarantor to collect the amount of bail. In the assumption that the guarantor falls into a coma after concluding the contract due to the lack of will and intention during the coma, it is not possible to ask him to summon debtor. Therefore, according to Article 234 of the Criminal Procedure Law, the court can reject the surety contract and ask the debtor to introduce a new guarantor. However, in case of brain death, the guarantor is assumed to be dead, the surety contract is terminated and the debtor must introduce a new guarantor according to the law.

One of the legal institutions that has always been the subject of much debate in both private and criminal law is “Non-capacity”. Many of these issues, which are rooted in the thoughts of Shia Clergies, have caused controversy among jurists today. Considering that the existing approaches at the time of drafting laws and decision-making in the judiciary regarding the status of protection detainees as vulnerable groups in society are effective, it is important to examine the causes, criteria and principles of the Non-capacity. Therefore, the present article, which comparatively examines the causes, criteria and principles of non-capacity in private and criminal law, seeks to answer the question, what is the difference between the causes, criteria and principles of non-capacity in private and criminal law? The findings of this study indicate that in Iran law, although the legislator has a similar view on the criteria of stone in private law and criminal law, but the causes and principles of non-capacity in private law have a wider scope than criminal law. This shows that the Iranian legislature has a narrow and limited view of this institution in the field of criminal law.

"Anencephaly" is a fatal and incurable defect that due to the destruction of nerve tissue prevents the formation of the skull and brain in the fetus or infants. This can be recognized during the fetal period and at birth. Explaining the jurisprudential and legal status of anencephaly is one of the topics of criminal law challenge that the author of this article has tried to address. A fetus with such complications is considered a malformed fetus, and under certain conditions, medical abortion is permissible. Anencephalic infants are also very short-lived due to retardation and severe structural disorders of nerve tissue, but this does not mean that they are brain dead or uninhabited. However, the situation of these people is compatible with the state of insanity.

The consequence of the loss of the offer in contract law is that it offer falls. This is an involuntary and involuntary matter that the impossibility of joining the acceptance of the offer of its effects is the inevitable consequence of the loss of the offer (eg, referring to the offer) or The will of the respondent is the requirement (eg, rejection of offer or reciprocity). Death and bankruptcy. Consideration of the International Convention on the International Sale of Goods regarding any of the examples and its implementation with Iranian law has been discussed to determine that the Iranian law on the causes of the loss of the offer in How close to the Convention is, and in which cases should the procedure be in place? And is there a problem with the Iranian government's accession to the convention? The result of this research is that the reasons for the loss of the offer in the legal system of Iran are explicitly foreseen, and these are also considered in the Convention, and by reviewing the contents of the Convention, four cases can be found which, like Iran's law, causes deterioration It is required to deny the offer, the expiration of the period specified for acceptance, the rejection of the offer by the respondent and the counter offer. And the Iranian law's stance is near the convention. Therefore, the Iranian government is unconditionally annexed to the convention and in cases of dispute the Iranian government can use the right.

Madness, insanity and stupidity before committing a crime will be reduced from the perspective of Iranian law according to the "personality and background of the offender". If we punish the insane, we will never achieve the objective goal of punishment or correction of the offender, which is why punishment and punishment are not useful. The main research question of the article is what is the effect of insanity, insanity and stupidity on the criminal liability of the offender from the perspective of Iranian law? . Madness, insanity and cowardice at the time of committing a crime are the complete abolition of the criminal responsibility of the offender and the criminal responsibility of the offender has no effect on the criminal responsibility of the offender; But the court has the power to reduce the punishment of the insane, the innocent and the idiot. The research method in this article is descriptive-analytical with a comparative approach and using the library and by taking notes.

According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last will of the legislator on insanity. In total there are three criteria for insanity: Cognitive and Volition Criterion, customary criterion and companion and Contradiction Criterion. In the cognitive criteria, the main emphasis is on the the nature of the action. Volition criterion relying on individual control over their behavior. In the customary standard, since insanity is a customary concept, it is referred to the custom to diagnosis it. The psychiatric criterion can be analyzed in the context of a specific custom. In the companion criterion, the main emphasis is in relationship with insane person. At paradoxical level, attention is paid to behaviors that are not matched with mental health. The most appropriate solution for detecting insanity is attention to perception and failure of perception based on symptoms such as delusions and hallucinations.

Wisdom (Aql) is one of god’s blessings to man. In order to maintain the health of Wisdom, the holy legislator, supports against several minor and partial injuries to wisdom (Aql) and covers the damage by complete or partial Dia (blood money). Consequently, chapter five of the second part of the Islamic Penal Code is dedicated to the problems of wisdom (Aql). It seems that there are serious weaknesses in Iranian legislative criminal system in this regard which did not mentioned in the juridical books. One of the most important examples is the concept of "Atah”. Although the word “Atah” is common in a period between insane and Madness, but it does not mean insanity. Likewise, in explaining the position of this concept among mental disorders, due to the lack of interruptions in relation with the realities of the world around him as well as loss of function, it is placed in category of nervouses. In the case of retaliation in crimes which causes decline or lack of reason (Aql), the evidence of the group which agrees with the execution of punishment (Qisas) is Sound.

Insanity during the occurrence of crimes annuls the issuance of Qisas decree. No one of jurisprudents has any doubt about it, but what is the position of divergence among the jurisprudents of Islamic denominations is insanity after committing the crimes which can occur before the issuance of the decree, or after it and during the execution of Qisas. In both steps, there are generally two theories among jurisprudents of Islamic denominations: 1. The theory of lack of annulment by Imami, Shafi‘i, and Hanbali jurisprudents. 2. The theory of ceasing the process of trial and cancelling the execution of Qisas which is believed by Maliki and Hanbali jurisprudents. Maliki jurisprudents believe that in case that there is no hope for improvement of the person, Qisas will be annulled but Diyah should be spent from his or her properties. Hanafi jurisprudents believe that if the insanity happens after the issuance of the decree and before his or her surrender for the execution of Qisas, the issuance of Qisas decree will be annulled and it will be changed to spending Diyah, However, if the insanity happens after the issuance of Qisas decree, Qisas will be executed. In this article, the reasons for each of the ideas will be analyzed and the theory of ceasing the procedure of trial and punishment and also the annulment of Qisas in case that there is no hope for improvement of the person, is considered defendable.

The removal of penal accountability for insane, while insanity covers a wide range of meaning, is a definitive principle both in jurisprudence and Islamic positive law. Elaboration on the jurisprudential and legal concept of insanity is of utmost significance due to various usages of insanity and its vague relation to similar terms like: lunatic, idiot, foolish, silly, etc. which is the aim of the present text .The outcome of contrast between Shi’a and Sunni jurisprudence with descriptive, comparative and interpretive approach would result in graded meaning of insanity which has two key features: disorder and defect of reason. Penal code also takes up jurisprudential definition and interpretation of insanity that is the very lack of perception and discernment faculty in the scope of committed crime and thus provides the executor of Islamic law with definite criteria for judging about mental disorders. Therefore, mental disorders with different levels which falls under jurisprudential subject of insanity will be exonerated from both penal accountability and receiving punishment.