جستجوی مقالات مرتبط با کلیدواژه « مهدورالدم » در نشریات گروه « فقه و حقوق »

Mahdur-Al-Dam is one of the important legal jurisprudence topics that has always been the subject of discussion and criticism. Determining the example of Mahdur-Al-Dam is one of the challenging issues that needs to be discussed. In Article 320 of the Islamic Penal Code of 2012, the legislator addressed Mahdvaldam. The purpose of this article is to examine Mahdur-Al-Dam, the subject of Article 302 of the Islamic Penal Code 2013 from a jurisprudential point of view. This article has analyzed the mentioned topic using a descriptive, analytical and library method. The findings indicate that, from the jurisprudential point of view, the punishment of Mehdur al-Dam is the only duty of the imam and the deputy imam and at the present time, the guardian of jurisprudence has delegated this authority to the courts of justice and is within the scope of their duties. No one is authorized and empowered to enforce the limits and punishments and to commit suicide of people with the belief such as retribution and Ta'zir. On the other hand, one of the most important challenges of acquitting Mahdur-Al-Dam’s murderer and his non-retribution is that it is difficult to prove that the victim was Mahdur-Al-Dam. By proving the apostasy of the victim, he will be punished because killing the apostate is one of the duties of the government, but if he cannot prove the apostasy of the victim or prove his mistake in this regard, he will be punished.

Religion is a collection of practical and moral beliefs and orders that are set for the guidance and advancement of humans. Due to the fact that adherence to religious teachings leads to the prevention of sin, experts believe that religion has a preventive function in social fields and in forms such as crime and deviance. Although the relationship between religion and crime is one of the most challenging issues in criminology, criminological findings have often emphasized the preventive role of religion. However, religious-historical cuts show that in some cases, eclectic interpretations of religion lead to crime. Thus, this research aims to describe, interpret and explain the thoughts of criminals with religious eclecticism by using Fairclough's discourse analysis method. The findings of this research show that eclectic criminals, emphasizing divine duty, ideological traditionalism, holy jihad, and ideological pressure, on the one hand, seek to create Sharia discourse, and on the other hand, reproduce Sharia-based domination relations. However, as a final assessment, it should be said that eclectic criminals commit crimes by misunderstanding religion and misunderstanding religious teachings. Therefore, in these cases, the crime-causing religious ideology is the result of religious epistemological eclecticism, and this cannot negate the positive function of religion in crime prevention.

According to Article 302 of the Islamic Penal Code of Iran (April 21, 2013), if someone commits an offence against Mahduraldam and a person who deserve to die, she/he is excluded from talion (Qisas) and wergild (Diya). Article 303 also stipulates that if the perpetrator commits a crime believing that the victim is Mahduraldam and can prove this belief, talion will not applicable and he/she will be convicted to wergild and Ta’aziri punishment. This research has investigated the conflicting cases of legislator prescribing crimes against a person who deserve to die (Mahduraldam) by normal people. The corollary is that the provisions of articles 302 and 303 of the Islamic Penal Code are in conflict with some of the principles and rules of Islamic jurisprudence such as the principle of the presumption of innocence, the principle of caution in issuing death penalty and peoples honor (precautionary principle in blood and peoples honor), The principle of legality of offences and punishment (the principle of execution of punishment by Imam (or Judge) and authorized persons on his behalf), the jurisprudential principle of respecting Muslim blood in general sense and the principle of human dignity.To resolve not only the existing conflicts but also preventing private justice and maintain the order and security of citizens, the authors seek to propose to the activists of legislative criminal policy of Iran that the aforementioned articles should be deleted from Islamic Penal Code or amended in such a way that no one can easily resort to get rid of punishment. This paper has been performed based on the descriptive-analytical research method with a critical approach.

The right to life or, in jurisprudential terms, the blood of a Muslim is supported by Islamic jurisprudence and assaulting it, except in specific cases, causes criminal and civil liability. But according to a wrong interpretation of jurisprudence rules, in the regulation, it is seen that against jurisprudence, officers can use military equipment according to the legal duty, except for jurisprudential license and if there is any damage, no responsibility is assumed for the officials or the relevant organization. Such an interpretation is also seen in the judicial procedure; in such a way that if a person is harmed while committing a crime, waived the right to complain and the courts also citing some legal articles or by wrongly inferring from jurisprudential rules, do not consider victim to be entitled to compensation or revenge. Future research with analytical-interpretive method, has examined this legal conflict with jurisprudential rules. By examining jurisprudential and legal documents it was finally clarified, some legal articles in the law on the use of weapons 1373 and the Islamic Penal Code of 1392 is against the jurisprudential standards which in practice has caused the violation of the rights of the victims to get their rights. In this regard, uggestions have been made, including the amendment of Article 3 and Article 6 of the Law on the Use of Weapons, which prescribes the use of weapons in the Ta'ziri crimes, and on this basis, it is suggested in cases where the guilty victim does not deserve to die, compensation should be done by the officer (in the case of fault) or Baitul-Mal(Treasury).

All countries employ police officers to deal with crime and insecurity and grant them the necessary tools and powers according to the law. Since, the police tools may be used to violate the rights of citizens, the adoption of regulation in accordance with international standards and jurisprudential standards (in religious countries) will reduce the wrong use of police tools and endangering the personal and social security of citizens. Therefore, these regulation should clearly and unambiguously predict the correct way of using police tools and equipment and in case of mistake or intentionality of the police officer, he should be dealt with according to the regulation. In Iran, like in other countries, the use of tools and weapons by police officers is expected to deal with accused and criminals. The challenging point of this research is the cases where the police officer causes injuries to the citizens while performing his duty, but the victim does not complain with the idea that he was at the time of committing the crime and is guilty or despite the complaint, the courts also citing some legal articles or by wrongly inferring from jurisprudential rules, do not consider victim to be entitled to compensation or revenge. This is while Islamic teachings have clearly explained the examples of wasting Muslim blood and similar rules, that if it is properly considered in the approved regulation and judicial opinions, the issuance of fair judgments will not be far from reach.
Based on this, in the upcoming research, this issue will be investigated that although a person is committing a crime and violating the prevailing regulation, But other than some specific crimes, his blood is protected by the legislator and should not be subjected to some attacks. On the other hand, police officers have the duty of dealing with disorder and crimes and in some cases, they are obliged to use their police equipment, especially weapons and they may cause injuries to people who are committing crimes as a result of using it that the damage is not proportional to the crime committed, while the officer has done his duty. Of course, in some cases, they may have performed their duties incorrectly. The important question here is that if a citizen is committing a crime, and a police officer shoots at him, is the citizen entitled to a complaint and compensation? Another question in this regard is if the police officers fulfill their legal duty and the victim is not legally entitled to death or physical injury, What is the solution to compensate the victim? Hence, according to these questions, according to the order of being a victim and the ability to compensate for the damage (1), the victim's actions against him/herself (2), the victim's disregard for the warning (3), the confrontation of the victim's negligence or fault and the officers' blame (4) and not wasting the victim's blood and the responsibility of Baitul-Mal (Treasury) (5) is investigated.

This article with a descriptive-analytical method, examines the compensation of the guilty victim in the assumption of duty by the officers.

According to the legal duty, police officers can use police tools and equipment if necessary. Therefore, if the defendants resist or escape, it may result in physical injuries and death. What is inferred from the relevant regulation, especially the law on the use of weapons, is that police officers are not responsible if they cause injuries by following the mentioned laws and the guilty victim also has no right to claim retribution or compensation. Such an argument can also be seen in the judicial procedure and many decisions have been issued by the courts that the guilty victim is not considered entitled to file a complaint by citing some jurisprudential rules such as Mehdur al-Dam, action against himself or a warning. But in this research, It was investigated and found that the jurisprudential term of Mehdur al-Dam has a specific definition in jurisprudence and the Islamic Penal Code of 1392 and its development is against Islamic jurisprudence. In other words, committing the Ta'ziri crimes as well as some Haddi crimes and crimes against physical integrity is not a reason to consider a person's blood as a waste. Another point is that such cases are not covered by the rules of action against oneself and warning and as a result, in some cases, the officers can be held responsible. Because in the rule of action against oneself, the fault or intention of the victim must have broken the causal relationship between the actions of the officers and the crime so that it can be considered ongoing. The rule of warning cannot allow shooting against the victim, even if she heard the warning, because this rule refers to unintentional crimes. In addition, with a warning, regardless of the type of crime and other conditions, the victim cannot be denied the right to file a complaint. Therefore, according to other jurisprudence rules, if the crime against the victim is intentional, the right to demand retribution is established, and if it is unintentional, the right to demand compensation is fixed.

Considering that the guilty victims, in cases that are not Mahdur-Al-dam, and especially that they are committing petty and Ta'ziri crimes; in the first stage, even if the citizens are accused, in order to protect their lives, The use of force by police officers should be limited and in exceptional cases. In the next stage, if the duty of the police officers leads to bodily harm to the guilty victims, Compensation for his damage is more consistent with the teachings of Islamic jurisprudence. In this regard, according to the legal deficiencies, it seems necessary to amend the articles of the law on the use of weapons approved in 1373 such as articles 3 and 6 that prescribe the use of weapons. These legal articles have prescribed the use of weapons in crimes such as arresting a thief, escaping the accused and a prisoner (who has committed a crime other than Article 302 of the Islamic Penal Code approved in 1392), entering and leaving the border, and fleeing cars. So that, In this way, the rights of citizens, even if they are accused, are respected. Another point is that the note to Article 473 of the Islamic Penal Code approved in 1392 should also be narrowly interpreted and considered it to include only military prohibited places in which case, things like the street, road, border, or moving cars will be out of its scope. Of course, until the relevant regulation are reviewed, in cases where police officers perform their legal duties, while warning not to use weapons even if possible, It is possible to assume the responsibility of paying compensation to Baitul-Mal due to the clarity of the Islamic Sharia and the opinions of jurists. In addition, the injured person was not legally entitled to the crime. In other words, with the narrow interpretation of the note of Article 473 as described above, according to the aforementioned article, in the event of the death or injury of the guilty victim, compensation will be the responsibility of Baitul-Mal. It is worth mentioning, in the case of intentional crimes, the situation is clear and the police officer will be responsible according to the law. In non-intentional crimes as well, if the fault of the officers is evident, the guilty person must compensate.

The deserving death is a jurisprudential debate in which the evolution of discussion about it is different in Islamic sects. Sunni jurisprudents believe that the deserving death toward Imam are only the warlike, the rebel and the belligerent, and in their view, in the killing of the warlike and the rebel by the non-Imams, the retaliation are not pronounced and only in fixed legal punishment, they are obliged to execute it by the Imam; Otherwise, retaliation and blood-price are pronounced. In addition to the cases of the Sunni jurisprudents referred before, the shia jurists have developed the domain of the deserving death to reprehensible act, insulting the Prophet, and the Imams, the pretender of the Prophecy and the reprehensible act of tributary, and most of the shia jurists in all cases, except insulting the Prophet, and the Imams believe that it is not permissible to kill the aforementioned individuals without the permission of the Imam and condemn the perpetrator to be guilty and must be received discretionary punishment.

This paper arrived at the result of studying the legislative developments in the legal system of the country and its jurisprudential principles through the library's method. Which despite the precise determination of Blood is bleeding 's case and the imposition of a punitive punishment for someone who has committed a murder without legal authority, The Islamic Penal Code is also far from the humanitarian system with the ideal system of full and comprehensive support, And the existing legal status in addition to the social security of people in the country endangers, Conflicting the legality of the proceedings with the need to investigate criminal acts by the judiciary It is necessary to remove the title of Blood is bleeding and his murder license from Article 302, to pursue the treatment of the subject under this title in the courtroom through fair trial and the issuance of a legal decree against or against him.

The verse 33 of the Surah Al-Isra` is both historically and jurisprudentially well-known. It is historically well-known because Mu'āwiyyah resorting to this verse and under the pretext of being the avenger of the blood of assassinated caliph, Uthmān, refused to give oath of allegiance to Imam Ali (AS). It is jurisprudentially well-known because various jurisprudential rules such as “the principle of unlawfulness of killing any human being regardless of his/her religion or other features”, “lawfulness of retaliation (Qisas)”, and “retaliation standard” can be deduced from it. However, one of the most important phrases of this verse is undoubtedly “And if anyone is slain wrongfully” that its generalization to other cases “the one”, for example, “who has committed a crime for which a fixed punishment has been prescribed by God (Ḥadd) and deserves death that has been killed by a person other than Imam or ruler”, “a murderer who has been killed by a person other than the avenger of the blood or who has permission on his/her behalf” , “one who has been killed and his/her murdered claims that he killed her to legally defend himself/herself, without being able to prove it …” needs reflection. This article discusses the cause of revelation of this verse and the principle of unlawfulness of murder. Meanwhile, it explains the phrase “And if anyone is slain wrongfully” and investigates whether it is applicable to dubious cases or not.

Adoption of proper Islamic law basis towards the concept of one who deserves to be killed and determining criminal sanctions in the case of crimes against one who allegedly deserves to be killed is significant both for the purpose of observing important principles of lawmaking and providing public order and security. Recent approach of criminal policy of Iran in the context is hopeful, particularly after passing of new Islamic Penal Code in 2013. Enumerating examples and stipulating criminal sanction for murdering of one who allegedly deserves to be killed are among the most important steps taken by enacting new Islamic Penal Code. The measures can pave the way for providing more protection of the principle of enforcement of penalties by the judiciary and providing and maintaining public order and security. Having examined the developments in criminal policy of Iran, the paper seeks to demonstrate that there is a long way ahead to realize a perfect criminal policy. Thus, in addition to examining flaws of Islamic Penal Code in the context, the paper provides solutions to the problem. The solutions focus on the necessity of acceptance by the legislator of changes in the base of Islamic law for the concept in on hand and safeguard of the principle of enforcement of penalties by the judiciary at the other hand.

In Islamic criminal law, substantiation of Ehsan, undeniably affects the punishment of sexual offenses. Ehsan is defined as a situation when an adult man or woman-being permanently married- having the experience of vaginal sexual intercourse with his or her spouse in state of maturity and sanity, in which both men and women have the possibility to have sexual intercourses again and repeatedly whenever they want. For instance in terms of rape, which the death penalty is required , Ehsan will not have any effects , in other words, for imposing punishment it is not important that the rapist to be married or single, however, in some circumstances it would amount to both Rajm (stoning) and Jald ( i.e. lashing one hundred times) or it would intensify the punishment (i.e from Jald to Rajm) .Nevertheless according to the Islamic criminal law of Iran, 2013 penal Code, with the permission of judiciary head, the court has been given the authority to mitigate mentioned punishment to the Execution ( a type of death penalty other than Rajm) or Jald when imposing of Rajm is not possible. Although such flexibility is admirable, the code is criticized at this context by the experts. The 2013 code in terms of sodomy recognize Ehsan as a requirement for intensifying the punishment of Jald (Lashing) to the death penalty, but the code does not apply Ehsan to intensify the punishment of lesbianism. In some sexual offences, regardless of the punishment, Ehsan will change the situation of an offender from undeserved for the death penalty to deserve it. This article at first is to have a review over the effects of Ehsan on sexual offences, and then explains the etiology of intensification of punishment in this regard; and finally criticizes the new provisions on Rajm in Islamic criminal law of Iran, 2013 penal Code.

Uncertainty or error in word means mistake, ignorance and unawareness. And in legal sense it means that the murderer targets an objective person but hits somebody else and kills him/her for any reason including lack of skill or involuntary causes. In respect to the impact of error in target on nature of murder, it seems two modes should be distinguished: 1- If a person intends to shoot on a punishable thing, animal or person and his shoot would go wrong and hit a respectful one, in this case the murder is considered as pure error.2- If a person intends to shoot on a respectful one, but his shoot would go wrong and kill another respectful person, this case is assumed as intentional murder according to criminal rights logic. Regarding Shiite jurists view on error in targeting, most of them assume this kind of murder as pure error without distinguishing between shooting to a punishable or a respectful person. The same case is seen in Article 296 Islamic Penal Code (1370). Fortunately, by deleting old article 296 and registering Clause “D” Article 290, the new legislator has been trying to declare that error in targeting where both primary and final target are respectful persons, has no impact on the nature of murder (as according to Article 294, error in identity has no impact on the nature of murder) because if we accept that legislator’s goal is to protect each person not one or some specific one (s), then there is no difference who would be murdered at the end. The important point is that a respectful person is murdered so the murder is considered as intentional murder.

Insulting to prophet or Imam is obscene, shameful and insupportable for any Muslim, so the person who insults must be killed. Any where that there is no Islamic government or it has not been ordained any rule about killing insulter; Killing insulter has no retaliation (punishment). But when legislator especially issued a rule for Killing punishment in article513 for the crime of insulting to prophet or Imam, it is for in habiting to execute private justice and the government is responsible to execute putting to death (Killing), that its necessity is public trial (judgment) and legal formality nonetheless, if a person Kills insulter for executing legal (juridical) task, Killer must be proved his/her crime in the court, and in any case, according to article 612 act of Islamic punishment rule, providing disruption in regularity and security of society, he/she is meritorious for governmental punishment. Unless, based on religious law and constitutional law, leader permit Killer from governmental punishment, because Judicial power is his status, but if killer kill insulter in out of Iran, he/she immunes from punitive pursuit and retraction. But if insulter is killed with non – divine stimulus, Killer must be condemned to punishment for intentional Killing

Honor killing is not a phenomenon related to one or more specific countries or religions, however, it often occurs in countries with Muslim majority. Besides other factors affecting the occurrence of honor killings, criminal laws of a society can have significant effect on the community level. Determining the type and amount of punishment for honor killing perpetrators, the rate of population information about amnesty law, amnesty of slain' s parents and other factors can decrease the honor killings. Reviewing laws and regulations in our country can affect it too. On the other hand, jurisprudence sources related to honor killing subjects can be changed.

Homicide is considered the most grievous offence to a reasonable creature in which the offender ispunished and faced with severe penalty. But in some cases, people do something that makes themsubject to blood money nullification . This issue is treated in Islam as blood waste.From special proceedings of fatal offences, sole jurisdiction of the judiciary to arraign,prosecute and punish the accused as well as the principle of legality of the crime and therelative penalty and the right to counsel, we come to the conclusion that no one is rightfulto kill a person at the thought that his/her blood money is nullified. In case he does so, he issubject to retaliatory punishment and Note 2 of Article 295 with some specification isallocated to the wrong belief in the issue. With the omission or at least adaptation of thenote we are able to hinder some branches of the country’s supreme court to bring the wrongbelief in their judgement also pave the way towards more igorous proceedings by the judge.

The development of social relations, and the increasing complexity of these relations, requires order and security. According to the rule citizen’s rights and freedom should not be violated. The establishment of such order and security is only the duty of the government. In an Islamic government establishing such security and justice is the exclusive right of government also. The great Islamic jurists put emphasis on these rights and is practiced by resorting to the judiciary, legislative and executive powers. Resorting to punishment, which is one of the most important means for establishing public order, is in the hands of the government too and is not transferable to citizens. There is some misunderstandings about some of the articles in the Islamic punishment act, (due to this falsity) which they believe it permits citzens to administer justice personnally. The results of such action on one hand is the violation of the judiciary laws and also ignores the rights of the defendant. Thus it would create chaos in society. So the judiciary should undertake justice entirely with full power and firmness in order to prevent such chaos.