Trusting the judge; Analyzing Article (728) of the Islamic Penal Code according to the Guardian Council's Faghi Views

As a legal point of view, article (728) of Islamic Penal Code has a special position in the Tazirat Act. This article rules the whole Tazirat as a principle. After a proper understanding about this article, a new theory will govern the "Penalty" principle in Iran penal system, which is the theory of "expediency- tendency" in Tazirat. According to this theory, the legislative has precisely provided the maximum punishment in Tazirat and the judge can by no means issue a verdict beyond these legal provisions. But in determining the minimum punishment, changing the punishment into other penal, the judge has a wide discretion. In fact, this is the judge who must consider the exact position of the criminal for ruling "a proper" punishment; and if he doesnt find an expediency in Tazir or find an expediency in Tazir, he can use a penal alternative. The expediency is based on correction and deprivation of a criminal from committing a crime. The true understanding of this theory depends on reconsidering the cause of enactment of this article and its position in the legal system which is "intentionally" or "by expediency" forgotten.