فصلنامه پژوهش های فقه و حقوق اسلامی
سال هفدهم شماره 3 (پیاپی 64، تابستان 1400)

The intentional Crimes against physical integrity are among the crimes in which the private aspect is very colorful due to the direct harm to individuals. Therefore, the retribution as the main penalty like the blood money is given to victim or his/her parents. This issue has led some to ignore the separate right to punishment for society. In Islamic jurisprudence and consequently in the regulations of Iran, the discussion of the legitimacy of the ta'zir of the perpetrator in in case of retribution, the subject of the social aspect of crime, had become one of the challenging issues after the victory of the Islamic Revolution. In the Islamic Penal code adopted in 2013, by enacting general provisions in Article 447, has tried to regulate the ta'zir of the crimes in a disciplined manner, although the amount of ta'zir, especially in the case of physical crimes less than murder, is very ambiguous. In other Islamic countries, too, the social aspect of the crime has been recognized. In the present article, with a descriptive analytical method, this issue has been studied in a comparative manner according to the jurisprudential principles which indicated the strength of the position of identifying the social aspect of intentional crimes in perspective of jurisprudential documents. In addition in our legal system, the punishment of social aspect in murder according to Article 612 of the Book of Ta'zirat, and Physical crimes less than murder, if they are examples specified in Article 614 or committed with a weapon, will be determined in accordance with this article, otherwise alternative punishments of imprisonment will be imposed.

The most important position of civil responsibility in societies is more tangible and sensitive. On the other hand, the relationship of contracts with public order has also caused some restrictions. The effect of the consent of the lost in civil liability conflict, even though is led to satisfaction. It is effective in some places and ineffective in other ones due to being against public order. Therefore, the accurate cognition of the lost satisfaction before and after occurrence of the loss in terms of effect and lack of influence and understanding other theoretical frameworks seem to be essential. On the other hand, the satisfaction of the lost with the assumption of maturity and accuracy which is not prohibited by law is also accepted by the intellectuals, rational, and the custom and conforms to the basis of the principle of sovereignty, and the will be in the rights and norm of the owner permission.

The Holy Legislator of Islam has established the concept of confession in order to protect the rights of individuals and to regulate affairs in judicial trials, including legal and criminal, and to administer a fair trial. One of the essential rules of Islam is that when a person confesses his harm to he did so, and his confession is valid, and he will be responsible for what he confesses. Accordingly, confession is to et someone know that someone else has a fixed right to it.  A reason to believe in the veracity of confession is the famous prophetic hadith in the sense that; " The wise people are allowed to admit themselves”. In addition to the poems, there are sentences from the verses of the Holy Quran, “... they should be people who are in installments as martyrs of God, even if it is upon themselves ...”The conformity of this rule with the manners and methods of the wise is another reason for its authenticity. One of the important issues of confession is testifying in cyberspace. Confession sometimes occurs in court and sometimes outside the court. Undoubtedly, the confession in court, which is called judicial confession, has a special validity. Is confession acceptable in cyberspace? According to the opinions of the jurists and practice of the wise, the evidence for the authenticity of the confession must be in person and with the Imam (ruler). Considering absoluteness of evidence, the confession can be in absentia and out of court, and the condition of in the presence of Imam is based on the concept of title and example does not contradict. Therefore, it can be said that confession in cyberspace, which is not in person, is valid if it is definitely attributed to the object of confession.

Testimony as one of the oldest proofs of criminal and legal claims in the era of human equipment has not lost its immense importance in modern legal systems, discovery of reality. The mystery of this is in many, sometimes complicated circumstances, which criminal justice systems, and especially Islam, have seen as necessary. One of these complex circumstances, which has various interpretations of the difference between Islam and Shi'a and Sunni faith. Assuming the other conditions of testimony, the concept of faith and its effect on the acceptance of witness testimony from the viewpoint of the two great Islamic sects, determines the quality of the encounters of the judicial system of Iran and other Islamic countries with intuitions that have a different religious or similar to the apparent opposition. A closer look at the Sunni and Shiite principles and documents reveals that there are differences between religions in the concept of faith and the rejection of the martyrdom of infidels and Christians. The Hanafi and Hanbali religions absolutely accept Christian and Jewish martyrdom among themselves, but other religions have only permitted the martyrdom of the People of the Book in their wills; Therefore, the main difference of opinion is in accepting the testimony of a Shiite. In this regard, Hanbali and Maliki, with their own definition of faith, have commented on the absolute rejection of Shiite martyrdom; But in contrast to the Hanafi and Shafi'i religions, they have taken a milder view. Among the Imami jurists, unlike the old jurists who categorically reject the martyrdom of the Sunnis, contemporary jurists consider the martyrdom of a Sunni to be valid; That such a theory is more in line with the basic criterion for accepting testimony, namely the ability to discover the truth and the degree of truthfulness in legal systems. This paper attempts to discover the Persian point of view of acceptance or rejection of martyrdom in those claims that exist between witnesses in terms of religious orientation.

Not exceed limits in taking life is a phrase derived from verse 33 of the Surah al-Asrain the Holy Qur'an; In this verse, after expressing the unlawfulness for the murder of man and the right of victim's avengers of blood to the murderer, excessive killing is prohibited to commit, the appearance of the verse and the phrase before it, is about not exceeding in retribution of a person, but considering the generalization of murder. It can also include  cases where a person deserves to be deprived of life like execution, so that if a person is convicted to be deprived of life he should not be subjected to any other physical and psychological suffering, including the implementation of the deprivation of life penalty by using a rope, which would prolong it and necessarily double the suffering.  Therefore, we have to use different means, such as anesthetics with conditions and firearms that speed up the deprivation of life penalty. The same is true  when a criminal has committed several crimes and deserves several punishments, including deprivation of life, the interference of the punishments in deprivation of life causes exceeding limits in taking life. On the other hand, given that the punishment for retribution is a sin against mankind and is due to men, the delay in its implementation until the request of the avengers of blood is giving the convicted person an opportunity to live, then he must be kept in jail until the implementation, which cannot be exceeding limits in taking life because incurring jail is lower than killing.

One of the important approaches in jurisprudential studies is to pay attention to the aims of the shari'a in the religious law, namely, to pay attention to the criteria and causes of the sentence, as well as its expedients and corruptness from the perspective of the legislator of islam. In such a way that purposes and causes of the sentences, not have constradictions with general nature of sharia of islam. According to the general aims of the shari'a in marriage, which is the formation of the family, the production of the generation and the creation of the human face, is not the livelihood and lust of the animal, and the partial purposes of the shari'a is in alimony, which is the provision of women's needs in the family. It can be said that first, alimony of spouse as a unilaterally duty is responsible for husband and only the disobedience of the wife prevents of countinuing. The alimony of the woman is related to the supply of material needs, health, spiritual, psychological, scientific and educational support to the strengthening of the family system and the proper education of children. Therefore, the determination of alimony in material matters such as housing, clothing and food is through tarighah and does not matter.

Cyber ​​theft as a new type of theft has been developed in cyberspace in recent decades. And this indicates the non-deterrence of existing laws, one of the most important factors in the weakness of the laws related to cyber theft is the knowledge of its nature and the incorrect interpretation and explanation of the Islamic Penal Code according to Article 12 of the Computer Crimes Law. And this is while cyber theft is not much different from physical theft in terms of substance and conditions and elements of the crime. The present article uses descriptive and analytical methods of jurisprudential arguments and existing laws in the position of feasibility of enforcing the limit in cyber theft. And the answer to the question is whether the definition and conditions stated about physical theft in jurisprudence and law are applicable to computer theft? What are the reasons for those who believe that it is ta'zir? Is the condition of blasphemy and taking property in computer theft applicable? Finally, by rejecting the reasons for those who believe that it is ta'zir and presenting a reason for the full compliance of the conditions, the extent of cyber theft has been proven.

Persuasion of the conscience of the judge is explicitly stipulated in Article 374 of the Code of Criminal Procedure adopted in 1392 , although its validity is not explicitly mentoned in the Quran and hadiths. But from the content of  some verses including verse 58 of Surah An-Nisa, if you rule between the people and  rule with strict justice. Also , Islamic narrations can be drawn upon for the sake of con vincing conscience. If we seek to diccover the truth in the judiciary and to establish judicial justice in accordance, and not just settling the hostility, the judge himself will be allowed to use the two basic principles of free achieving of reason and evaluating the reason and do the necessary investigation on the basis of the evidence presented during the trial, and in case of conviction especially in the criminal case which is related to the lives, honor and dignity of the people, if he comes to in ternal conscience, he can issue a verdict.

In Islamic law, in cases of doubt in the presence of the duty and failure to provide evidence of the conduct of the duty, the principle should be based on the absence of the duty and thus not imposing a responsibility on individuals. In the legal term, this principle is based on the requirements of judicial justice and supports the freedom and dignity of individuals. The extent of the principle of innocence is very wide and inclusive than Islamic law but the commonality of this principle in both areas is alesalat ol adam. This article, using a descriptive-analytical method and using library sources, seeks to answer this question: What is place and guarantees of the principle of innocence in Islamic and public law and in the judgments of Administrative Justice Court? Conclusion of this article is that the principle of innocence and its guarantees, as referred to in criminal law, in the field of public law has not been cited by the administrative proceedings authorities and a number of branches of the Administrative Justice Court, in judicial controlling of quasi-criminal administrative bodies, have referred to the guarantees of the principle of innocence and have considered them as one of the principles of fair administrative hearing. According to this principle, one cannot be held accountable or be restricted his freedom without giving any reason; An approach that if pursued extensively and severely by all branches of the administrative Justice Court can improve the performance of administrative authorities and quasi-criminal administrative bodies.