نشریه فقه جزای تطبیقی
سال یکم شماره 1 (بهار 1400)

Repentance is one of the institutions that is very effective in the crimes of Hagho Allahi. In some crimes, this institution, although it may reduce the burden of sin and the punishment of the Hereafter, But it does not abolish Hadd. One of these crimes is adultery, which is one of the crimes against spiritual personality and physical integrity. This crime causes serious harm to the women of the society in such a way that the victim is directly harmed by this crime and indirectly harms the society. This is the reason why this crime, contrary to the prevailing opinion (and the opinion of the legislator in Article 114 of the Penal Code), should be considered as crimes of human rights and therefore repentance should not be considered acceptable in it; The reasons for this can also be obtained, first of all, by the analogy (priority analogy) of the crime of Qazf, in which the execution or non-execution of the Hadd was violated, because he was directly severely injured mentally and physically in this violation. Therefore, the victim must decide on the punishment or non-punishment of the aggressor, that is, he can request the execution of the Hadd or pardon him. Thus, the forgiveness of the victim is a necessary condition for the fall of rape (murder). The second reason for the inhumanity of the crime of rape can be proved by paying attention to the application of narrations in which the transgressor does not repent and the opinion of some contemporary jurists confirms it.

Despite the declaration of UN to protect the world from the scourge of war and its plight, war remained as always the history of the painful reality of human life in the second half of the 20th century, and unfortunately, the rule of sanctioning war, which is among the international rules, has failed to be implemented, and international law on war-preventive law has failed. This has led countries to do their best to develop legal rules governing wars. In this article, the statutes of five international criminal courts, part of the rules on the rights of armed conflict and the evolution of the criminalization of war crimes in the statutes of these courts have been comparatively studied and stated how the rules governing war are becoming more complete and precise every day. Currently, the statute of the international criminal court (ICC) is the most complete international document on the criminalization of war crimes committed by all.

The doctrine of Absolute Velayat-e Faqih in Shia Jurisprudence, dating from one thousand years ago, is the most fundamental tenet of philosophical discourse in the political and Islamic puzzle, and has always been at the centre of contemporary and various discussions. Although the authority of Vali-e Faqih acting on behalf of the Infallible (AS) in areas such as granting pardon to criminals guilty under Hadd has been analyzed in books of Shia jurisprudence, constitutional and positive laws of Iran, more research needs to explore different aspects of this fundamental concept. Furthermore, the doctrine of absolute Velayat-e Faqih was propagated by Imam Khomeini and other antecedent jurists. Their belief and assertion on expanding authority of Vali-e Faqih and his equivalent position to that of Prophet Mohammad (PBUH) and other Imams (AS), other than showing the bravery of the aforementioned jurists, also displays their affluent interpretation of Shia jurisprudence and its theoretical and practical bases. Accordingly, the current study is an attempt to analyze different conceptions of the authority of Vali-e Faqih with regard to granting pardon to criminals guilty of Hadd.

The United Nations has adopted four important instruments on the rights of the child, of which the Convention on the Rights of the Child is the only binding instrument. These documents include various rights for children and adolescents, including discriminatory proceedings. It can be said that discriminatory proceedings are also one of the privileged rights of children and adolescents who oppose the law. Because the child or adolescent who opposes the law, is the victim of unfavorable living conditions and social environment. Hence, they need the differential support of the legislature. Highlights of the Differential Trial Based on International Child Rights Documents, in the Preliminary Investigation Stage, including the Juvenile Police and the Juvenile Court, and in the Proceedings, including the Juvenile Court, the Juvenile Judge and the Special Adviser Turns. This article shows that Iranian criminal justice system has taken firm steps to comply with international instruments on the rights of the child, both binding and non-binding, to achieve a discriminatory trial for children and adolescents. Therefore, it can be argued that the differential discourse of the Iranian criminal justice system promises the globalization of the rights of children and adolescents. Of course, while praising the legislature's discriminatory approach, some objections to this view should not be overlooked, such as the lack of a juvenile police force, the presence of a counsel in court, and the lack of free access to lawyers. It is hoped that by correcting the existing flaws, the mission of the differential criminal justice system, reforming and rehabilitating children and adolescents in conflict with the law, will be adequately met.

The principle of individualizing, is something new in criminal law in western countries, but has a long history in Islam. This principle is the result of paying attention to the character of criminals in the beginning of 19th century. According to this principle, punishment should coincide with the criminal’s character and the conditions of the crime. Islam had this principle embedded from the beginning, and provided measure to bring into account criminal’s character. This principle, from the beginning of legislation (After the Islamic Revolution), has not been fully executed, but in the new law, the legislator has taken this into account. The goal of this article is to describe this principle according to the Islamic Jurisprudence principles that are accepted and passed in the 1392 Islamic criminal code and to analyze it to show the advantages, innovations, and disadvantages to make corrections to it in the future.

In the literature of criminal law, criminal intent as the main pillar of criminal responsibility and the element of guilt (criminal error) is recognized as an exception. But lawmaker in Islamic Penal Code approved 2013 has developed the theory of guilt as the basis of criminal responsibility. From now on, it can be said that the element of guilt, such as the deliberate element, must be recognized as a dual element of criminal responsibility. This article seeks to identify instances of this development, to prove the expanding of the theory of guilt in Islamic Penal Code approved in 2013. By virtue of this development, to establish a causal relationship, the traditional theory of the responsibility of precedent cause has been modified by the acceptance of the theory of guilt. Another evolution is that the criminal responsibility of juridical entities and the criminal responsibility stemmed from both acts have been identified in the recent law based on fault. Fulfilling the physician's criminal responsibility is also based on his fault for treatment. And finally killing from fault is also recognized as manslaughter and by virtue of this; the scope for pure error killing has been reduced. This article by using documentary study method and logical analysis technique, after reviewing and criticizing numerous examples in Islamic Penal Code 2013 provides a perspective that the legislator in the new approach has accepted the theory of guilt as a fundamental pillar of criminal responsibility.

Man is a creature that inherently desires eternal survival and life, and for this purpose has invented methods in which cryonics or human freezing is one of the newest and most advanced and at the same time the most challenging. In this method, it is hoped that the dead person's body can be kept through freezing for a long time and will be revived in the future. Contemporary jurists have forbidden this practice. According to most of them, human freezing is a form of murder if it is before a person's natural death, and if it is then, it is illegal to keep the body and not observe the rituals related to the burial of the dead person. Finally, according to the rule of "Ta'zir for Haram actions", the perpetrators of this illegitimate act can be punished.

Exploring the crimes of economic corruption is of great significance due to its great effect on public opinion. The request of the former head of the judiciary from the leadership to establish a special court for economic corruption can be evaluated in this regard. In this paper, an attempt has been made to study the legal jurisprudence of investigating the crimes of economic corruption in the light of a fair trial. The present paper is an analytical descriptive study, applying the library method. The results indicate that the broad jurisdiction provided for in the suggested proposal and authorization of the former head of the judiciary to establish a special economic court to deal with economic crimes violated the rights of the accused persons, which are based on jurisprudential rules and domestic and international law, to enjoy the principles of a fair trial, widely and even irreparably because determination and speed are not necessarily provided through limited means by depriving defendants of their legal rights, which have been tried for years to establish. The examples of defendants' legal rights consist of holding fair trials, a proper judicial process during the trials, the right of access and free choice of lawyer, the right to appeal, having legal notice and objections, and protesting against temporary detention, which in the obvious form was ignored by violating some of the rules of criminal procedure. The conclusion is that the establishment of special courts and authorities can only lead to justice in the proceedings if it is in line with a fair trial.