نشریه فقه جزای تطبیقی
سال سوم شماره 3 (پاییز 1402)

Corruption has existed as an inescapable and uncommon phenomenon among all societies from the past to the present and it seems that wherever there is some degree of authority, corruption is an inescapable thing. Corruption is one of the problems facing the administrative system that has many negative social, political and economic consequences. The question of the article is, what are the social prevention mechanisms of corruption? The hypothesis of the article is that the development of citizens' awareness and participation is the most important social prevention mechanism against corruption. This article is descriptive and analytical and has investigated the question by using the library method. Social prevention is one of the types of non-criminal crime prevention that plays an important role in controlling and reducing crimes. The findings indicate that the growth and promotion of collective awareness, cultural development, civil participation of citizens, the active role of social networks and phenomena such as whistle-blowing are among the most important social prevention mechanisms against corruption.

The legislator of the Islamic Penal Code approved in 2012, in Article 19 and in the position of explaining the 8 graded Ta'zir, did not make any reference to capital punishment and ruled that the ta'zir is less than the limit based on only one jurisprudential understanding. The coercive result of this is the lack of execution in the mentioned article. Therefore, in order to execute the perpetrators of this category of crimes, they resort to Hadd Corruption, and this has caused conflicts with the principle of legality of punishments, the principle of proportionality of crime and punishment, the principle of the necessity of preventing the extensive interpretation of Hadd & Ta'zir punishments. The current research, which is organized by descriptive-analytical method, does not necessarily consider Ta'zir as less than the Hadd. According to these analyzes and with the strengthening of Ta'zir institution, Article 19 needs to be revised. A situation that is compatible with the principles of applying punishments, the needs of today's society, and the expansion of sovereignty, and causes the non-mixing of meaning and examples of Hadd & Ta'zir.

The rights of children due to their special conditions, are the focus of domestic and international documents. For this reason, the judicial investigation of child abuse requires the role of other authorities, including forensic medicine. The aim of the current research is to examine child abuse by parents in jurisprudence and law; with emphasis on the role of forensic medicine. The question is, how can forensic medicine prevent child abuse by parents? The hypothesis is this: As a special authority, the forensic medicine, with its knowledge and expertise, acts to identify the physical and physical cases of the child abuse and reports them to the judicial authorities. The findings of the research confirm that due to the complexity of diagnosing child abuse and the rapid disappearance of physical injuries, the lack of expertise of judicial institutions, as well as the need to determine the exact amount of injuries and damages inflicted on children, we need the role of forensic medicine. Providing specialized and technical information and informing judges about new types of child abuse is one of the forensic assistance in this field. Due to the necessary expertise and skills, forensic medicine is both a suitable support for the realization of justice in the judicial system and the issuing of decisions, and a source for reforming the structures that lead to the occurrence of child abuse. In the current research, a descriptive method was used, and the materials were also collected by means of documents.

Some violence against children and teenagers is rooted in laws and regulations, which can be called legal violence. Legal violence means violence that is imposed on children and adolescents in the name of law and by the legislator. One of the cases that is considered legal violence against teenagers is the punishment of people under 18 years of age. In Article 91 of the Islamic Penal Code of 2012, in minimum compliance with international documents, the Iranian legislator required maturity, sound reason and criminal competence for sentencing offenders to Hadd & Qesas. But the serious ambiguity that exists in the above-mentioned legal article is that: Are criminal growth and intellectual perfection in adults under 18 years of age assumed or not? Because in the first assumption, the accused must prove that s/he is not mature, but in the second assumption, the proof of the contrary is up to the accused or the prosecutor's office. In this article, while expressing different views, the authors have reached the conclusion that although the appearance of Article 91 of the Criminal Code requires maturity and criminal competence for juveniles responsibility, but in fact, it implies that they are not criminally competent, unless it is proven otherwise; because otherwise, while promoting a kind of legal violence against teenagers, it is concluded that the legislator has not followed a discriminatory policy regarding adults less than 18 years of age.

As one of the dilemmas more prominent in our society in the recent years, is the issue of punishment of children, that in some case referred to as child abuse. From the Islamic point of view, upbringing children by methods such as encouragement, playing games, and paying respect are much more acceptable and effective. But, using punishment, which is interpreted as “Correction” and “Tazir”, in particular and special cases and by a definite mechanism, has been referred to as the last method of treatment. Therefore, correction and punishment of children in Islamic jurisprudential teachings have been recognized as one of parents’ rights and statutes acknowleged it. Therefore, under paragraph (d), article 158 - Islamic penal code, the parents’ measures in punishing their children within normal limits have been justified. But, the notion “normal limits” produces ambiguities for this legal right and based on constitutional principle 167, to remove the obscurity, one should refer to sharia references. The present research studied the jurisprudents’ standpoints on the nature of children correction. It also analyzed if correction of a child is discretionary or not. Moreover, it studies Islamic punishment code in this regard.

Public proceedings are one of the principles of fair proceedings, the limitations and exceptions of which are of great importance and sensitivity. The nature of these limitations and exceptions are important issues that have received less attention in the shadow of the principle of public proceedings. The purpose of this article is to examine the exceptions of public proceedings in criminal jurisprudence, Iranian criminal law, human rights documents and international criminal law. This article is descriptive and analytical, and the library method is used to investigate the mentioned topic. The findings indicate that in jurisprudence, the acceptance of the principle of public proceedings can be inferred, but there is no mention of its exceptions. In Iranian criminal law, at the discretion of the court and in cases such as children's court, public decency, public order and security, religious or ethnic sentiments, and private lawsuits, if the parties to the lawsuit request, the proceedings are closed. In human rights documents, ethics and public order and national security of governments are exceptions to public proceedings. In the statutes of international criminal courts, issues such as public order or morality and security, protection of witnesses and victims, compliance with the expediency of justice, and protection of documents and information are exceptions to public proceedings. Although in international documents, these exceptions are stated in a general way, but the general and non-transparent statement of these exceptions in the domestic laws of countries, including Iran, cannot be defended.

Taking an oath and Qasamah are two reasons to prove criminal claims. In this paper, an attempt is made to address this important question that is it possible to use taking an oath and Qasamah in proving blood money for body parts and interest? Legal texts and jurisprudential and legal foundations show that although apparently taking an oath can be used in proving financial matters like blood money, but this proof seems to emphasize only testimony; thus, providing testimony beside an oath is actually only one testimony and cannot be considered as oath. The present paper aims to validate taking an oath and Qasamah in proving blood money for body parts and interests. The method used in conducting the study is descriptive-analytical. Library data collection and comparative approach was done to investigate its jurisprudential validity. The findings indicate that, in the event of dispute between victim and criminal regarding loss of interests, it is provable with Qasamah. According to well-known comment by jurists and legal procedure, Qasamah in injury accrues blood money, not Qisas. But, with support of some jurists' comment, we can suggest that in case the crime results in amputation, one may suggest Qisas due to performing Qasamah.

The Aim of Sharia is one of the important issues in jurisprudence, which is important for the dynamic development of jurisprudence. The purpose of this article is to examine the question of what is the place of the Mezagh of Shariat in Imami jurisprudence and what are its functions in jurisprudence and criminal law? This article is descriptive and analytical, and the mentioned question has been investigated using the library method. The findings indicate that although the Aim of Sharia is not considered as an independent reason among the evidences for inferring Sharia rulings, but by examining its examples, it is clear that this matter has been cited by jurists as an independent evidence from other inference evidences even without explaining its elements. By explaining the elements of Aim of Sharia, it can be considered as an independent reason among other reasons and cited. The Aim of Sharia is in line with the goals of Shariah and it is a way to implement and realize the goals of Shariah. The sanctity of Tasbib, adopting the approach of reforming and improving the criminal in Taziri punishments, caution in blood and taking property from the usurper is the most important function of Aim of Sharia in jurisprudence and criminal law.

Jurisprudential foundations of non-judicial settlement of criminal cases Non-judicial settlement or, in other words, mediation between litigants ``in legal claims and criminal claims with the aspect of human rights'' and settlement (mediation) between the judge and the criminal - or intercession (in criminal matters of God's right) are two non-judicial solutions. For the chapter of lawsuits and response to violations of legal norms which arose from the definition of man in Islam and its ideological viewpoints in jurisprudential sources and works. In this method of dispute resolution, the litigants seek to reach a common agreement without the limitations of the law book and formal proceedings with the help of a third party. Following the legalization of criminal mediation in Iran, it is very important to explain its coordinates in the subject law and determine its scope and territory in responding to all types of crimes (limits, punishment, retribution and diat). It should be seen whether the Iranian legislator has been able to provide the possibility of maximum use of this process by efficiently explaining the realm of mediation, therefore the concentration of work in the courts and its consequences and the benefits that resolving disputes outside the courts for the governments and especially the parties The difference in perception has led to the growth of arbitration and the creation and application of new methods of dispute resolutionThe present research has investigated the solutions of jurisprudential foundations of non-judicial settlement, especially mediation in criminal cases, as a well-known and widely used method of analysis and covered its weaknesses by providing justifications or logical bases.

Corruption on earth is one of the concepts of disagreement and its explanation is very important in cyberspace. The purpose of this paper is to investigate the concept and instances of Corruption on Earth in jurisprudence and criminal law. The present article is descriptive-analytical, and using library method, the mentioned question has been investigated.  The findings indicate that in jurisprudence, Corruption on Earth has not been addressed in a specific headline and mainly in the discussion about Moharebeh is referred to. There is disagreement among jurists on this issue: some have considered it a dependent crime under Moharebeh, and others considered it an independent crime. The second approach is accepted in the Islamic Penal Code of 2013. In Imamiyya jurisprudence, cases such as burning down another house, murdering non-Muslims, and shrouding are known as cases of Corruption on Earth. In Sunni religions, much less is considered as Corruption on Earth and jurists consider the Islamic ruler to determine its examples. Promoting corruption in the community can be done more easily than ever before through a vast virtual space. So there is a possibility of corruption on earth in cyberspace.

Protecting the environment and paying attention to the living environment of others has always been emphasized by religious teachings, and in this, the protection of clean air, which is the basis of human life and other living beings, is of special importance. The rules of Etlaf, Tasbib, Tafrit, Harm, and the rule of respecting people's property can be mentioned in Islamic jurisprudence. The purpose of this research was to examine the criminal responsibility of legal entities against air pollution in Iran's criminal policy. In the meantime, valid jurisprudential foundations have emphasized the recognition and existence of this responsibility, and on the other hand, the Islamic Penal Code approved in 2013 also accepted it, but in the issue of dealing with air pollution, there are still challenges such as: absance of provision on joint criminal responsibility for legal entities and managers, lack of provision of differential procedure for prosecution, investigation and trial of legal entities, and lack of reference to the crimes of legal entities in criminal proceedings.

Penal-oriented criminal policy (security-oriented) is a type of criminal policy that focuses more on order and security in society. This type of criminal policy faces challenges in implementation. Human rights standards are among these challenges. In this article, these problems are investigated. The following article is descriptive and analytical and has dealt with the mentioned topic by using the library method. The findings indicate that both from a jurisprudential and legal point of view, the security-oriented criminal policy causes a deviation from the principle of innocence, limiting individual freedoms, violating fair proceedings, creating special courts and intensifying punishments, not paying attention to the material element of the crime. And the use of unconventional evidence in proving the crime is considered a fundamental challenge for human rights standards. This is despite the fact that human rights in the field of criminal law have defined and specific standards that emphasize the protection of individual rights and freedom. The result is that in adopting any criminal law, it is necessary to consider the components and elements of human rights in the field of criminal law. In fact, the positive interaction of criminal policy with the penal system of human rights is a necessary thing, which of course has its own conditions and faces certain problems and limitations.