Criminal Law
Mohsen Borhani; elaheh lotfalizadeh
Abstract
Due to the need to pay attention to dejudicialization and decarceration strategies, the repentance can be an effective tool to reduce the criminal population of prisoners. In 1392, the legislator for the first time made a general rule regarding the effectiveness of repentance in ta'zirat. Considering ...
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Due to the need to pay attention to dejudicialization and decarceration strategies, the repentance can be an effective tool to reduce the criminal population of prisoners. In 1392, the legislator for the first time made a general rule regarding the effectiveness of repentance in ta'zirat. Considering the legal changes and the approval of Article 115 of the Islamic Penal Code, it is important to address the realm of repentance in time and the periods in which this institution can be used. In this article, with a descriptive and analytical method and with a critical approach to uniform judicial precedent vote No. 813 of supreme court, regarding the time of acceptance of repentance, this claim is proved that based on jurisprudential and legal principles, not only before proving the crime, in all ta'zir crimes, the repentance of the accused will result in the cancelation of the punishment, but also after proving the crime and even at the time of Execution of punishment, this institution can be used.
Criminal Law
majid sadeghnejad naeiny; Sakineh Khanalipour Vajargah
Abstract
Duress as one of the obstacles to criminal Liability is mentioned in Article 151 of the Islamic Penal Code. According to this article, in ta'zir, the duressor is sentenced to the punishment of the perpetrator. In Hodoud and Qesas, they are sentenced according to the relevant regulations. Although this ...
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Duress as one of the obstacles to criminal Liability is mentioned in Article 151 of the Islamic Penal Code. According to this article, in ta'zir, the duressor is sentenced to the punishment of the perpetrator. In Hodoud and Qesas, they are sentenced according to the relevant regulations. Although this article refers the duressor's sentence to the relevant regulations, but nowhere in the Islamic Penal Code is this presumption mentioned and in fact the law is silent in this regard.The main question of this research is what is the punishment of a duressor in Hodoud (for example, duress another to drink intoxicants)? In this article, we will analyze lawyers' opinions and jurists' fatwas in this regard with an analytical-interpretive method.The results of the research indicate that due to the silence of the legislator in this regard and also the lack of an explicit jurisprudential text or fatwa in this regard, different approaches to punish the duressor will be conceivable. Finally, it can be consider as a accessory and be punished by article 127 of the Islamic Penal Code
Ali Gholami; Mohammad Hossein Mojtahedi; Mohammadhasan Tahmasebi
Abstract
The balance between protecting individual rights and, at the same time, preserving and sustaining social security is among the key tasks of the criminal justice system, which is being challenged in the context of some guarantee of performance. As in some of the crimes, the preservation of the dignity ...
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The balance between protecting individual rights and, at the same time, preserving and sustaining social security is among the key tasks of the criminal justice system, which is being challenged in the context of some guarantee of performance. As in some of the crimes, the preservation of the dignity of persons and the psychological security of the community, even the possibility of declaring and expulsion of the crime should be avoided. On the other hand, the introduction of perpetrators of certain crimes-as violators of the rights of the community-is also considered necessary for the establishment of social security. Tashhir's punishment is a typical example of the above proposition that has been the subject of some of the official poetry in some of the legal material. These include items 19, 23 and 36 of the Penal Code as core and supplementary penalties, as well as Note2, Article353 of the Criminal Procedure Code. The criminal system of Islam recognizes the Tashhir punishment and is organized in a structured manner with specific objectives for deterrence and prevention. Meanwhile, Tashhir has been censured for some limited crimes and for a limited number of punishments, but its application to other torture offenses is a matter of reflection. The present paper, using a descriptive-analytical method, first addresses the question of whether the prediction of Tashhir in the scope of Ta'azir crimes violates Islamic norms and norms, and then, in a comparative approach to the laws and decrees of the United States to justify the criminalization of this punishment and the judiciary The existence of this criminal institution will be analyzed in the criminal justice system. Finally, the paper has proven that there is not only a legal and jurisprudential impediment to recruiting Tashhir punishment for imprisonment but that contemporary criminological and psychological principles continue to pursue such goals as deterrence and the prevention of the commission of certain crimes possible through the use of Tashhir punishment.
Abdolreza Asghari; Mehdi Salehi Moghadam
Abstract
Drinking alcohol is of offences which the holy Islamic law giver has laid down eighty slashes as legitimate hadd. This punishment was mentioned in article 165 of Islamic Penal Code of Iran (1370) and totally it stated drinking and eating alcohol. After codifying the Islamic Penal Code of Iran in 1392 ...
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Drinking alcohol is of offences which the holy Islamic law giver has laid down eighty slashes as legitimate hadd. This punishment was mentioned in article 165 of Islamic Penal Code of Iran (1370) and totally it stated drinking and eating alcohol. After codifying the Islamic Penal Code of Iran in 1392 , the legislature decided in art.165 to depart from the title" liquor Hadd-punishment" to the title" liquor consumption". Therefore, the liquor consumption in any way such as drinking, injection and smoking causes the legitimate punishment. The common aspect of these two titles is what reason making the criminalization of liquor which creates the legitimate hadd which has been discussed in fiqhi books (Islamic jurisprudence books). The following paper has examined the different ways for the consumption of intoxicating and alcoholic drinks. For this reason, different attitudes are expressed for the way of the consumption of alcohol or liquor and the attitude of the legislature for proving the legitimate had in any way is criticized and evaluted.
Abolghasem Fallahi
Abstract
Mitigation of punishment is one of the effective tools of criminal policy in implementing the individualization principle of punishment, more effectiveness, and attainment of the rehabilitative and corrective goals. In Iranian criminal law, according to Islamic jurisprudence, there is no Mitigation of ...
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Mitigation of punishment is one of the effective tools of criminal policy in implementing the individualization principle of punishment, more effectiveness, and attainment of the rehabilitative and corrective goals. In Iranian criminal law, according to Islamic jurisprudence, there is no Mitigation of punishment in the Qisas and Diyat, and these penalties are subject to their own rules. In the scope of Ta'zirat, before adoption of the Islamic Penal Code of 2013, the Mitigation of punishment was not organized in the laws and there was no clear judicial procedure in the criminal courts regarding the manner and the amount of Mitigation. The evolutions and changes made in this law based on corrective goals and social defense are accompanied by a different approach to the Mitigation. On the one hand, the amount of Mitigation is determined on the basis of the punishment rating, mitigating factors are confined, Absolute conversion of incarceration to fine is prohibited, and power of judges in amount of mitigating are limited to a certain extent. On the other hand, the number of mitigating factors has been increased, the scope of the effect of the Mitigation has been developed, and the combination of the provisions of Mitigation and intensification has been organized. However, in spite of the coherent and organized appearance of the provisions of this law, there are some loopholes in this structure, which will manifest itself in practice and may prevent it from achieving its goals. The present study, by demonstrating that the deficiencies of this law will virtually form part of its provisions in conflict with other sectors, will provide suggestions at both legislative and judicial levels to address those objections.
Hamed Rahmaniyan; Mohammad jafar Habibzadeh
Abstract
The phrase “Hodood that are not mentioned in this code” in Article 220 of Islamic Penal Code of 2013 and “Shar’i definite Tazir” in Article 115 of this code are ambiguous from Figh and legal viewpoint, then we have to resort to interpretation for recognizing their instances, ...
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The phrase “Hodood that are not mentioned in this code” in Article 220 of Islamic Penal Code of 2013 and “Shar’i definite Tazir” in Article 115 of this code are ambiguous from Figh and legal viewpoint, then we have to resort to interpretation for recognizing their instances, In this regard, three interpretations are possible, First, restricting “Hodood” to six famous types and allocating definite Ta’zir to punishments with definitive cause, kind and amount, Second, allocating Hodood to punishments with definite kind and amount and cause and allocating definite Ta’zir to punishments with definite cause and indefinite kind and amount, Third, allocating Hodood to punishments with definite cause and kind and amount of certain definite punishment and allocating definite Ta’zir to certain indefinite cause and kind and amount, In this article we consider different views and finally choose third interpretation as a non-instrumentalist one that has the highest moral acceptance, This accepted interpretation is consistent with rule of law and other certain legal principles,
