جلال الدین قیاسی

Qassāma (Arabic: القسامه, lit.: compurgation, tribal oath consists of 50 men of the tribe swearing to being right) is one of the types of evidence in substantiation of criminal claims that is specific to crimes. Among jurists, there is a difference of opinion about the possibility of punishing the perpetrator in terms of the general aspect of the crime, assuming that the principle of intentional crime is proved through qassāma. Some have not differentiated between qassāma and other evidence, considering it possible. Some have also considered the punishment of the perpetrator to be contrary to the principle of innocence (Arabic: اصاله البرائه, lit.: presumption of innocence) and to be in favor of the defendant. This difference of opinion has led to the issuance of a unified legal opinion (uniform judicial precedent), stating that it is not possible to prove the general aspect of the crime in this case. The present research, using a descriptive-analytical method and a critique of existing views, states that the legislator considers the legal consequences of intentional behavior in cases of establishing criminal liability for the offender, without differentiating between qassāma and other evidence. One of these consequences is the taʿzīr (Arabic: التعزیر, lit.: discretionary punishment) prescribed for crimes against oneself in cases of obstruction of qiṣāṣ (Arabic: قصاص, lit. “accountability, pursuing, or prosecuting”), as mentioned in Articles 612 and 614 of the Penal Code. The absoluteness (Arabic: إطلاق) of these articles also confirms the absence of the aforementioned difference. Therefore, it is possible to prove the general aspect of the crime regardless of the type of probative proof. The proof of this aspect is not based on the evidence for qassāma; rather, it relies on considerations such as the legislator’s expediency in establishing the public aspect of the crime in intentional offenses and the repercussions on the perpetrators of these crimes.

The sacred institution of the family as the fundamental unit of society has a special place in Islamic law. Illegitimate relationships, just as they are effective in the decline and collapse of the family, also play a significant role in preventing the formation of a family. Due to the importance of the bad results of illicit relationships in weakening the expression of the family in the criminal regulations of Islamic countries, adultery and its related crimes have been criminalized from the first crimes and the punishments have been determined as physical and heavy. The comparative study of the regulations of Muslim countries in this field leads us to the strengths and weaknesses of Iran's penal regulations in the investigation of the mentioned crimes.

The method of this research is descriptive-analytical.

Ethical Considerations: 

All ethical principles governing research have been observed in the presentation of this article.

The examination of these three legal systems shows that although there are similarities between all three countries in examining the crime of adultery and rape; but there are also differences in the elements of the crime, the evidence of proof and the quality of adherence to it, as well as the punishment. These differences affect the scope and narrowness of the criminal responsibility of the perpetrators of these crimes. Due to the severity of punishment for the mentioned crimes, through this comparative study, suggestions have been made to amend the Islamic Penal Code of Iran.

The properties at the disposal of the universities can be divided into two groups: exclusive properties of the universities and properties that only their exploitation right are assigned to universities. Some university managers, citing the fact that according to the relevant laws and regulations, universities are exempt from the country's financial, administrative, and employment regulations, and that only the decisions of the Board of Trustees and the university's financial and transaction regulations are mandatory, have sold and transferred lands assigned to universities, which are part of the second group of properties, to university faculty, staff, and ordinary individuals. According to Article 69 of the Law on the Regulation of Some Financial Regulations of the Government, the judgment of the Administrative Justice Court involving an important decisions on matters of principle, administrative procedure and judicial decisions, only the exploitation right of these lands has been assigned to universities, and the ownership belongs to the government. Therefore, these actions by university managers are beyond their authority and contrary to the law, and the transfer and sale of these lands are not possible.

Among the most important assassinations in Iran, we can mention the assassination of General Qassem Soleimani and Martyr Fakhrizadeh. The mentioned assassinations are important in the sense that, firstly, the martyrdom of Sardar Soleimani took place in the territory of a foreign country, along with the violation of that country's privacy; Secondly, in the assassination of Shahid Fakhrizadeh, the latest war methods have been used. In this article, firstly, the definition, conditions and basics of targeted killing and the alleged justifications for the assassination of martyrs Soleimani and Fakhrizadeh and finally the legitimacy of the assassination of these martyrs have been discussed and investigated. This research is of a theoretical type and the research method is descriptive-analytical and the method of collecting information is library-based and was done by referring to documents, books and articles.The assassination of the mentioned martyrs did not comply with the prohibition of assassination in the executive order of the American president and there was no reason to insist on assassination due to the absence of an immediate and imminent threat. The targeted killing of General Qassem Soleimani was considered a violation of the sovereignty of the Iraqi state and, due to the absence of armed conflict, it was contrary to international laws; As a result, it is impossible to invoke self-defense in these assassinations.

 A rape by force or threatening is punishable by capital punishment in Islamic criminal code 1392 . and other situation such as sexual intercourse under seduction, threat, abduction, sleeping, drunkenness and anesthesia are joined to it as well. Necessitating a woman by a man in order to sexual relationship and subsequent abuse of this relationship for other next ones ignored by legislator. Different interpretations such as referring to article 167 of the constitution, narrow interpretation or interpretation in b half of accused , priority deduction and deduction by which reason of law can be perceived, have been dealt with (examined) In this paper and ultimately , abandoning characteristics of cases mentioned in law and by decisive capturing of criteria of law and inference the reason of the principle i.e. reluctant of woman in all cases , causing necessity for woman with regard to sentencing can be joined to the rape.

According to thin skull rule in common law accused must take his victim as he finds him. This accepted by Iran and common law legal system with respect to child, old and who suffers from physical and mental disorder so that their weakness is considered in the imputation of bodily harms to accused. It means that accused must consider his victim’s voluntarily and involuntarily reaction. This rule is accepted just about by two law systems in the scope of automatic physical act and psychological reactions of victim and even on the ground of necessity or duress. But in the case of the victim’s unreasonable voluntarily reactions resulted from his or her belief, the rule has been accepted in Blaue1975, nevertheless it was subsequently interpreted differently by lawyers. In Iran law according to Islamic jurisprudence and positive law the imputation of the result to the accused in this situation is doubtful and can not be accepted.

Multiplicity of crimes is one of the aggravated factors for punishment. In the Islamic Penal Code passed in 2013, has intensified the punishment of the person who committed several first to sixth degree crimes that its result is the execution of the most severe punishment from numerous convictions. On the other hand, the legislator did not predict intensification of punishment in seventh- and eighth-degree crimes and predict the rule of summation of punishments in the both degrees. Also, the punishment of accessary in one to two degrees lower than the punishment for the committed crime. If a person assists in two or more fifth- or lower-degrees crimes, his punishment increase from the main perpetrator. So, the purpose of this article is checking the objectives that the punishment of accessary is more severe than the main perpetrator. In this article at first, we investigate the articles about multiplicity of crimes and assistance in crime and different assumptions in the degrees of custodial crimes. Also, we explore the consultative theories in this issue. At the end the result is when check the procedural unity votes and consultative theories that have common criteria with this issue and according to priority analogy, we conclude that the punishment of the crime assistant cannot be more intense than the main perpetrator. Also, the justice and fairness confirm the theory. However, there is legal objection in this context and the only solution is correction of related articles in the Islamic Penal Code.

Collusion is a crime whose material and spiritual elements are controversial and sometimes seem impossible, some thinkers even believe that collusion is an exception in which mere criminal thought is punished without a material element. While based on the research findings, it can be claimed that the material element of collusion is in fact the implementation of the agreement and its spiritual element is the intention to implement that agreement. Collusion with different titles such as committing a crime, assisting in a crime, barren and impossible crime, are different and have different effects. In the criminal law of Afghanistan and Iran, collusion has been criminalized with slight differences in different areas. Despite the similarities between the criminal laws of the two countries in the field of legislation, there are also differences in the type of crime, the conditions of its realization and the application of punishment, which are studied in this article in a descriptive-analytical manner.

After passing the amendment of Article 157 of the Constitution in 1989 and designating one person as the head of the judiciary (instead of the Council of Judiciary), one important challenge was the judicial competence of the head of the judiciary which had proponents and opponents at the time. However after passing Article 157 the Consultative Assembly passed laws that accredited the judicial competence of the head of the judiciary. This approach led to the passing of Article 477 of the Criminal Procedure Code. By studying the negotiations of the constitutional council. This paper aims to find the intention of the constitutional legislator about the existence or lack thereof the judicial competence of the head of the judiciary and then, process the laws passed by the Consultative Assembly in the light of the approach of the Constitution in order to evaluate Article 477 of the Criminal Procedure Code as the lastest law on the competence of the the head of the judiciary. Based  on the legislative process and comments by the Guardian Council we concluded that despite the lack of the judicial competence of the head of the judiciary in Constitution, the Consultative Assembly contrary to text and spirit of Constitution and without functional justification, gave judicial competence to the head of the judiciary.

 Conflict of legal evidence is one of the most serious issues in the law.The legislator is unable to provide a complete rule despite of careful attention and predict all the things that happen in the future;so conflict may occur in their laws and their materials.conflict of laws, leads to chaos issuance of verdicts,absence of  the justice and fairness and confusion of judges.the Conflict of law belong to the process of legislation and it may occur between laws at the one level or at hierarchical orders. Another genus of conflict may happen between common law and canon law. therefore, the jurists have sought to find a solution to solve this problem. in this study,after analyzing multiple books and articles and also with detailed study of the unanimity of policy unity, consultative theories, judicial meetings, are trying to explain different forms of conflict and the criteria to solve it; especially in the case of criminal law that is to balance the balance between individual rights and public security. therefore, the importance of this issue is obvious in creates a fair order and prevents the imposition of different tastes.

Legitimate defense is cited as a justificatory condition if the existence of multiple conditions can be ascertained, including imminence of attack as well as the necessity and proportionality of the defensive action, thus permitting the apparently criminal behavior. However, individuals in certain cases might resort to specific defensive instruments and tools, i.e. the human traps, such as booby traps, digging wells inside their houses, or keeping guard dogs, in an effort to defend their rights against possible aggressions. As a result of using such devices, the persons venturing into such places might be harmed or injured. The legitimacy of such actions per se as well as the responsibility of the injuries they might cause requires legal scrutiny. In the present article, we investigated this subject with due regard to the relevant statutes as well as Jurisprudential bases and concluded that deploying such devices by the defender in the land which has right of possession is per se not legally prohibited, provided that such devices are not outside what is regarded as customary. However, the perpetrator shall be responsible for any injuries and damages resulting from using such devices unless it can be proved (through establishing the relevant conditions such as necessity of the action) that such injuries and damages were inflicted in self defense. In this regard, a comparative study with other legal systems was also conducted.