abdolali tavajohi

Part of IMAM Ali is teachings provide for elements of criminal policy and contain ideas and special measures against criminal phenomena.One of this elements is, criminalization behaviors and determination of punishment for reducing and control of criminal phenomena.In this article according to resources of the books we showed and used descriptive and analytical methods for considering criteria interfering behaviors criminalized in Alavia teachings.This research was shown that unsociable behaviors against five

life, money, descent, wisdom and religion, has a reprimand ability, so interfering is necessity penal in these cases are undeniable, thus these aforesaid objectives are so essential policy, criminalization of incompatible and adverse behavior against five objects is way for reducing and controlling crimes on the light of criminalization rulers.Besides if there are other methods against crime excepting punishment, resorting to punishment is not correct and punishment has minimum use and is last way for using.

Today, as a result of the progress of medical science as a special custom in the diagnosis of living human beings, different views have emerged regarding the common custom and traditional beliefs. The result of this issue is the recognition of human life and death; Because if we believe that death occurs due to the stopping of the heartbeat, it does not include the cases caused by the stopping of brain activity, and the basis and difference of views regarding the change of life and death of humans is not believing in any of these theories. Nevertheless, people with stable plant life conditions need attention and drafting protective laws to protect the rights of these people, and society's perception of whether these people are alive or dead will bring legal and criminal effects and judgments for them. . And it seems that these people are considered living human beings and benefit from all the rights of living human beings. This article aims to examine the jurisprudential solutions regarding plant life and to clear some ambiguities regarding the concept of plant life. For this purpose, in order to avoid different interpretations and grievances, as well as to create supportive-social conditions, we need to formulate laws and enter support organizations to protect the rights of people with vegetative life as best as possible.

public hearing Instead of having a one-dimensional nature, has a composite structure that can be divided into different elements, and even with the absence of one of these elements, its true meaning is overshadowed. In the international human rights system, often specific mechanisms are established through human rights monitoring institutions such as the European Court, the American Court and the Human Rights Committee to monitor and protect the right to public hearing and closely monitor its implementation in national courts, and through the handling of cases raised in these institutions, several components have been defined for the structure of public hearing. This article with the aim of examining these components, seeks to answer this question: To what extent do the concept, nature and elements of public hearing in Iranian criminal proceeding system comply with the standards accepted by the international human rights system? In this regard, the current research, with a descriptive-analytical approach and by using library resources, describes the position of the discussed subject in a comparative manner in these two systems. The comparison of this issue in the international human rights system and the Iranian criminal proceeding system shows that, Although the public hearing has been recognized as a fundamental principle of Iran's constitution, its implementation in the country's legislative and judicial systems requiring not only that the legislator stipulates some components of the public hearing which have been neglected so far, but also meet the executive and practical challenges of criminal court proceedings.

Review :Legislator in Islamic Penal Code Approved 1392 For the first time in a separate and coherent discussion Accepts the sentences of repentance to the Limits and Ta'zir Has accepted Which has at times pointed out the role of time in repentance . Article 114 penalizes punishment before proving a crime and sometimes before arrest or Muscat's mastery of the punishment is punishable And if so Through the proving of the crime of confession Repentance, even after proof, is also considered effective in amnesty. And Article 118 states that the time for presenting a reason for repentance is wider. But it has raised some theoretical and practical questions and questions: How long is the time for repentance after the crime has been proven? Is the requirement of time for repentance also valid in other types of punishment? can Time lapse be a reason or an apology for repentance? This article attempts to study the role of time in the penal penitentiary from the jurisprudential and legal aspects.KEYWORDS: Time for repentance؛ Time to prove ؛ Time lapse ؛ Amnesty؛ Falling penalty .

Under the article 417 of the penal code of Iran (1392), the authorization of the supreme leader or his representative in the execution of Qiṣāṣ (Arabic: قصاص, Retribution) is essential. Although there has been counted many proofs and several principles for the obligation of the authorization of the Guardianship (wali al-amr) in Qiṣāṣ but the continuation (Prolongation) of the procedure in the stage of the authorization results the effects such as the fear for the escape of the condemned prisoners to Qiṣāṣ and the enhancement of the amount of diya or Diyah (Arabic: دیه, A compensation payment to the victim or heirs of a victim -the guardian of the blood-) in the cases of the obligatory of the payment of the difference by the guardian of the blood in order to choose Qiṣāṣ. The important effect of the deprivation of liberty of the convicted to Qiṣāṣ until the pronouncement of the authorized official has a general aspect and whether in the stage of requesting for authorization it is accepted Qiṣāṣ or whether it is not approved, it is inevitable. In this paper with analytic-descriptive method, it has been studied the legal and jurisprudential examination of the imprisonment of the convicted in the stage of the requesting for authorization. The result shows that such imprisonment is incompatible with what have been determined in Islamic law texts about Qiṣāṣ, Diyah or amnesty for prisoners convicted of intentional crimes and the imprisonment of the convicted which is the imposition of another multiplication of the punishment is not permitted. There is no specific reason for the legality of the deprivation of liberty of the convicted to Qiṣāṣ. With paying attention to these outcomes, it is necessary to legitimate the time for requesting for authorization and to be reduced. If it is obligation to imprison the murderer for the society’s interest and consequently, the Qiṣāṣ is implemented, it will be necessary to be provided fair compensation.

Trial in intentional and unintentional crimes is one of the most multifaceted issues in criminal law and Forensic medicine, as well as the involvement of causes that ascend from the characteristics of the culprit and within the committer and as grounds. They reproduce this complexity in terms of their attendance or absence of interconnection and how they disturb it. This article deals with the trials facing criminal law and forensic medicine in relation to the grounds intricate in the crime and in view of the importance and obligation of the issue in terms of disagreement about the role of the grounds in the judicial process. This article aims to provide an appropriate prototypical of how the context plays the role while investigating some of the sentiments related to the context.

This descriptive-analytical article has been equipped and compiled by means of the documentary method and using the note tool.

The findings designate that; The underlying cause with the proficient opinion of forensic physicians along with the foreman or other causes can be elevated by playing a creative role in achieving the criminal consequence, but in most cases the fundamental cause is hurrying, accelerating or escalating the effect of the foremanchr('39')s act or other It is a cause and in such cases the submission of the title to the existing setting and the fortitude of the share as a result is not adequate, but it can be considered along with the steward or other causes for it, although some legal systems By completely vacating the role of the underlying cause, they do not subsidize to this cause under any circumstances.

Ethical considerations:

From the commencement to the end of the article has been equipped and compiled with adherence to the values of honesty and reliability.

In view of the silence of the law in the Iranian legal system and on the other hand the lack of obvious jurisprudential rules on the role and consequence of the underlying causes, in exploratory the judicial procedure of Iranian criminal courts, on the one hand we see divergence of opinions that some courts , Have not accepted the effect of the underlying cause and others, based on forensic concepts, have accepted that in many cases the jurisprudence has accepted the role and share for the underlying cause which only had an aggravating or accelerating role in the crime. Have diverged from the path of fairness and justice and the adherence of the principle of fairness of persons, and it is necessary for the legislator to enact the essential laws and take advantage of medical advances in this regard, while culmination the fragmentation of judicial technique, the rule of thin skull Which is putative in most legal systems, in order to protect the scrawnier and more justified cause.

Since retribution is a non-financial right, and each right has different effects such as resignation, abrogation, transfer, etc., talking about the possibility of realization or non-realization of transferring the right of retribution is the main question of this article. That the claimants of the right of retribution have the opportunity to manifest all the effects of the right or they can only seek retribution is something that needs research. Many jurisprudential and legal sources regarding the development of the authority in the form of transferring of the right of retribution have not considered it as among their authority, whereas some of these sources have implicitly considered its possibility. By researching and examining the transferability, it can be realized that since it causes the right of retribution in a contingent manner and its consistency is not dependent upon the claimant of blood, some effects of the right, such as transferability, are entailed thereby.

Developments in medical science and in the dimensions of human life in different decades of social relations, Economic, cultural, artistic, etc. are very complex and full of phenomena Innovative innovations have been made in the field of medicine. These developments have made a significant contribution to the benefit of the opinion of specialist physicians as experts in criminal matters and the establishment of a factor in the crime. Our aim in this study is to examine medical developments and medical advances in the field of assistance to criminal judges as an expert theory in crime.

The research method in this article is descriptive-analytical and library method.

The findings indicate that in many specific cases regarding the causal relationship in crime in terms of specific circumstances and nature of the possibility of judicial review requires the opinion of experts and specialized and reliable physicians so that judges can be confident. To issue more just sentences.

 From the beginning to the end of the article, the principle of honesty and trustworthiness has been observed.

The opinion of experts and medical experts in the courts and dispute resolution makes the judicial decisions have more support and can provide the best possible basis for justice, and therefore referring cases to an expert is of special importance and necessity. The authority and validity of the expert opinion in the evidence should be examined.

Eruption tooth of victim of crime before and after retaliation is one of issues concern to crime on teeth that Imamiyah Jurists express various theories about it. Hereupon, legislator has adopted two different attitudes in articles 413 and 415 Islamic Penal Code Act 1392.  According to article 413 eruption tooth before retaliation caused that retaliation not enforcement and condemn criminal to paying Arsh[PB1] [PB2]  and based on article 415 eruption tooth after retaliation entail not responsibility for victim of crime. Whereas juristic opinion – Fatwa - that considered as criteria is equal in them and it necessitate above – mentioned articles to be consistent. This research that writed through a descriptive – analytic method, disregard to contradict one of mentioned articles to criteria juristic opinion, consequently to be necessary it reform.

Regarding that retaliation (qisas) is one of the reactions and punishments which Islam has considered as a sanction for the right to life, so it requires many research topics. One of these topics is substitution and replacement of this punishment. According to the above mentioned, and also considering that retaliation (qisas) is affected the society, it is very necessary to regard this fact in order to secure relief sought of avengers of blood. In this article we face with these basic questions which are as follow: which kinds of authorities does the owner of the right to retaliation (qisas) have? Whether he or she can make any decision about it under the title of substitution, or the punishment of retaliation (qisas) has relevance and except in appointed cases, there isn’t the possibility of its substitution even with consent of the parties?    Assuming the acceptance of substitution of retaliation (gisas) punishment, relying on the institution of substitution in discretionary punishments, we can say that in order to substitute the retaliation (qisas) to other punishments, lighter punishments should be applied. In this article, especially we point at the case that based on it, the execution of retaliation (qisas) is impossible and we come to this conclusion that, the substitution of retaliation (qisas) to other applicabilities of punishments the same as blood money, whether it be according to the opinion of competent authority or it be in accord with and based on mutual consent with murderer, has different forms.

One of the issues related to criminal responsibility and the principle of its individuality is the criminal responsibility arising from the other’s behavior that legislator has referred it as criminal responsibility arising from other’s behavior in 142 article of Islamic Penal Law of 2013. This means that the criminal responsibility is on a person who has not committed the crime, but is known responsible and punished due to specific conditions and based on the legislator's discretion. Before approving this law, the examples of this responsibility had been referred discretely in some laws. There is a concept called criminal responsibility of superiors (commander-ship) in the international documents that whereby military commanders or superiors are known responsible for crimes that were committed by forces under their command or control, in the lack of necessary control of their subordinates. This is one of the important issues in international criminal law and there are several reasons for its justification includes criminal responsibility arising from other’s behavior. Accordingly, a separate study of each of these concepts and identification of their relationship is important, which is discussed in the present research through study theoretic principles and refer to regulations, texts and other documents. According to results in this study, criminal responsibility of superiors can be similar criminal liability arising from other’s behavior in the internal law.

One of important subjects and issues discussed in medical sciences that caused occurrence of new legal and jurisprudence issues in the society is sex reassignment surgery (SRS). Although in the past these discussions existed more or less. However, nowadays due to technological progress and medical science achievements, new aspects of this subject have emerged. Despite different views concerning sex reassignment surgery (SRS) permission, famous jurisprudents have in principle accepted the act of sex reassignment surgery (SRS) as such, if it is required and necessary and based on medical prognosis. In this article, the penal effects of sex reassignment surgery (SRS) in retribution (including breath and organ retribution) on condition of offender and victim of an offence, regarding issues of a verdict and execution of punishment are considered. This is a descriptive and analytical study, and the method of gathering data is analytical research through library for gathering contents by taking notes. Also in the mean time, attending in person the Office of Social Victims Affairs of Welfare Organization of the country, National Forensic Medicine Organization, Institute for Criminal Sciences and Criminology Research, Faculty of Law and Political Science of Tehran University, and also for obtaining relevant religious decree from great references personal visit were paid to their offices. Direct discussion were also made with lawyers and professors of law and religious jurisprudence and using their views were effective in advancing and enriching this research. In the case of sex reassignment surgery (SRS) is affected in regards to all medical standards updated and diagnosis of a medical expert, is conform to legal rules and principles of laws and is not in conflict with public order and good ethics. Thus, in the current Iranian legal system conditions and in regards to religious famous juridical documentation, sex reassignment surgery (SRS)’s applying all orders and its penal effects in retribution case (including breath and organ retribution), applying issue of a legal order and execution of punishment to offender and victim of an offence will be according to their previous sex. While considering the necessities of medical treatment of transgender people in accordance with recognized opinion and the necessity of treatment of these individuals and determination of their true gender, the legal and penal laws and regulations, which should be applied to their former gender, shall be considered.

Imprisonment is one of most severe punishments, which is the sanction of many of crimes in both England and Iran law. There exist some rules in England law for Imprisonment Sentencing, however there are not in Iran law. Iranian legislator has not anticipated any systematic, distinguished framework for the Imprisonment Sentencing. The rules of Imprisonment Sentencing in penalization stage contains of "Necessity of determining Imprisonment just for the serious crimes" with paying attention to the "Necessity of public protection", and in justice process, it includes the "principle of Impose Imprisonment just for dangerous criminals". Accordingly, this punishment should be determined just for dangerous criminals and for serious crimes, and just it is Necessary of public protection. Clasyfing the rules of Imprisonment determining and Sentencing in Iran requires definition of the specific structures to punishment determination and codification of laws that elaborates the status of the Imprisonment in the punishments category.

Murder and intentional injury are punished by Qisas. One of the conditions of executing qisas is lack of paternity. Accordingly, a murderer is not retaliated where he is father of his victim. Traditional documentaries and renown legal opinions which are raised on this case by the Shiite and Sunni groups, make the legislator consider the mentioned condition in the article 301, Islamic penal code of 2014.A father that murders his offspring, is not absolutely taken in retaliation in accordance with absoluteness of the Shiite Jurist`s words and text of law. This is while that according to some jurists`s opinions, retaliation is executed on a father where he murders his child with malice aforethought or motives such as hostility and greed.
In this paper, based on a descriptive-analytical method and connected narrations, it is resulted that annulling qisas of father is a general and absolute legal commandment, and limiting it to some situations such as killing with malice aforethought, necessitates abandoning the traditions. At the same time, it proves that such an legal precept is especial for father, and it does not apply to mother, grandfather and grandmother at all.

In Islamic law if urinary and fecal incontinence were the results of two felonies, the compensation would be two. But in one single felony, most of scholars believe one compensation is enough not two, and this is just due to one hadith about it. Since it is not supported by medical studies, alterations or heresy and..., it cannot stand against the rule of non-combination of the causes and so the two-compensation idea in one felony seem validated and stable. In this article we will discuss different opinions to prove what the exact and valid idea of Islam is.

Imprisonment of religious thinking generally not considered a major penalty، but as an example of chastising، Security and Training is mostly correct، deter and prevent the recurrence of crime. Imprisonment as a means to stave off the threat of Islamic jurisprudence as well as some people in the community as well. Using large-scale copying the prison system and the prison sentences to punish the West and interchangeability in many cases the possibility of substitution exists in Islam is incompatible with the philosophy and criminal penalties. The use of punishment and negative freedom، the need to protect society against dangerous criminals، and in the event of a serious crime، and in another sense، it is expedient that the best interests of society and the philosophy of punishment in Islam. The use of prison، in exceptional cases and for certain offenders، prison is actually a response to those fans who are looking for a solution to deal with repeat offenders are dangerous and crime in the society. The use of imprisonment as a «last resort» and resorting to alternative economic sanctions on a large scale not only ensures the safety of the community، but also obligations concerning human rights-human dignity، dramatically reducing the cost of criminal justice.

In view of renowned jurists, concealing defects are considered as the only reason which permits marriage dissolution. In fact they have recognized the following three stipulations: option of defect, unfulfilled condition and concealing defects (deceit) for the termination of the marriage contract. While jurisprudents believe the concealing defect is not the only condition for marriage desolation. Upon searching for the right theory for marriage dissolution the writer while reviewing the view of both groups by citing tradition and logical principle has come to a conclusion that concealing defect alone cant be the mere reason for the annulment of marriage contract and it is solely the explicit defect cited in tradition and unfulfilled conditions that may lead to the nullification of marriage contract. In case of concealing defect if the deceiver is accused of fraudulence and deceit, he/she has to face penalty and civil punishment.

Detection of the truth has been ever one of the important concerns of scientists in the sciences related to judicial issues. In penal problems، to detect the truth، the evidences are resorted which are referred to as proof evidences. These evidences or in other word their queen is confession. The confession as the queen of evidences has special position in Islamic judicial context. In penal law of Islam، the proving value of this evidence for proving the crime is different depending on various crimes and the same difference and attempting for detection of legislator’s opinion has been changed to the battlefield of judges among the jurists. In this paper، we try to respect the jurists style for raising and criticizing the theories and analyze and answer this fundamental and important question “if the benchmark in Islamic penal is related to sufficiency of one time confession or number of confessions? Upon verification of evidences and terms of jurists in all contexts، it is cleared that in some punishments، a specific number has been determined for frequency of confession، and in some other، one time confession based on rule is sufficient. Whereas the punishments are different from each other، we may not extend evidence raised for frequency of confession in a specific punishment، to the other cases.

There are two kinds of penal policies: justice oriented and the other security / enemy oriented penal policy. However the limitation ofindividual responsibilities and not interfering in their private life are fundamental, in some late decades could be said security orientated criminal law formed by more governmental interfere and also expansion of person responsibility albeit authority of security is their excuse but its cost is human rights elimination and feeling of security is not visible. It means this penal policy has not been successful considerably.