جستجوی مقالات مرتبط با کلیدواژه "اصل استصحاب" در نشریات گروه "فقه و حقوق"

According to the Islamic criminal law, it is necessary for the perpetrator to be an offender and to have criminal liability in the presence of conditions and elements including the condition stipulated in the Article 140 of the Islamic Penal Code, approved in 1392. Based on this Article, the perpetrator should be wise and mature. What is important in this regard is the question as to what is the ruling if we doubt whether a person is wise or mature during a crime? Some of the jurisprudents, knowing that the rule of Dar̕ is applicable to the Qisas, hold that there should be no retaliation, and some others hold that the rule of Dar̕  is specific to the crimes with prescribed punishments (Had). They have set the principle of istishab as the criterion of action, however they have also different ruling by reasoning to the principle of istishab. The authors have used a descriptive-analytical method in the present research. Not generalizing the principle of Dar ̕to Qisas, they took an approach to the viewpoint of Imam Khomeini and relying on the principle of istishab, in the case of doubt in the criminal maturity they absolutely believe in the precedence of the word of the criminal. And in the case of doubt in the criminal madness, if his/her insanity is evident from the very beginning of his birth, they absolutely believe in the precedence of the word of the criminal, but in the case when his/her insanity is accidental and only the date of the murder turns out to be promising, the word of his/her guardian is precedent and in other cases the word of the criminal is precedent. If the criminal does not have a history of insanity, the word of his/her guardian is precedent.

Iranian Legislature has recognized the rule of darʼ (not enforcing punishments (ḥudūd) in cases of doubt) in articles 120, 121 of the Islamic penal code (1392) and has removed any criminality, responsibility and punishment due to this rule in doubtful cases. However, the legislature in other articles of this code, especially the articles 307, 308, 311, 114 ,115 has passed regulations on the basis of istiṣḥāb principle (legal presumption of continuity of the status quo in doubtful cases), some of which contrast with the necessities of darʼ rule, such as considering the crime intentional at the time of doubt about the perpetrator’s not having free will while committing the crime, providing retaliation for the perpetrator at the time of doubt about his insanity while committing the crime and considering the criminal entitled to punishment at the time of doubt about his repentance before the crime is proved. This article analyses these contradictory regulations and their resolutions.