جستجوی مقالات مرتبط با کلیدواژه « دیه.‏ » در نشریات گروه « فقه و حقوق »

In intentional murder, the killer does not have any authority in determining and choosing the punishment of retribution or unconditional pardon, but does he have any authority regarding the determination of bloodmoney, or does he have the right to make a decision and express an opinion in the process of converting qisas into bloodmoney? The majority of jurists, except in special cases that require the payment of excess money or the death of the murderer while fleeing, are of the latter theory and this theory is reflected in Article 359 of the Islamic Penal Code, but it seems that despite the fame of the jurist, by re-reading the jurisprudential arguments and especially the arguments which have been neglected by the majority of jurisprudents until now, we can criticize the opinion of the famous jurist and invalidate the consent of the murderer in converting retribution into bloodmoney. In this regard, this article seeks to prove the "theory of imposition of bloodmoney on him" in intentional murder with a comparative reading of the theory of the killer's discretion in accepting or not accepting bloodmoney. Therefore, this writing is looking for a new reading of the role of the killer's consent in turning retribution into bloodmoney, citing authentic legal sources and valid jurisprudential-legal ideas. The result of proving the killer's lack of consent in this category is to solve the conflicts of the articles of the Islamic Penal Code in the context of the heterogeneity of the effect of the killer's consent in the process of converting retribution into money, harmony with the Shariah's taste in encouraging forgiveness while maintaining the deterrent feature of criminal reactions, non-revocation of Muslim blood, etc.

The legislator's approach in all regulations related to intentional murder in the Islamic Penal Code has been that the right of retaliation for the heirs of the victim is a definitive right, and receiving Diyya (blood money) is only possible with the consent of the killer. Although the choice and acceptance of the definitive view was due to its popularity, its acceptance led to the abuse of some murderers in some cases of murder, such as the execution of retribution in cases of paying excess Diyya, and the waste of the victim's blood. These reasons led to a change in the position of the legislator in the 1392 Penal Code. In this change of approach, the definitive theory was accepted as a principle in intentional murder, and to solve practical problems in cases where the retributionof the killer was conditional on the payment of excess Diyya by the heirs, the optional theory was accepted. This is because sometimes the heirs were not able to pay the excess Diyya, and the killer was not willing to compromise. Since according to the definitive view, it is not possible to receive Diyya without the consent of the killer, the blood of the victim was at risk of being wasted. Now, the legislator has been criticized for accepting the optional view and following the less well-known opinion and basing it on it. This research has concluded that adopting a dual view based on the narrations and the rule of "La Yabtol" is free from any difficulty in order to prevent the waste of Muslim blood.

The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some examples in the codified criminal law and jurisprudence texts. This article attempts to re-examine the issue by presenting new analysis while critically studying the existing views. According to the famous Imami view, this agreement is not permissible and the right of qisas remains with the termination of the agreed organ. Therefore, it is necessary to pay the dues of the similar organs that have been cut off.The reasons of the famous view are as follows: the non-realization of the originality, the irreconcilability of the blood issue, the principle of non-substitution, the non-inclusion of the rule of body integrity, and the inclusion of the obligation of qisas in the original place. Indeed, due to the invalidity of the said agreement, according to the famous view, the left hand exchange (i.e. the fall of revenge from the right hand) has not been realized and on the other hand, the same exchange (left hand) has also been cut off.According to the second view, agreeing to amputate a similar limb instead of the main limb causes the right of qisas to fall and turn it into ransom. In such cases, on the one hand, the victim is entitled to receive diya for his right hand, and on the other, due to the amputation of  criminal's left hand, he is required to pay diya. In fact, agreeing on left-handed qisas instead of right-handed qisas is like forgiving the victim of right-handed qisas in exchange for left-handed qisas. Of course, it should be maintained that victim with left-handed who agreed on qisas has abandoned right-handed qisas, not that he has turned it into diya since if his goal was to receive the diya for his right hand, he could demand it from the criminal, and there was no need for the agreed qisas of the left hand.According to the third point of view, in practice, there is an exchange between the place of qisas and its similar organ, and the similar organ replaces the retaliated organ, which will result in the fall of the victim's right of qisas. The evidence of the third view are the implied amnesty of the agreement, the possibility of a change in the organ's qisas and reference to the rules of harmlessness and exclusion.The present article, with a descriptive and analytical method, while critically examining the jurisprudential foundations of the mentioned viewpoints and giving a reasoned preference to the promise of deserving punishment as a result of the agreed qisas of the similar organ, believes that such agreements and compromises can be based on. He considered it to be correct and legitimate and considered its provisions to be enforceable. In this regard, while studying the sayings and proofs of the jurists, by presenting proofs beyond the documents that have been presented for the third point of view, this opinion has been strengthened, the proofs of the illegitimacy of the agreement on the same organ's reparations are also disputed.The pieces evidence of the selected point of view are as follows:Analyzing the issue based on the aspect of the right of qisasThe basic rule in law is that the authority is in the hands of the right holder, and transferability, revocation, compromise, pardon, and forgiveness are among its accessories. So, first of all, since revenge is a special right of the victim, then it must be possible to judge the legitimacy of such an agreement. Secondly, considering the fact that the tortfeasor, even for free, can waive his right, then as a priority, he will be able to waive his right of qisas by agreeing to the qisas of the similar organ. Thirdly, due to the personal nature of the right to qisas in crimes against the soul, it is not possible to execute qisas without demanding compensation from the victim. Therefore, ruling to invalidate the agreement and re-implementation of qisas is contrary to this Muslim rule.Analyzing the problem in terms of substantive similarityBased on numerous pieces of evidence, there is a balance between the interests and functions of similar organs; which can be cited in order to prove the legitimacy of the aforementioned agreement.Applying the verse of qisas; From the honorable verse "Write down against them, that the soul is in the soul and the eye is in the eye and..." (Ma'idah/45), which explains the law of execution of qisas due to the necessity of similarity, it can be used that the paired body parts that are opposite each other and the ruling of qisas. They are exported, regardless of the right and left, they are considered similar to each other.Habib Sajestani's narration from Imam Baqir (a.s.): "Regarding the rights of Muslims, where a person has a hand, the hand should be placed against the hand..."Homogenization of similar organs in the verse; The chapters on limb amputation are used in the works of jurists, whose view of similar limbs is almost likeness and ruling on punishment of left hand in case of lack of right hand, based on this basis.From the point of view of custom, the organs of the pair are considered similar, and characteristics such as right and left are not considered by custom.Problem analysis based on the philosophy of qisas; The main purpose of the law is to legislate qisas punishment, deterrence, providing security and life of the society and healing the wounded feelings of the victim and the society. It seems that both of the aforementioned goals can be achieved with the agreement of similar organs.Arrange rational purpose for agreement.First: It is possible that rational and valuable effects and benefits will be obtained from the said agreement. Secondly: It is possible that the motive of benevolence is also desired in the qisas of the similar organ.Requirement of No Harm and The Dar'e RulesThe verdict of non- qisas ultimately leads to the qisas of two life organs for one victim. Therefore, referring to the harmless rule, the fall of the right of qisas against the victim is explained.Also, the rule of Dar'e, also includes qisas, and with the qisas of a similar organ, the legitimacy of re-implementation of qisas is questioned, the fall of the right of qisas seems more appropriate.Legal evidencesAlthough the legislature of Iran has not explicitly commented on this matter, according to the articles 347, 361, 363 and 365 of the Islamic Penal Code, conciliation and agreeability of the right of qisas, in each of the stages of prosecution, proceedings and execution, has clearly accepted and considered the right of qisas to fall and the hypothesis of this article is confirmed.

Article 639 Q.A. According to the well-known Imami jurists, in case of amputation of the hand from the forearm or arm (and with the same criteria for amputation of the leg from the leg or thigh), in addition to half of the full payment, in the excess amount, Arsh is also fixed. has known by examining jurisprudential writings, there are two other views on the assumption of the problem. In a fundamental research and by adopting the descriptive-analytical method, the present essay investigated the existing views and found the popular view to have weaknesses and flaws; On the other hand, there is another point of view on the issue that has been able to attract a significant number of contemporaries. This point of view believes that in the assumption of the problem, only half of the full dowry has been put on the diya and no more Arsh will be given to the victim. According to the authors of this article, this point of view can be the basis of the legislator's action due to its well-documented evidence. The results of the present research, in line with the above-mentioned theory, indicate that the reference to the use of the word iodine as well as the use and inclusion of the word “rejl” can strengthen the above-mentioned point of view; Therefore, it can be said that hand is a noun for all members and foot is also a noun for all members and the common understanding is that each of these members is called hand or foot; Therefore, it is sufficient to prove the payment and the determination of Arsh does not seem justified.

This article provides a critical analysis of Note 2 of Article 14 of the Iranian Code of Criminal Procedure, adopted in 1392 SH/ 2014 CE, which vindicates the victim’s right to both blood money (diya) and civil compensation. The purpose of this study is to determine the scope of the above-mentioned Article and of the legality of the claim to financial and non-financial damages resulting from bodily injuries on top of the blood money. The research method is descriptive-analytical, and the data was collected in library method, with emphasis on the analysis and interpretation of legal texts, Islamic legal views and the opinions of legal scholars.The answer to the question of whether the victim in bodily injuries can claim, in addition to blood money, the financial and non-financial damages stemmed from physical injuries or he is only entitled to receive blood money and is deprived of the right to receive any other type of damages depends, to some extent, on the rationale behind the blood money rule and on its subject and territory. It is, however, controversial among Islamic jurists, Imamis and Sunnis alike, Iranian Judicial opinions, and in the legal literature of Iran and other Islamic countries what kind of damages diya is intended to cover and whether or not it is compatible with financial and non-financial damages. In fact, the divergence over this issue in Iran, like some other Islamic countries, have reached its peak in recent years.Nevertheless, a closer examination of the sources from which the blood money rule is derived, in particular the authentic tradition (hadith) of Ghiyath, the Qur’anic verse "We have given dignity to human beings" (17-70), the Islamic jurists’ opinions holding blood money as an indemnity for a human being’s soul or member (especially some explicit rulings by contemporary Imami and Sunni jurists), as well as the inherent equality of the value of people’s lives and bodies regardless of their social statuses, skills, education, and ages, indicate that blood money in the Islamic legal system is merely to compensate for the loss of life, organs, or their abilities and has nothing to do with material and spiritual damage caused by personal injury.Hence, the financial losses resulting from bodily harm can be claimed in addition to the blood money and according to the general rules of civil liability, regardless of whether their amount is less or more than the blood money. Even if this view is not accepted, the sources on which the blood money rule is premised do not imply more than that the financial losses that were used to commonly result from personal injury in the early days of Islam, such as the costs of basic and simple treatment and the lost income, only to the extent of the average income of an ordinary worker, are included in the blood money. Damages beyond that, like the costs of today's complex surgeries are thus not covered by blood money and should be compensated independently.Also, spiritual damages caused by physical injuries can be claimed independently of the blood money according to some Islamic jurists and legal authors, and based on the history of this rule and traditions pertaining to it. But even if this view is not accepted, although it is arguable that non-financial damages ordinarily caused by bodily harm, such as enduring pain or suffering or beauty defects within the reasonable limits, are included in the blood money and are compensated by paying the blood money, these damages should be compensated separately and in addition to the blood money if they exceed ordinary levels, especially if they reach the level of neurological and mental disorders, acute distress, depression, anxiety, severe physiological imbalance etc., even if the extent of loss is less than that blood money covers.Accordingly, Note 2 of Article 14 of the Code of Criminal Procedure, which prohibits claiming spiritual damages and possible lost profits (deprivation of the power to work) where blood money is payable or punishments stipulated in the sources (ta’zirat mansus) are to be inflicted will be objected in this article. The Note implies, on the other hand, that financial damages caused by personal injuries (except for the lost profits) will be compensable in addition to diya (blood money), which is an important evolution in the legal regime governing the collection of blood money and damages. In order to remedy the shortcomings of the rule stipulated in Note 2 and bring it in line with  principles of Islamic law and national legislative system, the Note can be taken to include only spiritual damages within the ordinary extent (which is to be determined by forensic experts) as well as lost possible profits in the reasonable sense (such as the loss of the wages of an unskilled worker subject to the Labor Code), whichis covered by diya (blood money) and thus cannot be claimed in addition to it. However, if the said damages exceed the usual limits, they are not incorporated in the blood money and can be claimed separately. Also, the impossibility of receiving blood money and the lost profits in crimes with stipulated punishments has no logical justifications or rational bases. Therefore, this study suggests the necessity of  amending Note 2 of Article 14 of the Code of Criminal Procedure based on the arguments here outlined.

Referring to religious texts like different parts of the narration of Dharif ibn Nasih, Imamiyyah jurists extracted a principle based on which the bone fracture of the organ having a definite blood money will have one-fifth of that organ's blood money if not recovered. If it is fully recovered, it will have four-twenty fifth of the blood money for that organ. This rule has been inserted in article 569 of the Islamic Penal Code, as well. Nevertheless, there are certain intricacies on the scope of the rule and its religious and jurisprudential evidence which makes it a challenging one to hold. A contemplation on the evidence of the rule for the blood money of fracture, on Imamiyyah jurists' articulation, reveals that the extraction of this rule from the tradition narrated from Dharif, given the different parts of this tradition, faces some serious challenges. Yet, this paper proves that if, due to any possible causes such as legislative requirements, we were to offer a rule concerning bone fractures, some other parts of the tradition narrated from Dharif can come to help and give us firm grounds to introduce a rule according to which the bone fracture of an organ with determined blood money, if recovered without flaw, will have one-fifth of that organ's blood money. If not recovered or in the case of incomplete recovery of the fracture, due to the lack of a religious determination, Arsh will be prescribed.

Researcher in the Iranian Law and Canon Research Centre, Head of the First Branch of Salehabad General Court and Head of the Salehabad Jurisdiction (Khorasan Razavi)In this regard, there are two general views on relevant articles in the Islamic Penal Code adopted in 2013, regarding the payment of blood money from the National Treasury in cases where the party inflicting an injury has fled without being identified. Some have considered the payment of blood money from the National Treasury in intentional felonies to be conditional on the identification of the perpetrator, while others hold the view that National Treasury has absolute responsibility for the mere occurrence of an intentional felony, even if the perpetrator is not identified.This disagreement in the courts led to two different inferences from the Act, finally leading the General board of the Supreme Court to get involved in this dispute and to practically end the existing conflict by making the binding precedent No. 790 dated 10/04/1399, and creating a uniform procedure in this regard.In this article, we shall review and evaluate the existing views and that of the binding precedent.

The legislator stipulates in the single article on therapeutic abortion that if a maternal illness or fetal illness occurs, therapeutic abortion will be possible with the approval of three specialist doctors and the mother's permission. However, the legal statement "abortion ... is permitted with the consent of the woman and the punishment and responsibility will not be on the attending physician" shows that only the permission of the mother for therapeutic abortion can relieve the responsibility of the abortion Diya (blood money) from the attending physician. However, the mentioned legislation is facing jurisprudential and legal conflicts since the permission of therapeutic abortion along with the irresponsibility of guaranteeing diya in Imamiyah jurisprudence is limited to the assumption of the mother's illness and saving the mother's life, not the assumption of the fetus's disease. In addition, according to the note of Article 718 of the Islamic Penal Code, the failure to prove the diya in a therapeutic abortion is subject to abortion for the mother's illness or saving the mother's life. However, "fetal disease" is recognized in the single article of therapeutic abortion is one of the abortion licenses, along with the irresponsibility of the attending physician. The present study uses a descriptive-analytical method to prove that the mother's consent in the case of "fetal disease" is not sufficient for the physician's irresponsibility to have an abortion and the irresponsibility of fetus's diya for the attending physician, also requires the permission of the fetus's father.

Based on the theory that says the retaliation (Qiṣaṣ( right is takhyīrī (choosing between two or more alternatives), the next of kin (Walī Dam) and victim are free to choose the retaliation or to ask for the blood money. On the other hand, proponents of the theory that says this right is absolute obligatoriness (taʻyīnī), believe that the next of kin and injured persons in intentional crimes do not have the right to demand blood money without criminal’s consent. Taʻyīnī theory, from the beginning, was made the basis of Islamic criminal law by the lawmaker of the Islamic Republic. However, because in practice, this theory is facing problems and negative consequences such as shed the murdered blood with impunity, in 1392/2013 the lawmaker, following some jurists, passed a law that in cases where the retaliation is conditional upon the rejection of blood money differentials (Faḍil), the next of kin do not have the right to demand blood money. Nevertheless, there are still some practical problems of Taʻyīnī theory. The domination of the theory which says retaliation right being optional (Takhyīrī) in law is the only way to solve this problems. Assuming that evidences of this theory in Imami fiqh are rare and its principles are weak, the lawmaker has not made it the basis of the law. This study has tried to prove that the theory is not rare and its fiqhi evidences are convincing.

Transgenderism is one of the important issues that has always been the subject of debate from the point of view of jurisprudence and law. In this paper, an attempt is made to address this important question that what are the rules governing the blood money of transgenders from a jurisprudential point of view? The present paper is descriptive and analytical, and the mentioned question is investigated using the library method. According to the findings, transgenderism is a type of gender disorder in which the affected person is psychologically dissatisfied with their gender identity and tries to change gender. From a jurisprudential point of view, if a transgender person is recognized as a woman, the blood money of a woman is considered for her according to jurisprudential rules, but these people generally change their gender and become their desired gender identity, in this case, their blood money is subject to the changed gender. The criterion for calculating the blood money of a person who has changed gender is the time of claiming the blood money and not the time of the injury, therefore, the blood money of these people is calculated and demanded based on the new gender, even if the gender change is performed under the supervision of a specialist doctor and in compliance with medical standards between the time of the accident and the time of the claim, the blood money of the person will be still calculated with the new gender.

Murder in the sacred months is one of the crimes (criminal matters) affecting the aggravation of punishment, which increases the blood money by one third. The well-known opinion of the jurists implies that killing in the sacred months and the sanctuary of Mecca results in and requires a full Diya plus a third of a Diya. Article 555 of the Islamic Penal Code explicitly states this issue. The predication of killing (murder) to deliberate killing can be withdrawn and defamation does not apply to manslaughter. The defamation and disrespecting of the sacred month may be concluded when the killing is intentional. In the case of manslaughter, the rule requires that no more than one full ransom (blood money) will be paid by the convicted. In this article, we focused on the philosophy and criterion of aggravating the Diya (blood money) and the views of the pros and cons were reviewed. It is suggested that Article 555 will be revised and the non-aggravation of Diya in manslaughter seems to be more convincing and plausible.

Wisdom (Aql) is one of god’s blessings to man. In order to maintain the health of Wisdom, the holy legislator, supports against several minor and partial injuries to wisdom (Aql) and covers the damage by complete or partial Dia (blood money). Consequently, chapter five of the second part of the Islamic Penal Code is dedicated to the problems of wisdom (Aql). It seems that there are serious weaknesses in Iranian legislative criminal system in this regard which did not mentioned in the juridical books. One of the most important examples is the concept of "Atah”. Although the word “Atah” is common in a period between insane and Madness, but it does not mean insanity. Likewise, in explaining the position of this concept among mental disorders, due to the lack of interruptions in relation with the realities of the world around him as well as loss of function, it is placed in category of nervouses. In the case of retaliation in crimes which causes decline or lack of reason (Aql), the evidence of the group which agrees with the execution of punishment (Qisas) is Sound.

Diyat is one of the punishments for crimes against human physical integrity. Diyat is the main punishment for quasi-intentional crimes and pure error. In the case of intentional crimes, diyat is imposed if either retaliation is not possible or the victim agrees to determine diyat. Common sense dictates that if someone's right is violated or if someone is beaten or harmed, the damage must be compensated well, and this must be done not only in the stage of proving the damage, but also in the stage of payment. Special circumstances apply.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Ethical Considerations:

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

Depending on the type of crime, the person responsible and the deadline for payment of diyat are different, but what is clear is that the payment of diyat must be done within its legal deadline; Different opinions have been expressed about the rules according to which the diyat rate should be paid.

Some believe that the ransom should be paid at the rate of the day the crime was committed. The reason for this group of people is that on the day the crime was committed, in fact, the compensation for the injuries on the same day has been proven. Another opinion that is presented to the convict regarding the payment of diyat is the day of issuance of the sentence. Legally, a person is considered guilty when a sentence has been issued by a competent court, in other words, a final sentence. According to the third view, the ransom must be paid at the rate of the day it is paid. The protection of victims' rights and preventive criminal policy, as well as various jurisprudential rules, including the rules of "harmlessness" and "respect for the property and life of Muslims," ​​require that the ransom rate be paid at the price of the day to compensate for the devaluation. The new Penal Code provides the same view in the form of Article 490.

Although many experts have tried to prove the offender's liability for paying medical expenses surplus to Blood-Money by using rules such as rule of prohibition of detriment (La Zarar Rule) or Causation rule (Tasbib Rule), but despite the fact that the offender's liability was mentioned in various enactments, the jurists of the Guardian Council knew it contrary to Sharia and hence, the parliament was forced to remove them. Nevertheless, the Guardian Council has confirmed the conviction of the offender to pay these expenses in the Law on Intensifying the Punishment of Acid Spraying approved in 2019. So, the question of this article is to analyze the basis for different approaches of the Guardian Council toward this issue. Considering the detailed negotiations of the jurists of the Guardian Council indicates that most of these jurists have been opposed to this issue due to the lack of jurisprudential evidence, as well as the opposition of Imam Khomeini and the Supreme Leader in this regard. In contrast, some have tried to justify the offender's liability to pay these expenses by presenting new reasons. This article through a descriptive analytical method indicates that the reasons for the conviction of the offender to pay these expenses can be criticized and only in deliberate crimes like acid spraying, if the Supreme Leader allows, the felon can be sentenced to pay these expenses