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

Fracture of the nasal bone is one of the most common cases of fracture stated in jurisprudence books. It seems that the nose is absolutely considered as a single bone in jurisprudence books and the cost of its fracture is determined according to this concept. This is despite the fact that the child's nasal bone is not completely connected and is considered as a group of multiple bones from the medical and customary point of view.The present article employs a critical-analytical method to analyze whether it is considered one fracture or two fractures if a fracture similar to an adult's fracture happens to a child's nose and leads to the breaking of two bones close to each other. A lack of related tradition in the issue of nasal bone fracture has complicated the investigation of this issueThe research shows that among the evidences presented for the equality of nasal bone fractures in children and adults, there is enough evidence to prove equality. The most important reason that can be provided for the equality of the Dīyih is referring to the application of similar traditions in other bones of the child, which have a similar situation. The application of the words of the jurists in expressing the ruling on the issue of Dīyih for fracture also supports such a conclusion.

In Article (568) and Clause (a) of Article (569) of the Islamic criminal Code, the legislator has expressed the amount of  Diyah for fracture. Assigning two different articles to this issue has caused the perception that these two articles have a different subject. This view is strengthened by the legislator's statement to assign the rule of Article (568) to "fracture of a limb" and Article (569) to "fracture of a bone of a limb". The difference or sameness of the subject of these two regulations, along with the gaps and challenges that are facing them, makes it necessary to analyze their structure and basis. This necessity is more felt by referring to the conflicting views of the legal authorities of the judiciary in this regard and the existence of fundamental problems in the Shariah and jurisprudence foundations of these two articles. Understanding this importance, the writer, with a descriptive-analytical method, while strengthening the divergence of the above-mentioned articles, suggests the removal of Article (568) due to its content or lack of Shari'i validity. It is also mentioned in this essay  that paragraph (a) of article (569) needs to be fundamentally amended and in this regard, three suggestions  for the amendment of this article have been mentioned.

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.

The legislator of the Islamic Republic of Iran has considered the recovery of some of the impairments that occur because of crimes against the physical integrity of individuals to reduce the diya for those impairments. This view is the result of referring to some religious texts and jurisprudential fatwas. By examining the jurisprudential sources and articles of the Islamic Penal Code, it is possible to find many gaps and challenges in the field of the effect of recovery on reducing the amount of diya. In addition to the monopoly of impairments to specific cases such as fractures and the limited cases of impact on a particular organ, one of the most important gaps is that no clear features and components are provided to explain the concept of recovery and recognition of its types from each other. This major gap and challenge also exists in the Islamic Penal Code and has become one of its weaknesses. Besides, the legislator's use of vague interpretations in this regard has caused the Islamic Penal Code to face major problems. In this paper, with the aim of amending the articles of the Islamic Penal Code, an attempt is made to explain the viewpoints of jurists and legislators in a descriptive-analytical method, as well as to explain the existing challenges in this regard and finally to offer suggestions to solve them.