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

Childhood and adolescence is an influential and sensitive stages in every person’s life. Legislators, understanding this sensitivity and try to consider different rights and duties for juvenile according to the differences between this group and adults. In the Islamic Penal Code, this issue has been considered by the legislators and a differential system has been provided to respond to the crimes of juvenile. According to this, in Article 91 of the Islamic Penal Code, Legislator predicted specific rule deals with Criminal maturity, ignorance of the law and mistake of fact in juvenile crimes punishable by haad or qisas. However the legislator in general section of Islamic penal code, Articles 144 and 155 discusses about ignorance of law and mistake of fact in adult crimes. At first glance, mentioning these cases again in Article 91 seems superfluous and meaningless. But, according to the policy of differentiation and based on legislative mitigation in response to juvenile delinquency, it seems that Article 91, try to extend the concept of ignorance of law and mistake of fact, in juvenile crimes punishable by haad or qisas to provide more commutation for juvenile offenders in compared with adults..

One of the conditions of penalties, besides criminal behavior, is the authentication of criminal situation in a way we can attribute this action to its doer. This criminal capacity has two principles: knowledge and free will. If the doer is unaware to the law, it is called "Ignorance of Law", which has four kinds: intentional delinquent ignorance, non-intentional delinquent ignorance, intentional non- delinquent ignorance, and non-intentional non- delinquent ignorance. Considering the authentication of criminal situation, it can be said that ignorance of law removes criminal responsibility. According to the Islamic rules, non-intentional ignorance of law removes any kind of criminal responsibility.

The major contents of this article include the nature, principles, effects and finally probative value of assuming knowledge of law. The basis of legislating this presumption as a conclusive legal one (and not a fiction) is the public policy in preventing irregularity and confusion. It is justified by ‘inwardness state of knowledge and that it is mental’ that makes it difficult to be proved. Although it is considered to be unfair to blame someone who is ignorant of law ,in ‘fiqh‘ sources, every reasonable person is presumed as being aware of law, according to the appearance, unless under certain conditions. This presumption is rebutted in three cases, due to its nature and its probative value according to the Islamic Penal Code: I-when a perpetrator is ignorant of non-criminal provisions such as civil regulations or administrative provisions which are efficient for a crime to come into existence. In these cases, mental element (mens rea) doesn’t exist. II- When the perpetrator’s ignorance is based on own his failure (not his fault). III- In “had (penance)” crimes and in “tazir” crimes (in the strict sense of the term) which are pre-ordained in fiqh; as soon as the accused claims that he was ignorant of law, when it is probable.