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

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.

If a woman commits the murder of a man and the avengers choose the revenge, there are two types of hadiths among the Imamiyya sources regarding the extra payment of wergild. All hadiths, except the narration of Abi Maryam Ansari, indicate that this payment is not necessary, but that hadith emphasizes the necessity of extra payment as its proof. Imamiyya jurists have put many questions about text and authority about this hadith, and the present study tries to answer these questions and examine them by using a descriptive and analytical method with library study method. Based on the writers' point of view, the weaknesses of Abi Maryam's hadith roots from its opposition to the Holy Qur'an and the principles, its coordination with Taqiyya, the lack of clarity in the meaning, its justification with recommended verdicts and financial ability, and the assumption of two murders. Even though, there is a reliable authority for the text but due to its contradiction with the other hadiths, the oppositions of main scholars, and the possibility of distorting, this narration should be discarded and it should be considered not as a vital rule.

According to Imami jurisprudence, if a man intentionally kills a woman, then the woman can retaliate by paying half a diyat to the man. This sentence, in addition to the fact that the ransom is conciliatory in premeditated murder and requires the consent of the killer, is sometimes problematic in practice; Because sometimes a woman is not able to pay the ransom and the killer is not willing to compromise; As a result, a woman's blood is exposed to waste. There are several ways to solve this problem, including the equality of male and female retaliation, the payment of a woman's ransom from the treasury and not recognizing the ransom, and the possibility of forcing the killer to pay half of the ransom. In this article, the first and second ways are reviewed and the third way is proposed.In verse 32 of Surah Ma'idah, the Holy Qur'an emphasizes the sanctity of human life with a beautiful interpretation and considers self-murder as one of the greatest sins, and legislates the guarantee of retribution and blood money to prevent its commission as punishment for criminals and compensation for some damages.

Today, the issue of gender change is also important in terms of legal and legal medicine. Given the fact that the legislator has not explicitly taken a decision on this issue, this is a leading challenge that can be addressed in the face of these issues. The ability to respond to them has come. Among the issues that can be mentioned in this regard is the issue of responsibility for the payment of Diyat, which in some cases the right of retribution is obligated to pay dividends before retaliation. With this explanation, is it possible for the perpetrators of the right of qisas to have an effect on the criminal and gender mutilation of the crime before and after the crime in rejecting Fadhil Diyah in deliberate crimes as well as those who pay the Diyat in pseudo-intentional crimes and pure error? In accordance with Article 167 of the Constitution, in the case of the silence of the legislator, the judge is obliged to seek a proper ruling from authentic Islamic sources and can not refuse to investigate it on the pretext of silence and legal prosecution. With this explanation, various opinions and arguments in this regard have been made by the jurisprudents that some Absolutely, they consider the act to be unlawful; in contrast, some have also accepted the permission of the practice, which ultimately can provide a unique legal remedy for the adoption of a single action procedure.

In previous and current Islamic Penal Code, legislator has two different approaches about enforcement of retaliation in cases of difference blood money. It originates well-known jurist opinion (Fatwa) and non-well known jurist opinion that are exist about enforcement of retaliation. According to well-known jurist opinion and basis of article 258 Islamic Penal Code Act 70, difference blood money is paid before retaliation and for changing retaliation to blood money, criminal consents payment of blood money. However, according to non-well-known jurist opinion and criteria article 44 law of Hodod and Retaliation Act 61 and also article 360 Islamic Penal Code Act 92, two rights, enforcement of retaliation that difference blood money is paid before retaliation and to take blood money, exist in cases of difference blood money. So, it is necessity that practical precedent of Council of Guardian reviewed, as authority of conformity and contradiction Shariah criteria rev, to recognize basis not accepting well-known jurist opinion about enforcement of retaliation in cases difference blood money. Therefore, in this research through a descriptive-analytic method and refer to theories of jurists of Council of Guardian, changing of juristic opinion shows that it uses accessible jurisprudential approaches to make more efficient jurisprudence as law.

Sometimes for Qisas al-nafs (Qisas for life, execution) or less than it, some amount should be paid to the one who is to be retaliated. This amount is called difference of blood-money (diyah). There are certain rules for difference of blood money. Though there is no chapter called “Difference of Blood-Money” in the Qisas Book of Islamic Penal Code of 1392/2013, the legislator has dispersedly devoted some articles to it. Adopting a juridical-legal approach, the present article will study the rules of difference of blood-money and, while explicating foundations and documents of the articles of Islamic Penal Code which are relevant to this case; it will provide some critiques and comments. For example, who will pay difference of blood-money and when. Who owns difference of blood money? The one who is to be retaliated or the family? Is it an obligation only for one who demands Qisas? And, finally, how will difference of blood-money be calculated? These are various parts of the present article.

One of the important issues about collection of diayh from the criminal who have committed a crime involving difference of diyah is impact of his/her consent to pay difference of diyah and him/her release from qisas. Most Shiite faqihs believe that criminal’s consent to pay diyah is necessary and that according to the Qur’anic verses and hadiths concerning discretionary nature of punishment of crimes involving qisas, the victim or his/her heirs are entitled to impose qisas on the murderer. According to this group of faqihs, if those entitled to impose qisas ask the criminal for difference of diyah, the latter shall have a choice between giving consent to pay such amount and not doing so. However, another group who invoke some of hadiths and doctrine of “la yabtal” hold that those entitled to impose qisas may choose between “qisas upon payment of the difference of diyah” and “obtaining of diayh from the criminal in absence of his/her consent”. Iranian legislator had also adopted the opinion of the former group. However, the new penal code derogating from the majority opinion has adopted the latter opinion, not requiring consent of the criminal for payment of difference of diyah. This research exploring arguments of both groups demonstrated that the majority opinion of faqihs is firm and reasonable and the opinion of the other group and the legislator is based on acceptable proof.

The main hypothesis in this paper is that Sahebe javaher is be wrong related to exact calculating of surplus of blood money to the difference sexuality (male, femal , hermaphrodite). In this paper which written on descriptive- analytic, the author in first time criticize on Sahebe javaher view point about to participate in killing of on Muslim person regarding to circumstances of calculation of blood money to the persons which participate on killing the person about their surplus Blood money that must be returned to them before killing them as a murder, by the state of different of genus: male, female, hermaphrodite. According to principle of 4 and 167 of Constitutional of Islamic Republic of Iran to Jurisprudentional Saheb javaher view points in the cases of judge-made law.

When an intentional crime against physical integrity is at issue, the question arises as to whether the right to Qiṣāṣ (nemesis) is a determinate right for the victim or his/her family or they have also a right to Diyah (blood money) and the option to choose one of them according to the Iran Islamic Penal Code and what Fiqh arguments are available for the issue. After the Islamic Revolution, legislator generally followed the popular view of Imami Fiqh scholars i.e. the right to Qiṣāṣ (nemesis) is a determinate right for the victim or his/her family and the right to Diyah (blood money) is not a right alongside the right to Qiṣāṣ (nemesis) although it is permitted on the basis of the criminal's consent. But when the enforcement of the right to Qiṣāṣ (nemesis) is conditioned to the payment of surplus of the Diyah (blood money) like Qiṣāṣ of a man for a woman, the legislator has not had a fixed position. This article is trying to determine the determinacy or optionality of the right to Qiṣāṣ and the evolution of legislative policy with an approach to the Fiqh scholar's opinions and their evidence.