جستجوی مقالات مرتبط با کلیدواژه « قصاص نفس » در نشریات گروه « علوم انسانی »

The legal regulations governing the performance of police officers during the implementation of law enforcement missions suffer from the existence of two major disorders. First, police officers who deathly shoot during armed missions are punished as individuals who, with personal motives, procured weapons and weapons and killed another person. Second, the behavior based on the intention to kill is considered the same as the behavior of killing without the intention to kill, and the punishment of self-retribution is applied to both cases.

The current research is applied and of a review type. Legal provisions and jurisprudence related to the subject have been analyzed.

The nature of police missions is related to two types of life risk: on the one hand, there is a possibility of life risk for the officers at any moment, and on the other hand, some police missions are carried out with the aim of freeing a hostage or a person who Life is in danger. In both cases, it is necessary to equip police officers with appropriate tools and to include the conventional risks of equipping these officers with firearms in the legal guarantees. In the field of acceptance of the risks caused by equipping the officers with firearms, no reprimanding action has been taken and the occurrence of fatal shootings during the police mission does not have a legal basis for mitigating or reducing the punishment for the officers. In the process of judicial investigation of accusations related to deadly police shootings, the changing and dynamic conditions of time and place governing the missions and the limitations governing the calculations and decisions of the officers are under the shadow of unconventional arguments and mental expectations. takes and does not appear in judicial decisions.

There are three kinds of death Punishments in Islamic law: Retaliation, Hadd or death ascertained execution and Tazir or not- ascertained death execution. Sometime after execution and death ratification by the physician, there appear the signs of life in the offender. The question to which this study, an analytic one is going to answer is that whether it is permissible for the judges to execute the offender in this case or not. The Islamic criminal Law of Iran following the majority of Imami jurists accepts the view that the family of the victim have the right to ask the execution of the offender due to the concept of some verses of the holy Quran and some narrations. The outcome of this study is that in the case of the retaliation it is trough but The outcome of this study is that in the case of the retaliation, it is trough but in the case of Hadd or death, ascertained execution it is not permitted when the offence is proved by his assertion, and the offender suffers the enforcement of the punishment. And Finally in the case of not- ascertained death execution it is not permitted at all due to the lack of proofs.

A systematization of religious propositions concerning Islamic punishments, particularly qişāş (retaliation in kind), and extraction of the principles governing their legislation play a significant part in understanding the philosophy behind their legislation and how to respond to objections raised against them, since it is only in this way that the ground is prepared for a systematic reply. Drawing on the descriptive-analytic method and considering the human existential dimensions and the human developmental course in Islamic psychology, this article seeks to extract theological principles, a proper deployment of which clarifies the philosophy of the legislation of qişāş and paves the path for presenting counterexamples or explanatory replies to objections raised against this ruling. Based on the findings of this article, there are five relevant theological principles: (1) the principle of human inherent dignity, (2) principle of guidance and salvation, (3) principle of justice and fulfilment of rights, (4) principle of life as well as individual and social dynamics, and (5) principle of deterrence in punishment. These are the principles governing the punishment of qişāş. This article utilizes the implications of these principles and their priorities to reply to some objections raised against qişāş, including the superiority of life prison to qişāş and its incompatibility with altruistic and human dignity considerations.

At the time of deliberate murder, what can be deduced from the Quranic verses and Islamic hadiths, as well as ijma’[1], is that qisas-e nafs is a right for the owliya’-e dam[2]. In Islamic fiqh, some conditions have been considered for the realization of the rights of the victim. Yet, a question raises here that if there is any possibility of tab’eiz in qisas-e nafs, so that the valiyy-e dam retaliates partially; i.e., he or she retaliates some part of qisas, or in other words does not take the life of the murderer (i.e., total retaliation); but, in return, by implementing retaliation partially (for instance by cutting one organ like the leg of the murderer) he or she forgives the murderer not to go under capital punishment, or is ready to compromises under some certain conditions. This is an issue that has not been directly mentioned in the Islamic texts and narrations, nor in the jurists’ opinions of various Islamic schools. According to one view among contemporary foqaha[3] in qisas-e nafs, tab’eiz is by no means acceptable since soul is per se a single entity by essence that after the creation of the body organs, the soul has been breathed into them and such soul is not like the body that has independent components or organs. However, relying on the principles, rules and reasons governing the issue of qisas, including the right of qisas, compromisability of qisas, the necessity of saving one’s life, advisability of forgiveness, inclusion of the principle of choosing the lesser of the two evils, etc. one can claim that qisas is a right, and since one can forgive his/her right of qisas completely, he /she can also forgive some parts of his/her right of qisas, or the right of qisas can be waived by the agreement of the parties. To conclude, it seems that one cannot say that there is no possibility of tab’eiz in qisas-e nafs, and owliya’-e dam can be satisfied through compromise with less amount of punishment than blood vengeance, or execution as capital punishment.

If the premeditated murderer, in addition to being sentenced to qisas (retaliation), has also been sentenced to death for hadd (punishments that under Islamic law are mandated and fixed by God), such as moharebeh (waging war against God), according to Article 133 of the Penal Code, qisas is prior to the execution of hadd, and the avengers of blood are asked to retaliate. However, if the avengers of blood refuse to demand the qisas immediately, the premeditated murderer will be executed as hadd. The problem of the current paper is whether in this case the qisas nafs (qisas for life) turns into diya (blood money) and is subject to death in Article 435 of the Penal Code or not. The law regarding the conversion of qisas nafs into diya is vague in this case, and this issue has not been specifically dealt with in jurisprudential books. In this paper, legal articles as well as jurisprudential views have been examined and a set of arguments and evidences have been used, which based on the hypothesis of this study, with the execution of the premeditated murderer, the issue of qisas is obviated and the conversion of qisas into diya also lacks valid legal evidence, and from a jurisprudential point of view, the view of not turning qisas into diya is stronger.

The most important crime against the physical integrity of individuals is premeditated murder, which has different punishments under the laws of different countries. New approaches by the legislator can be seen in the regulations on retaliation in the Penal Code of 1392. It seems eliminating the legislative gaps in the previous regulations is one of these approaches. Hence, there are fewer ambiguities in the new penal code on issues such as the powers of the guardian of the minor, the status of the order to kill another, and the guarantee of the criminal execution of murder victims. Another approach is to protect the public order of society, which she has shown in the form of cases such as protecting all victims of premeditated murder and giving the parents the right to receive blood money without the consent of the killer. In addition, the new legislative view of legitimate defense, as well as the issue of the perpetrator's awareness of the lethality of the act, indicates the deliberate use of the existing capacity of different jurisprudential approaches to resolve legal and judicial problems. In this article, in a descriptive-analytical method and using library tools, the aim is to examine the legislator in setting the rules of retribution, especially in the field of punishment of the parents of the victim, the initial request and issuance of a sentence of retribution in the punishment of Islamic law 1392.

Under the article 417 of the penal code of Iran (1392), the authorization of the supreme leader or his representative in the execution of Qiṣāṣ (Arabic: قصاص, Retribution) is essential. Although there has been counted many proofs and several principles for the obligation of the authorization of the Guardianship (wali al-amr) in Qiṣāṣ but the continuation (Prolongation) of the procedure in the stage of the authorization results the effects such as the fear for the escape of the condemned prisoners to Qiṣāṣ and the enhancement of the amount of diya or Diyah (Arabic: دیه, A compensation payment to the victim or heirs of a victim -the guardian of the blood-) in the cases of the obligatory of the payment of the difference by the guardian of the blood in order to choose Qiṣāṣ. The important effect of the deprivation of liberty of the convicted to Qiṣāṣ until the pronouncement of the authorized official has a general aspect and whether in the stage of requesting for authorization it is accepted Qiṣāṣ or whether it is not approved, it is inevitable. In this paper with analytic-descriptive method, it has been studied the legal and jurisprudential examination of the imprisonment of the convicted in the stage of the requesting for authorization. The result shows that such imprisonment is incompatible with what have been determined in Islamic law texts about Qiṣāṣ, Diyah or amnesty for prisoners convicted of intentional crimes and the imprisonment of the convicted which is the imposition of another multiplication of the punishment is not permitted. There is no specific reason for the legality of the deprivation of liberty of the convicted to Qiṣāṣ. With paying attention to these outcomes, it is necessary to legitimate the time for requesting for authorization and to be reduced. If it is obligation to imprison the murderer for the society’s interest and consequently, the Qiṣāṣ is implemented, it will be necessary to be provided fair compensation.

The principle of respect for human dignity plays an essential role in establishing the moral norms related to the human rights. In the criminal policy of Islam, this principle has been given special attention. In accordance with the holy law of Islam, the Iranian legislator underlines in its constitution that the legitimacy or unlawfulness of other laws and regulations is based on it, has emphasized human dignity in various principles. In considering the laws of Iran precisely, at first sight, we face a kind of challenge in its wake. For example, they consider some punishments, such as retaliation, Rajm, execution, amputations, etc.., as a form of human dignity violation, but the arguments of the supporters and opponents of such punishments should be elaborated. Accordingly, the present study, following a brief explanation of human dignity, will deal with retaliation. And the authors have come to the conclusion that the retaliation punishment does not contradict with human dinity, but the inequality between men and women in this punishment is significant and have been criticized.

The retribution of the soul is predicted as the main punishment for deliberate crime against the physical integrity of individuals in the verses and traditions and consequently in Islamic jurisprudence and the law of punishment. The establishment and execution of the retribution of the soul is bound to exist. There are a total of four conditions in the jurisprudential and legal sources for establishing retribution for premeditated murder: equality in social status (religion and race), religion, gender, and general conditions of duty. Narratives that confirm the verdict of retribution and the payment of surplus blood money in cases of premeditated murder by a man have cited gender, namely male and female victimization, as important conditions for the retribution of the soul. Given that this religious denomination has been disputed today in Western scientific societies, especially among pro-feminist schools, it is important to address it. This article will review and critique the method of library and analytical-descriptive method of jurisprudential views on gender, and its impact on the retribution.

This article tries to study the provisions of Article 381 of the Islamic Penal Code of 1392 based on the study of criminal policy and to point to the discourse of participatory criminal policy and its effects in the execution and fall of the sentence of premeditated murder in the book of retribution.

The research method in this paper is descriptive-analytical.
Ethical Considerations: Ethical considerations regarding the writing of texts as well as references to sources were observed.

The findings of this study indicate that the prosecution of the offender and the punishment of retaliation in premeditated murder are subject to the request of the guardian, but in case of pardon and compromise with the offender, the responsibility in terms of public is left to official government authorities. Thus, in Iranchr('39')s criminal policy, the guardians of the tail, along with the government, the treasury and the Supreme Leader, participate in responding to the criminal phenomenon of premeditated murder.

In response to the violations of norms that occur in society, although in accordance with the provisions of the Islamic Penal Code, the determination and application of punishment is in the exclusive competence of the government. However, in determining, executing and dropping the punishment of retaliation, based on the teachings of jurisprudence, the victim and the guardian have been given an important role and position as the primary and secondary victims of premeditated murder. Islam can be mentioned.

The retribution of the soul is predicted as the main punishment for deliberate crime against the physical integrity of individuals in the verses and traditions and consequently in Islamic jurisprudence and the law of punishment. The establishment and execution of the retribution of the soul is bound to exist. There are a total of four conditions in the jurisprudential and legal sources for establishing retribution for premeditated murder: equality in social status (religion and race), religion, gender, and general conditions of duty. Narratives that confirm the verdict of retribution and the payment of surplus blood money in cases of premeditated murder by a man have cited gender, namely male and female victimization, as important conditions for the retribution of the soul. Given that this religious denomination has been disputed today in Western scientific societies, especially among pro-feminist schools, it is important to address it. This article will review and critique the method of library and analytical-descriptive method of jurisprudential views on gender, and its impact on the retribution.

The two countries of Iran have relatively close laws for religious and cultural similarities, and both claim to have their own laws based on the sacred law of Islam .one of the laws of the two countries is the penal code, and one of the major offenses in both laws is intentional homicide, despite the different penalties provided for in the two countries ‘penal laws. The present study attempts to study and explain the differences and similarities of the mentioned punishment by comparing the two laws with a descriptive and analytical method and finally determine the degree of conformity of both laws with Islamic jurisprudence. The findings of the study indicate that the punishment of premeditated murder in Iranian criminal law, retribution and in the Iraqi state is one of the three punishments of life imprisonment or provisional imprisonment, execution and life imprisonment or execution. in Iran, the primary punishment for premeditated murder is retribution, and in Iraq, the primary punishment for deliberate murder, temporary or permanent imprisonment, and in certain cases, the death penalty, although most cases and cases of premeditated murder included .the president is on exception and has stipulated that the Iraqi code, the primary and unconditional punishment of his killer, be executed .the president is on exception, and the death penalty is stipulated by the Iraqi penal code. Ultimately, it is clear that the punishment of intentional murder in Iranian law is in accordance with sharia principles, while in Iraqi law, the customary law has taken the place of sharia.

By virtue of the Articles 296-299 of IPC, if the perpetrator commits several crimes to the organs of a person by one or more than one strikes, the latter shall be subject to qisas in person or qisas in person plus qisas in organ and in some cases the latter shall be subject to payment of full Diyah. However, there are other punishments provided under fiqh as well, which are sometimes more consistent with principles of penal law and the provisions of the Qur’anic Verses, Hadiths and usual Amaliyah. Now the question is if the said items are consistent the propositions of the Islamic fiqh. Given the necessity of consistence of the penal laws with Shariah, Seeking to legitimize the rules of penal code, this paper aimed to amend the above mentioned articles of law and proved that except for the ambiguity involved in the Article 298, this article and the Article 297 are not inconsistent with the credible fiqh authorities. However, the generality of the Article 296 and the provisions of Article are not defendable and must be amended on the basis of the strength of most of the evidence provided by the opponents.

Survival of the murderer after Qisas has different cases some of which have been mentioned in jurisprudence and law. Other cases can be inferred from jurisprudential principles and laws of qisas or special texts. In all these cases, blood-claimer can execute the verdict once again to obtain his/her/their right. However, whether blood-claimer is liable for the damages caused for the convict in the first time of qisas and to determine the cases of liability for qisas or blood money in different cases of the issue, have different rulings which are covered in this article explaining the rulings which are not mentioned in jurisprudence nor in law. The author also proposes a new opinion in the criterion of liability to qisas or blood money for the damages inflicted upon the convict and finally recommends to adjust article no.438 of the Islamic Penal Code.

The method of executing qisas of murder has been discussed under various jurisprudential issues such as executing qisas similar to how the murder has occurred, or by a poisoned or blunt device or to mutilate the murderer. This has also been discussed in article no.436 of Islamic Penal Code. In this research, following the jurisprudential study of this issue, a number of results have been obtained including new methods in executing qisas which inflicts the least pain to the convicts such as executing qisas of murder in the form of donating body organs which does not only have no legal constraint but also have many rational benefits. Therefore, it is recommended to adjust article no.436 to remove the legal barrier to use this new method and other methods which inflict the least pain upon the convicts.

In case of murder, in accordance to the holy verses, traditions as well as the consensus of jurisprudence scholars, avenger of blood has the right to demand retaliation, pardon of murderer and compromise on blood money. There is no discussion on this question that “can the parties of the claim compromise on limb retaliation instead of soul retaliation?” It seems that relying on the principles and reasons such as the right of retaliation, compromiseability of the right, analyzability of the retaliation, comparability of the similar cases, religious preference, recommendation of shariah sources to reduction of homicide and retaliation as well as the necessity of life preservation, it is possible to say that such compromise is permissible in accordance of Islamic jurisprudence and legal system; and act to the benefits of the both parties. These article first attempts to state the problem and then to discuss its legitimacy reasons.

Blood vengeance and reviewing its components is a controversial topic in domestic and foreign circles. Diversity of viewpoints and multiplicity of approaches to this issue have led to differing views and opinions in this regard. Using descriptive-analytical method and referring to the Quran and religious sources, the present paper seeks to explain the importance, status and need for blood vengeance in Islam. The results indicate that blood vengeance in Islam is an intellectual, moral and social practice and its philosophy or foundation is based on the establishment of individual and social justice. Presenting some educational principles (justice, honor, etc.) and educational methods (proportion between crime and punishment, concealing defects, etc.), this study deals with the necessity of blood vengeance in Islam.

Unlike the Islamic Code (approved 1370/1991) in which no suitable attention had been paid to the rule of interference of retaliation, the Islamic Punishment Code (approved 1392/2013) has discussed this rule as well as the rule of interference of blood-moneys in details and in which some innovations may be seen. In spite of increase in the number of articles concerning this rule, some innovations in the Code are not juridicially supported and some defects and conflicts may be found in legislation which require serious revision. For example, according to the new Code, if one intentionally inflicts blows on some limb of another person while he/she does not intend to kill the former and the other person is killed, though this is considered as quasi-intentional homicide, the killer is sentenced to retaliation of limb (for limb) as well as payment of blood-money. Also, if some successive blows kill another person, the Code considers interference of retaliation of limbs and retaliation. When insuccesive blows kill some other person, however, the criminal is sentenced to retaliation for manslaughter and, in addition, he is sentenced to retaliation for committing crime on limbs except for the the slain’s limb harmed before the last crime.