نوع مقاله : پژوهشی
عنوان مقاله English
نویسندگان English
The introduction of the title “Shariah-prescribed ta’zir” into the Islamic Penal Code of 2013, following the objection of the Guardian Council, without a clear definition and precise explanation of the scope, has raised fundamental questions in Iranian penal jurisprudence and criminal law. This research, using a descriptive-analytical method and using Imami jurisprudential texts and analyzing legal articles, shows that Sharia-prescribed ta’zir refers to punishments that are determined in Sharia for a “specific cause and specific behavior,” their type and amount; whether the amount of punishment is fixed or is left to the ruler within a range between a minimum and a maximum. The uncertainty of the amount is the dominant aspect of ta’zir, but the prescribed ta’zir has not been removed from the title of ta’zir and their inclusion in the limits lacks explicit documentation. Prescribed ta’zir are subject to the general rules of ta’zir, including being a judge’s discretion, taking into account the conditions of time and place, the personality of the perpetrator, and the possibility of using relief institutions. The principle of legality of crime and punishment, considering the generality of Article 167 and the broad interpretation of "law", does not prevent the court from referring to reliable jurisprudential sources in this area. The article criticizes the strict approach of Note 2 of Article 115 and suggests amending or deleting this note.
کلیدواژهها English