Quiddity of Authorized Discretionary Punishment in Jurisprudence and Islamic Penal Code
Subject Areas :
Farzane
Hekmatnejad
1
(Ph.D. student of jurisprudence and Islamic law, Islamic Azad University, Isfahan Branch (Khorasgan), Isfahan, Iran)
masoud
raei
2
(Faculty)
javad
panjepour
3
(Faculty of Science, Islamic Azad University, Khorasgan, Iran)
Keywords: Discretionary Punishment, Authorized Discretionary Punishment, Limit,
Abstract :
The entry of a discretionary punishment type in the Islamic Penal Code, known as the authorized discretionary punishment, and the legislator without explaining its concept and its implications with the provisions of paragraph 2, article 115 of the Penal Code, has been ruled out the application of certain legal provisions, and it has limited behavior, and causes uncertainty among activists in the salaries field, which the result of not resolving this ambiguity are the violating the rights of prisoners and confusing the activists of the salaries field, in particular judges in issuing rulings. The question now is that what are the implications and conceptions of such punishments? And what's the difference with limit? In response, it should be said that according to that the discretionary punishment is criminal which holy legislator when laying this type of punishment, are considered the conditions of time and place; it does not seem that the expression of the examples of such discretionary punishment in the language of holy legislator does not mean the definitive determination of this type of discretionary punishments; in fact, holy legislator is expressed this examples in the circumstances of that time. As a result, applying such discretionary punishment in the present situation are not considered to be a binding rule, but such discretionary punishments are subject to the general rules of discretionary punishments, that is "Al-Tha'zir be Ma Yarahe Al-Hakem".
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