A Reflection on the Jurisprudence Reasons of Article 360 of the Islamic Penal Code 2013

Subject Areas : فقه و مبانی حقوق

Seyed Hashem Aletaha ¹ (lawyer)
Ahmad Hajidehabadi ² (Associate Professor Faculty of law, Farabi Campus, University of Tehran)

Received: 2018-04-11 Accepted : 2018-06-10 Published : 2018-06-22

Keywords: The right of victim's family, Qiṣāṣ, Diyeh, Optionality Theory, Determination Theory,

Abstract :

Following Khoei's Detailed Theory, Article 360 of the Islamic Penal Code stipulates that in cases where execution of Qiṣāṣ requires the payment of the surplus Diyeh to the murderer, the owner of the Qiṣāṣ right can choose between execution of Qiṣāṣ with payment of the surplus Diyeh or receiving the Diyeh even without the consent of the perpetrator. Although the adoption of this article is considered an effective step in preventing the uncertainty or wasting of the victim's blood in some cases, it is not supported by adequate Jurisprudence Reasons and has been criticized by the advocates of both the determination theory and the optionality theory of the right of retaliation, due to its use of dual criteria. Therefore, it cannot be used as a reliable basis for penal statute. Since the arguments of the Detailed theory are consistent with those of the optionality theory and can be effectively used to prove that theory, the best solution is to use the optionality theory as the basis, because it has strong and plausible foundations. Taking this measure resolves not only the current problem, but also other problems and negative consequences of the determination theory. Therefore, this research tries to evaluate and criticize the Jurisprudence Reasons of the Detailed Theory and use this argument to prove the optionality theory.