A Judicial and Legal Investigation on the Position of Doubt in Penalty Removal

Subject Areas : Private law

Ali Hashemi ¹ (دانشگاه ساری)
seyyed mehdi Ahmadi ² (واحد ساری)

Received: 2017-05-02 Accepted : 2017-05-02 Published : 2017-05-02

Keywords: Doubt, Doubt elements, Penalty removal, Hakamiyeh doubt, Mozoeih doubt,

Abstract :

Typically, the doubt is a mental truth that may be occurred for any human being and it does not follow geographical principles, laws and situations and its occurrence do not require certain time. Although it may be a function of mental conditions affected by internal and external factors, certain time and place do not impact its occurrence and it bears limits, scales, strengths and weaknesses of the extreme of which is called ignorance it is not a kind of ignorance of which humans are aware but it is a type of ignorance under which the ignorant is not aware of his/ her ignorance and takes a false thing as a correct one and a non-real thing as a real one and this definition of doubt is a comprehensive one in opinion of Sunni and Imamiyeh jurists and Islamic penal code. What causes the achievement of Dare principle and its execution by the judge and court is the occurrence and existence of valid doubt because the doubt is the whole of subject and based on the literature it is the subject of Dare principle. But, it must be noted that any doubt cannot remove penal liability instead the kind of doubt removes penal liability that not only meets all conditions but also its existence shall be proved in all aspects for the judge and court and the social, cultural and geographical position, intellectual atmosphere and personal life of ignorance and doubt claimant shall be considered too. The important point in the present article is that in the case that doubt is of subjective type, he/ she is known as subject to Dare principle if ignorance domain is limited to the intentional crimes. But the torts and or unintentional crimes that their mental element is due to fault and error do not change the nature of crime and removal of penal liability and with the lack of mental element of crime, its punishment is naturally waived or discounted.