نوع مقاله : مقاله پژوهشی
نویسندگان
1 عضو هیات علمی گروه حقوق و رییس دانشگاه آیت الله الغظمی بروجردی
2 مرکز مطالعات فقهی پزشکی قانونی
3 مدیرگروه فقه و پزشکی قانونی مرکز تحقیقات پزشکی قانونی
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
The legislator in Article 282 of the Islamic Penal Code, which was approved in 2003, has enacted that: "the penalty for Moharebeh (the war against Allah) is one of the four following punishments". a. Execution b. crucifixion c. the cutting of the right hand and the left foot d. exile from the land. Then, in Article 283 of the same law, according to one of the two jurisprudential perspectives (Takheer view; which is the freedom to choose one punishment over others) in this view has stated: "The choice in each of the four aforementioned cases in Article 282 is at the discretion of the judge". The judge, in accordance with Article 283, has the absolute power to choose any of the punishments provided in Article 282 for the Mohareb. the legislation of article 283 based on the delegation of absolute power for choosing the punishment to the judge, not only is not the most acceptable jurisprudential view in this regard, but also It has faced serious criticisms such as having conflict with philosophy of legislation for divine punishments and not observing the principle " the proportionality of crime and punishment". It also prevents the unification of the judicial precedent. In contrast to the " Takheer view ", there is another jurisprudential view, called "Tartib (choosing one of the punishments in order)", which, not only it has an index of "the principle of perceived justice in the order view", but it does not have the criticisms in the " Takheer view ". Finally, the current paper calls it necessary to observe the order in punishment, based on the descriptive-analytic method of evaluating reasons and, therefore, it criticizes Article 283 and proposes to amend it.
کلیدواژهها [English]
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