قلمروی جرایم مشمول بعد اثباتی قاعده درأ در حقوق کشورهای اسلامی با نگاهی به آموزه های فقهی (مقاله علمی وزارت علوم)

قلمروی جرایم مشمول بعد اثباتی قاعده درأ در حقوق کشورهای اسلامی با نگاهی به آموزه های فقهی (مقاله علمی وزارت علوم) نویسندگان: روح الله اکرمی منبع: پژوهشنامه حقوق کیفری سال سیزدهم پاییز و زمستان 1401 شماره 2 (پیاپی 26) چکیده قاعده درأ دو بعد ثبوتی و اثباتی دارد. این نوشتار تلاش نموده جرایمی را که تحت تأثیر بعد اثباتی قاعده هستند، در فقه مذاهب اسلامی و حقوق کشورهای مسلمان به طور تطبیقی به روشی توصیفی تحلیلی مطالعه نماید. یافته ها نشان می دهد قاعده در کلیه مذاهب از جرایم مستوجب دیه انصراف داشته و حدود را شامل می شود، و مستثنا نمودن قذف از این شمول که در برخی فتاوا ملاحظه می شود توسط نظام های حقوقی کشورهای مسلمان پذیرفته نشده است. در دو دسته از جرایم موجب قصاص و تعزیر با تشتت در آرای فقهی و مواضع نظام های حقوقی روبه رو هستیم. در فقه و حقوق کشورهای اهل تسنن قاعده، قصاص را در بر گرفته و تعزیرات را شامل نمی شود. در فقه امامیه نسبت به شمول قاعده در این دو دسته از جرایم اختلاف نظر هست. به رغم اطلاق ماده 120 ق.م.ا. در کشور ما باید گفت قاعده در تعزیرات نیز جاری است لکن قصاص را شامل نمی شود، لذا موضع مبنی بر تعمیم قاعده به قصاص توجیه پذیر نیست. The realm of crimes subject to the evidentiary aspect of the obviation Rule (Darʼ)In Law of Islamic countries with regard to jurisprudential doctrine The rule of Darʼ has two aspects: real and evidentiary. This article tries to study the crimes that are influenced by the evidentiary dimension of the rule in the jurisprudence of Islamic schools and the law of Muslim countries in a comparative and descriptive-analytical method. The results indicate that the rule in all schools waives the crimes subject to Diyat and includes the Hodoud, and excluding the Qazf from this inclusion, which is seen in some Jurisprudential opinions, has not been accepted by the legal systems of Muslim countries. In the two categories of crimes punishable by Retribution and ta'zir, there are differences in the Jurisprudential opinions and views of the legal systems. In Fiqh and the legal system of Sunni countries, the rule includes retribution, not ta'zir. In Imami jurisprudence, there is disagreement about the inclusion of the rule in these two categories of crimes. Despite the Generality of Article 120 of the Islamic Penal Code, in our country, it should be said that the rule is also valid in ta'zir, but it does not include retribution. 1.Introduction The obviation Rule (Darʼ), which is also interpreted as the doctrine of shubha, is one of the most important criminal rules that has been accepted by most of the jurists of Islamic schools, according to which the punishment is removed in case of doubt. The issue that is the subject of this article is related to the determination of crimes that are subject to the proof dimension of the rule of Darʼ, does it include only the Hodoud, or does the rule also apply in cases of retribution, Diyat, and ta'zir? The study of the legal systems of Islamic countries illustrates that their legislative and judicial systems have adopted three different approaches to the evidentiary aspect of the rule of Darʼ. Some countries have not recognized the rule. A number of others have applied the rule to some of the doubts as an example, without having a rule-based view; And finally, some have considered it as a general rule. Our country followed this recent approach by approving the Islamic Penal Code in 1392 SH. In this article, the approaches of two groups of recent systems that have recognized the rule, in whole or in part, have been analyzed based on their accepted jurisprudential doctrines. 2.Methodology In this research, the realm of crimes subject to the evidentiary aspect of the obviation Rule (Darʼ) has been dealt with by analytical-descriptive method. 3.Resultsanddiscussion Some systems, in a case-by-case manner, have taken into consideration some of the doubts that are subject to the implementation of the rule of Darʼ in the statute and have ruled on the cancellation of punishment in them, without considering the totality of the evidential aspect of the rule. The Codes of the countries of Brunei, Pakistan, Mauritania, Yemen, the states of Malaysia and northern Nigeria and Aceh province of Indonesia should be included in this category. The suspicion of the invalidity of the Retraction of confession and the suspicion of proving the punishment for the adultery of a woman without a husband based on pregnancy are among these doubts. Another category of Islamic legal systems refers to the countries where, although the legislator has included cases in the provisions regarding some doubts, but beyond these examples, he has specified the evidentiary aspect of the rule of Darʼ in general. Sudan and our country should be included in this category. The research shows that the approach of these two categories of legal systems to the crimes that are subject to the rule is not the same and the reason for this should be found in their accepted jurisprudence foundations. 4.Conclusion The study carried out about the crimes subject to the evidentiary dimension of the rule of Darʼ indicates that: First. In Sunni jurisprudence, the rule includes prescribed punishments, i.e., Hodoud and Retribution. Regarding the hadd of qazf, some disputes have not been accepted by the majority due to the fact that it is the rights of people, so it does not allow the rule to be extended to it. Regarding the Diyat, due to the fact that, firstly, it is not a punishment and secondly, it has a financial aspect that belongs to the private rights of individuals, it is completely excluded from the scope of the rule. ta'zir is not considered as a specific and prescribed punishment, so so it cannot be removed with doubt. Second. In Imamiyyah jurisprudence, the definitive extent of the jurisdiction of the rule is the Hodoud, although there is a difference of opinion regarding the hadd of qazf, and some jurists consider gratitudinous of the rule to be contradictory by extending it to the crime of having a personal right of qazf. However, due to the existence of the aspect of God's right in this crime based on some bases, and the generality of the wording of the Hodoud of the subject of the rule without being bound by God's right, the majority of jurists consider the rule to be valid in Qazf. Dayat is out of the scope of the rule without any controversy about it, but Retribution and ta'zir are a dispute, which seems to be due to the fact that Retribution has the nature of a personal right and the word hadd does not apply to it, and according to some hadiths, the rule does not apply to it. The entry of the rule does not apply to it. In Tazirat, due to the use of hadd in non-prescribed punishments in hadiths and jurisprudential sources, the theory of accepting the rule is stronger in them. Third. In the legal system of some Sunni countries, due to the feeling of no need for the rule of Darʼ due to the existence of Presumption of innocence and the rule of interpretation in favor of the accused in the relevant provisions, the statute is silent about the rule, but a significant number of these systems have considered the evidentiary dimension of the rule either in general or with respect to some doubts. The present study shows that in these systems, the rule includes retribution in addition to Hodoud, but it does not include Tazirat and Diyat. In our country, in the Code in 1392 SH, Besides the Article 218 regarding Hodoud, in Article 120, the legislator specified the rule's absolute application in crimes, and this has caused some to consider the rule to be applicable in Hodoud, retribution, Diyat, and Tazirat. Despite this, although considering the generality of the mentioned articles, the rule should be considered applicable in all Hodoud; However, in Diyat, the generality should be considered as a result of negligence. In retribution, analysis in the articles indicates that the rule is not accepted, hence the practice of the courts that apply the rule to retribution as well can be criticized. Regarding Tazirat, considering the generality of Article 120 and the establishment of this article in the book of generalities, it should be considered that the rule should be generalized in this category of crimes. 5.Selection of References Akrami, Ruhollah (1399), “Doubt of the Islamic Legal Maxim ofDar’:Hudud Avoidance in the Case of Doubt in the Law of Iran”, Criminal LawDoctrines, Volume 17, Number 20, pp. 3-28. 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