چکیده:
When we accept dar` rule، we will face with two agreeable and disagreeable viewpoints to it، and some scholars are opposed to extension of the rule to the Ta`zir and Qesas crimes. Among the existing jurisprudential opinions، the legislator underlies its acceptance theory and its extension to ta`zir and qesas which seems not to be applicable to the Ta`zirat or، at least، to the reasonable ones because of specifications of the mentioned rule and its basic difference with the innocence principle. The rule itself and its requisites are acceptable in the limits of some crimes، but the legislator`s inattention to these requisites makes some of dominant principles in the criminal law practically ignored، and causes the offenders to abuse them. This paper discusses the legislator`s attitude towards the rule and its negative requisites with due attention to the jurisprudential opinions regarding the issue، meanwhileavoids the exiting debates on the legitimacy and inclusion scope of the rule.
خلاصه ماشینی:
Article 120 of the Islamic Penal Code, passed in 2013, considering all crimes (including crimes subject to Hudud, Diya, Qisas, and Ta'zir), stipulates: "Whenever the occurrence of a crime or some of its conditions, or any of the conditions of criminal responsibility, is subject to doubt or uncertainty and no evidence is found to negate it, the said crime or condition shall not be proven, as the case may be.
This article attempts, while avoiding existing discussions in the field of the rule of Dar' in jurisprudence, to present the scope of the rule of Dar' in jurisprudential discussions; also, it intends to examine the consequences of ignoring the effects resulting from the extension of the rule of Dar' to Ta'zirat from the perspective of legislation and the reflection of jurisprudential opinions in the law, as well as its relationship with other principles governing criminal law.
Some, considering this point, have stated: «The subject of the rule of "Dar' al-Hadd" is the occurrence of doubt and ambiguity, and if negative principles (Usul al-Admiyyah) are applied in these cases, no subject remains for the application of the rule, and it would necessarily become redundant» (Mousavi Bojnourdi, 1401 AH: Vol. 1, p.
This view has been accepted in Article 121 of the Penal Code regarding certain Hadd punishments, where the legislator used the phrase: "Merely due to the existence of doubt or hesitation, and without the need to obtain evidence, the aforementioned crime or condition is not proven, as the case may be.
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