نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار دانشکدۀ حقوق، دانشگاه مفید. ایران
2 دانشجوی دکتری حقوق جزا و جرم شناسی دانشگاه تربیت مدرس تهران
3 دکتری حقوق جزا و جرم‌شناسی دانشگاه فردوسی، مشهد، ایران
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Crimes like murder, punishable by death due to their connection with human life, necessitate a more precise determination of the mental state (mens rea) compared to other offenses. Article 290 of the Islamic Penal Code (2013) outlines four situations for murder to be considered deliberate:
Intention with Specific or Unspecified Victim: The perpetrator intends to inflict harm on one or more identified individuals, or on unspecified individuals within a group. The intended crime or a similar one occurs, regardless of whether the act is generally capable of causing such an outcome.
General Intent Leading to Similar Crime: The offender intentionally commits an act that typically results in a similar crime, even if they did not intend that specific crime. However, they were aware that the act could usually cause the crime or a similar one.
3.Unusual Victim or Circumstances: The offender did not intend the crime or a similar one, and the act is generally incapable of causing such an outcome in ordinary persons. However, due to the victim's illness, weakness, age, or other condition, or due to a special situational or temporal circumstance, the act becomes capable of causing the crime or a similar one. The perpetrator must be aware of the victim's abnormal condition or the special situational or temporal circumstance. An act that wouldn't be considered a felony against a normal person could become one due to the victim's condition, provided the perpetrator was aware of this unusual condition.
Indiscriminate Intent: The perpetrator intended to commit a felony or similar crime, without targeting a specific person or group. The intended felony or a similar one was actually perpetrated, such as planting a bomb in a public place.
The Issue of Minimal Criminal Liability
While including the terms "knew" and "aware" in subsections B and C of this article suggests the Islamic legislator aimed for minimal criminal liability and avoided a broad definition of mens rea, the gradation of the mental state is overlooked. Assuming a single mental state for all perpetrators of premeditated murder is simplistic and may conflict with the right to appropriate punishment. Not all perpetrators experience the same thought processes and emotional reactions. These differences should be reflected in the severity of punishment.
Potential for Reform based on Imamiyyah Jurisprudence
This research, employing a descriptive-analytical method and documentary studies, concludes that classifying the mens rea of murder is legitimate based on the principles of Imamiyyah jurisprudence. Here are four key pieces of evidence supporting this claim:
Instrumentality of Murder: Some Shiite jurists argue that contrary to paragraph A of Article 290, mere intent to kill is insufficient for Qisas (retaliatory execution) in murder cases. The instrument used must be inherently deadly. They believe verifying the killer's true intention is difficult, and since punishment is suspended in cases of doubt, sparing the killer aligns better with the spirit of Sharia.
Premeditation vs. Emotional Murder: Some scholars argue that simply using a potentially fatal method is not enough for Qisas. The crime must be premeditated. Therefore, emotional murders cannot be punished with Qisas. Mere "knowledge" or "awareness" of the potentially fatal nature of the act is not enough to justify Qisas. The element of seeking and intending the outcome should be the same criteria. Unless the person's definite intention is clear from their actions, like someone who attempts to bomb a public place, Qisas may not be applicable. This approach helps distinguish between emotional murders, for example, arising from a parking space dispute, and pre-planned murders, such as a killer lying in wait for their victim.
Quranic Support: Religious sources, particularly the Quran, offer evidence for gradation of mens rea. For instance, the term "oppressed" in verse 33 of Surah Asra can lead legislators to reconsider the current approach. "Oppressing" implies intentionality, and murders without prior planning cannot be considered cruel or deserving of Qisas.
Principle of Justice: The principle of justice, a governing rule in other Islamic regulations, necessitates grading the mens rea in murder. Criminals should be differentiated based on the severity of their actions. In the context of murder, a distinction should be made between someone who commits murder calmly, with determination and premeditation, and someone who commits murder impulsively due to excitement, stress, or discomfort. Different punishments should be legislated and implemented accordingly.
کلیدواژه‌ها [English]
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