Document Type : Research Paper
Authors
1
PhD in Criminal Law and Criminology, Ferdowsi University, Mashhad, Iran
2
Assistant Professor, Faculty of Law, Mofid University, Iran
3
Tarbiat Modares University
10.22099/jls.2023.43989.4743
Abstract
One of the prominent features of Iran's criminal policy towards murder, from the victory of the revolution until today, is the lack of grading of the Mens rea of this crime. Although this view has been documented in Shiite jurisprudence, it can be criticized based on the principles of this jurisprudence. therefore; The current research is trying to answer this question, what are the bases of the legitimacy of grading the Mens rea of murder from the perspective of Shia jurisprudence? According to some Shiite jurists, contrary to paragraph A of Article 290 of the Islamic Penal Code of 2012,mere intent to kill is not sufficient to commit murder causing Qisas, but the instrument of crime must be inherently deadly, Beyond this, in the opinion of some others, the mere fact that the behavior is typically fatal is not enough to form a murder that causes qisas, but the crime committed must be accompanied by the previous planning of the perpetrator. Therefore, the punishment for emotional murders cannot be qisas. In addition, by referring to religious sources, especially the Qur'an, we will find evidence of this. For example, the adverb "oppressed" in verse 33 of Surah Asra can lead the legislator to reconsider the current approach, because "oppressing" is an intentional verb and murders without prior decision cannot be considered cruel and an example of murders subject to qisas. Finally, the principle of justice, as a rule governing other Islamic regulations, necessitates the grading of the mens rea in murder.
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