Volume 22, Issue 3 (2018)
CLR 2018, 22(3): 57-82 |
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Habibzadeh M J, Mouavi Mojab D, Khorami Iraqi E. A Search about the Necessities of Applying the Obviation Rule in Punishment Execution
In View of Penal Jurisprudence and Statute Law
. CLR 2018; 22 (3) :57-82
URL: http://clr.modares.ac.ir/article-20-26500-en.html
URL: http://clr.modares.ac.ir/article-20-26500-en.html
1- 1. Professor, Department of Criminal Law and Criminology, Tarbiat Modares University, Tehran, Iran , habibzam@modares.ac.ir
Abstract: (9967 Views)
The obviation rule is the most applied rule in penal jurisprudential rules and plays a significant role in the scope of specified punishments (Hudud) and other punishments. The rule significance -which coincides to global criterion of human rights, the principle of human dignity, and guarantees the fair trial- explains that whenever the committing crime, the attribution of crime to the defendant or existence of other circumstances in proving the charge lies in doubt, the judge must interpret the laws in favor of the defendants.
In this article, moreover explaining the legal foundations and jurisprudential predicates of the rule, the definitions and the criterion of doubt is also studied to draw a framework for the rule. The legislator in Islamic Penal Act 2013 has stated the rule’s significance in s. 120 & 121 that contains the doubt in committing the crime and its’ circumstances, doubt in crime’s elements and the conditions of criminal responsibility.
Some jurists, specially the Hanafi jurists, have extensively applied the rule and others, such as Zaheri and Imami jurists, for example Ibn-e-Hazm Andolosi and Ayatollah Khoyee, have shown indecisions which are signify non acceptance. It must be studied that the rule significance has other thing than innocence presumption or not, or essentially we must suffice to it up to rational principles such as innocence principle. The undue limitation in obviation rule’s scope which arises from inherent human dignity of the defendants will have negative impacts undoubtedly, because the scope of the rule, moreover the procedural and substantive laws, establishes the right of evasion of punishment and the right of non-applying the specified punishment again for persons.
In this article, moreover explaining the legal foundations and jurisprudential predicates of the rule, the definitions and the criterion of doubt is also studied to draw a framework for the rule. The legislator in Islamic Penal Act 2013 has stated the rule’s significance in s. 120 & 121 that contains the doubt in committing the crime and its’ circumstances, doubt in crime’s elements and the conditions of criminal responsibility.
Some jurists, specially the Hanafi jurists, have extensively applied the rule and others, such as Zaheri and Imami jurists, for example Ibn-e-Hazm Andolosi and Ayatollah Khoyee, have shown indecisions which are signify non acceptance. It must be studied that the rule significance has other thing than innocence presumption or not, or essentially we must suffice to it up to rational principles such as innocence principle. The undue limitation in obviation rule’s scope which arises from inherent human dignity of the defendants will have negative impacts undoubtedly, because the scope of the rule, moreover the procedural and substantive laws, establishes the right of evasion of punishment and the right of non-applying the specified punishment again for persons.
Article Type: Original Research |
Subject:
Law
Received: 2018/10/26 | Accepted: 2018/10/26 | Published: 2018/10/26
Received: 2018/10/26 | Accepted: 2018/10/26 | Published: 2018/10/26
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