Analysis and pathology of article 286 of Islamic Punishment Law and it’s interpretive and reformative solutions | ||
| فصلنامه پژوهش حقوق کیفری | ||
| Article 1, Volume 12, Issue 46, September 2024, Pages 5-38 PDF (1.74 M) | ||
| Document Type: Research Paper | ||
| DOI: 10.22054/jclr.2024.73464.2577 | ||
| Author | ||
| jafar nezamolmolki* | ||
| Ph. D in Private Law , Professor of university and Attorney-at-law. | ||
| Abstract | ||
| aim Many articles have been written for analysis and disambiguition of Article 286 of Islamic Punishment Law; Nevertheless, based on lack of comprehensive analysis of ambiguities and defects and also lack of single study, consisting interpretative and implicative appropriate solution as to the ambiguities and reformative solutions for the defects, a new and comprehensive study is necessary; which in it, While avoiding repetitive content, by studying the jurisprudential and Quranic history of Ifsad fi al-Arth and considering the principles governing criminal law and the principles of Islamic criminal jurisprudence, as well as the executive aspects of the law, take action for the comprehensive and coherent analysis and pathology of ambiguity and defects in the article take action; In such a way that, the appropriate interpretative and effective solution for the existing situation as to the ambiguities and appropriate model to amend the law in relation to the defects of the law will be presented. Methodolgy In this article, based on library collection method and descriptive-analytical approach, In the first place we analyze and determinate concept and scope of Ifsad fi al-Arth, while comparing it with concept of Moharebah; Then, Article 286 of Islamic Punishment Law has been analysed, considering different doctorine on it. For this purpose, after analyzing ambiguities of the article, we study it’s defects. in the meantime we suggest effective and efficient solutions for the article, while interpreting and analyzing it. Findings Besides positive revolutions of article 286 of Islamic Punishment Law ,i.e independence of Ifsad fi al-Arth from Moharebah, limiting of Ifsad fi al-Arth to crimes with large effects, by determining special conditions for it, and ultimately public aspects of these crimes, ambiguity in concept and scope of Ifsad fi al-Arth compared with concept of Moharebah, relation of this article with The Law of Punishing Disruptors in the Economic System of the Country and it’s relation with other acts, considering its note, are ambiguities of this article; Also, generalizing title of Ifsad fi al-Arth to committed crimes in different fields, the same punishment for accessory and Perpetration and absense of distinction between concept and scope of accessory and captaincy are defects of mentioned article. Innovation 1-In respect of ambiguity at concept and scope of Ifsad fi al-Arth crimes, due to it’s relation with Moharebah crime, it seems that conceptual relationship between Ifsad fi al-Arth and Moharebah is absolute generality and peculiarity. 2- In respect of ambiguity at relation of article 286 of Islamic Punishment Law with The Law of Punishing Disruptors in the Economic System of the Country, based on the revolutions, in relation major disruption crimes which are considered Ifsad fi al-Arth , article 286 is governed on The Law of Punishing Disruptors in the Economic System of the Country. 3- In respect of ambiguity at note of article 286 of Islamic Punishment Law and it’s relationship with other penal codes, based on study of different status as to article 286, we prove that desired status, i.e conducts which are neither crimes in other penal codes nor Ifsad fi al-Arth criminalized in article 286, to be included in the note, are impossible and unjustifiable. 4- In respect of large scope of Ifsad fi al-Arth in article 286, which include crimes in different fields, as a defect, the best method for reforming the article is that to whether we consider it as a supplementary regulation, for definition without criminalizing, as to other penal codes, which criminalized Ifsad fi al-Arth but not defining it, or if legislator intend to criminalize Ifsad fi al-Arth, while abolishing all of the penal codes in this field, pass a comprehensive penal regulation on it. 5- In respect of the same punishment for accessory and captaincy and lack of conceptual and punishment distinction of them, interpretative solution is clearly in conflict with express provision of this article and cannot solve this obvious defects. So it is necessary to amend the law. conclusion Based on results of this research Ifsad fi al-Arth includes Moharebah and other crimes. Article 286 of Islamic Punishment Law governed to The Law of Punishing Disruptors in the Economic System of the Country and has considered some new characters and conditions for disruption in the Economic System of the Country. The assumption which note of article 286 is based on, i.e. some of criminal actions, which are neither a crime subject to other acts and nor Ifsad fi al-Arth in this article, is neither justifiable nor desirable and in result the note is redundant. Modification of article 286 as a supplementary regulation for other instance of Ifsad fi al-Arth, or comprehensive regulation with abolishment of former regulations in this field and also it’s modification as to considering different and suitable punishment for deputy of crime and perpetrator of it and finally distinction concept and scope of accessory and captaincy are necessary | ||
Highlights | ||
Translated References into English Ardebili, Mohammad Ali; General criminal law , fifty fifth volume,(Tehran: Mizan, 2020). [In Persia] Borhani, Mohsen; “Ifsad fi al-Arth: Conceptual Ambiguity, Practical Repercussion (Evaluation of Islamic Criminal Law Article 286)”, Journal of Criminal Law and Criminology Studies , Volume 2, Issue 3(2015). [In Persia] Jafari Moslem, Mojtaba and Aghababaei, Azim ; “The crime of major disruption of the economic system in the Law on Punishment of Disruptors of the Economic System and Article 286 of the Islamic Penal Code”, Journal of LEGAL REASEARCH , Volume 20, Issue 47(2022). [In Persia] Haji Dehabadi ,Ahmad;“Controversy regarding the deputy in corruption in the land, the subject of Article 286 of the Islamic Penal Code 1392”, Quarterly Journal Religion and Law، Volum 10، Issue 35(2022). [In Persia] Tavajohi,Abdul Ali; Pathology of the Islamic Penal Code approved in 2012, (Tehran, Judiciary, Press and Publishing Center, 2015). [In Persia] Rahbarpour, Mohammadreza and Noormohammadi, Hossein; “The legal - judicial challenges of the crime of corruption on the earth (Ifsad fi al-Arz) in the Islamic Penal Code 1392”, Journal of Criminal Law Research, Volume 6, Issue 22(1397). [In Persia] Samii Zenouz, Hossein and Habibzadeh, Mohammad Jaafar and Saber , Mahmoud; “ Analyzing the crime of "disrupting the country's economic system" by accepting the deposit of individuals in Iranian law”, Criminal Law Doctorines, Volume 13, Issue 11(2015). [In Persia] Sharifzad, Majid and Habibzadeh, Mohammad Jaafar; “ Investigating the relationship between the crime of "war" and "corruption on earth"; From jurisprudential foundations to judicial procedure”, Journal of Studies in Islamic jurisprudence and fundamentals of law, 16th year, issue 45(2022). [In Persia] Qorshi Banabi, Ali Akbar, Qamous e Quran, 7th Volum,(Tehran, Dar al-Kutub al-Islamiyah, 1992). [In Persia] Goldouzian, Iraj and Ahmadzadeh, Abolfazl; “ Examining the definition of the crime of war and corruption in jurisprudence and law with an approach to the proposed bill of the Islamic Penal Code”, Journal of Law, Volume 39, Number 1(2009). [In Persia] Mirmohammad Sadeghi, Hossein; Offences Against General Interest of the State”, (Tehran, Mizan Legal Foundation, 2020). [In Persia] Writers, Treasury of judicial inquiries (software),(Qom, Judicial Jurisprudence Research Center, 2006). HASHEMI, Seyed Mahmoud“Who is the Mohareb? And what is Moharebeh? (A discussion on understanding the issue of the Islamic punishment of Mohareb)”, Journal of Ahl al-Bayt jurisprudence, Issue 11 and 12(1997). [In Persia] | ||
| Keywords | ||
| Ifsad fi al-Arth; Analysis; pathology; defects; ambiguities | ||
| References | ||
ب. فارسی
Translated References into English Ardebili, Mohammad Ali; General criminal law , fifty fifth volume,(Tehran: Mizan, 2020). [In Persia] Borhani, Mohsen; “Ifsad fi al-Arth: Conceptual Ambiguity, Practical Repercussion (Evaluation of Islamic Criminal Law Article 286)”, Journal of Criminal Law and Criminology Studies , Volume 2, Issue 3(2015). [In Persia] Jafari Moslem, Mojtaba and Aghababaei, Azim ; “The crime of major disruption of the economic system in the Law on Punishment of Disruptors of the Economic System and Article 286 of the Islamic Penal Code”, Journal of LEGAL REASEARCH , Volume 20, Issue 47(2022). [In Persia] Haji Dehabadi ,Ahmad;“Controversy regarding the deputy in corruption in the land, the subject of Article 286 of the Islamic Penal Code 1392”, Quarterly Journal Religion and Law، Volum 10، Issue 35(2022). [In Persia] Tavajohi,Abdul Ali; Pathology of the Islamic Penal Code approved in 2012, (Tehran, Judiciary, Press and Publishing Center, 2015). [In Persia] Rahbarpour, Mohammadreza and Noormohammadi, Hossein; “The legal - judicial challenges of the crime of corruption on the earth (Ifsad fi al-Arz) in the Islamic Penal Code 1392”, Journal of Criminal Law Research, Volume 6, Issue 22(1397). [In Persia] Samii Zenouz, Hossein and Habibzadeh, Mohammad Jaafar and Saber , Mahmoud; “ Analyzing the crime of "disrupting the country's economic system" by accepting the deposit of individuals in Iranian law”, Criminal Law Doctorines, Volume 13, Issue 11(2015). [In Persia] Sharifzad, Majid and Habibzadeh, Mohammad Jaafar; “ Investigating the relationship between the crime of "war" and "corruption on earth"; From jurisprudential foundations to judicial procedure”, Journal of Studies in Islamic jurisprudence and fundamentals of law, 16th year, issue 45(2022). [In Persia] Qorshi Banabi, Ali Akbar, Qamous e Quran, 7th Volum,(Tehran, Dar al-Kutub al-Islamiyah, 1992). [In Persia] Goldouzian, Iraj and Ahmadzadeh, Abolfazl; “ Examining the definition of the crime of war and corruption in jurisprudence and law with an approach to the proposed bill of the Islamic Penal Code”, Journal of Law, Volume 39, Number 1(2009). [In Persia] Mirmohammad Sadeghi, Hossein; Offences Against General Interest of the State”, (Tehran, Mizan Legal Foundation, 2020). [In Persia] Writers, Treasury of judicial inquiries (software),(Qom, Judicial Jurisprudence Research Center, 2006). HASHEMI, Seyed Mahmoud“Who is the Mohareb? And what is Moharebeh? (A discussion on understanding the issue of the Islamic punishment of Mohareb)”, Journal of Ahl al-Bayt jurisprudence, Issue 11 and 12(1997). [In Persia] | ||
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