Document Type : Original Article

Authors

• Hosein Ahmari ¹
• EBRAHIM KARIMI ²

¹ Azad Slamic University-Mashhad

² Edaryamoozshvparvaresh-daber

Abstract

One of the important issues about collection of diayh from the criminal who have committed a crime involving difference of diyah is impact of his/her consent to pay difference of diyah and him/her release from qisas. Most Shiite faqihs believe that criminal’s consent to pay diyah is necessary and that according to the Qur’anic verses and hadiths concerning discretionary nature of punishment of crimes involving qisas, the victim or his/her heirs are entitled to impose qisas on the murderer. According to this group of faqihs, if those entitled to impose qisas ask the criminal for difference of diyah, the latter shall have a choice between giving consent to pay such amount and not doing so. However, another group who invoke some of hadiths and doctrine of “la yabtal” hold that those entitled to impose qisas may choose between “qisas upon payment of the difference of diyah” and “obtaining of diayh from the criminal in absence of his/her consent”.  Iranian legislator had also adopted the opinion of the former group. However, the new penal code derogating from the majority opinion has adopted the latter opinion, not requiring consent of the criminal for payment of difference of diyah. This research exploring arguments of both groups demonstrated that the majority opinion of faqihs is firm and reasonable and the opinion of the other group and the legislator is based on acceptable proof.
 

Keywords

• Article 360
• intentional crime
• criminal’s consent
• difference of diyah
• discretionary and optional nature of qisas