Jurisprudential Validation of the Theory of Sequential Guarantee of the Criminal and the Public Treasury in a Crime Less Than the Life Under the Assumption of Lack of Access to the Criminal

Document Type : Original Article

Author

Higher Institute of Fiqh and Islamic Sciences

10.22091/rcjl.2025.12018.1114

Abstract

Undoubtedly, the person responsible for paying blood money in a crime less than life, assuming that the victim is not accessible, is an important and practical issue and one of the challenging issues in the field of jurisprudence and law. This research aims to explore the validity of the theory of collateral security for the victim and then the treasury in a crime less than life, assuming that the victim is not accessible, which was accepted by the legislator of the Islamic Republic in the Islamic Penal Code approved in 1392 in Articles 435, 474 and 475, within the framework of Islamic jurisprudence knowledge, by referring to library sources and using an ijtihad analytical method. The problem is that although there are several theories among jurists, the legislator's theory does not correspond to any of them; therefore, a documented examination of the legislator's theory is essential. The only reason for this theory of narrations can be that in this article, 6 narrations were mentioned. None of them indicated a general rule regarding the place of discussion. Yes, in some cases, the aforementioned theory can be accepted; such as the crime of a blind person, a dhimmi person lacking sane, and the appearance of madness after murder. Of course, the latter case is outside the scope of the discussion, which is that crimes are less than the soul. It is worth noting that the author's innovation in the present article is firstly to pay special attention to narrations to prove the aforementioned theory, which has been less addressed, and then to criticize the legislator's theory. After conducting an investigation, it was concluded that the legislator's theory is not correct in the context of the discussion.

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History

  • Receive Date: 30 December 2024
  • Revise Date: 23 April 2025
  • Accept Date: 08 May 2025

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