نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار، گروه حقوق جزا و جرمشناسی، دانشکده حقوق و علوم سیاسی، دانشگاه شیراز، شیراز، ایران.
2 طلبه سطح سه حوزه علمیه، حوزه علمیه قم، قم، ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
The ‘āqila (paternal kinsman)’s responsibility in paying dīya (blood money) is one of the endorsed Islamic rulings. The Islamic Penal Code does not contain any ruling regarding the possibility or impossibility of the āqila’s referring to the criminal to receive dīya. The generally accepted view of jurists is also non-referral. However, examining the evidences of both opinions in Imāmī jurisprudence proves the superiority of the evidences for the right of referring. Therefore, this article is intended to answer, with a descriptive-analytical method, the question: “According to the legal, rational, and conventional evidence, is the view on the permissibility of the ‘āqila’s referring to the criminal valid or the view on its impermissibility?” The finding of this article is that the weakness of sanad (chain of transmission) or denotation of the narrations corresponds to not referring, the lack of consensus of jurists, and also lack of conflict of the principle of “Man lahu al-ghunam fa-‘alayhi al-ghuram” (lit. He who owns the sheep must pay the fine) with the right of referring, on the one hand and on the other hand, the existence of narrations indicating ḍamān (liability) of the criminal, a rational principles such as the rule of the wizr (heavy burden of sins), the principle of itlāf (prodigality), the expiration of established meaning of the word ‘āqila, obligatory verdict of paying dīya by the ‘āqila, separation between obligation to pay and ḍamān, deduction of the priority of the right of referring the public treasury to the criminal, the principle of non-gratuitousness of paying dīya by āqila, and legitimacy of substituting insurance with ‘āqila in obligation to pay dīya, denote the conclusiveness of the reasons for the view on the right of referring. The result is that due to the endorsement of ‘āqila institution, faltering of its social acceptability in the present time and changing the manāṭ (basis of ruling) of its occurrence, it may be possible, by predicting the possibility of referring according to an unpopular view in Imāmī jurisprudence, to bring this endorsed jurisprudential verdict closer to the requirements of the time.
کلیدواژهها [English]
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