نوع مقاله : مقاله پژوهشی
نویسنده
سالم افسری، استادیار، گروه فقه شافعی، دانشکده علوم انسانی و اجتماعی، دانشگاه کردستان، سنندج، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The issue of whether it is possible to commit the crime of murder by act of omission is a topic of discussion in Islamic penal jurisprudence, which has been concerned by jurists for a long time; that is, whether the crime of murder may be realized in certain circumstances by act of omission. This research uses the descriptive-analytical method to study the issue. The majority of Islamic jurists (Mᾱlkῑs, Shᾱfi'ῑs, Hanbalῑs, Imᾱmῑs, Zaidῑs, and Zᾱhirῑs), believe that it is possible to commit the crime of murder both through affirmative action and act of omission. In Hanafῑ school, Abu Yusuf and Muhammad believe that this type of murder is among the murders caused by reason; however, Abu Hanῑfa believes that the destruction of a human being by act of omission is not basically murder and is not liable to indemnification (ḍimān). Those who doubt the validity of act of omission as a material element of the crime of murder, state that act of omission and refusal are non-existent which cannot cause existence. Based on the findings of this research and available jurisprudential evidence, the belief that the crime of murder by omission is fulfilled in the case of intent to commit murder and the existence of a religious obligation indicating the performance of a duty/obligation and the abstained ability to perform the deed, are more consistent with the spirit of Shari'a, which among the existing views, this opinion seems preferable. Accordingly, if a person has a Shar'i/legal or contractual obligation, his refusal to fulfill this obligation is not just a pure act of omission, but rather, it is a type of breaching contract, that itself manifests as an act. In other words, omission of a pure act itself does not create criminal responsibility, and what is seen objectively is the human actions that have the form of an action. However, it is important to consider the subtle distinnction between abstaining and violating in this context.
کلیدواژهها [English]
)