Evaluation of the criminal policy of the Islamic Republic of Iran in the criminalization of Moharebeh, Basic and implementation challenges

فقه و اصول (Fiqh va uṣūl)

Articles in Press, Accepted Manuscript, Available Online from 11 June 2024   

Document Type: Original Article

DOI: 10.22067/jfiqh.2024.86395.1729

Author

Mostafa Nasiri^*

Assistant Professor of Jurisprudence and Law Department of Shahid Motahari University

Abstract

The penal policy of the Islamic Republic regarding crimes against security expresses the twin concerns of adhering to Sharia and ensuring the security. The actions taken by the legislator in criminalizing crimes against security which are categorized under ''Hodoud'' in the Islamic Penal Code of 2012 show significant progress in this field comparing to the previous acts, however, there are still significant challenges in this law regarding to to "Ifsad" and "Baghy". In addition to the above cases after more than ten years from passing the criminal code, there important problems in criminal cases have been found that must be resolved in the following legislations. Therefore, the basic issue is to explain the most important challenges in the path of principled and efficient criminalization in the realm of Moharabah.

In this research, taking into account the opinions of the early and late jurists in Moharebeh, the most important problems in the current laws including the condition of drawing a weapon as a circumstance in Moharabah, the ambiguity of the law in cases where the perpetrator's intention is directed at a specific person, the failure to discuss cases where there is no direct relationship between the perpetrator's action and result of the crime, and ambiguity in consideration of smugglers and armed bandits mentioned in Article 281 as Mohareb has been examined.

Keywords

Moharabah; crimes against security; problems of criminalization; ambiguities of legislation; jurisprudence challenges

References