TRUSTING THE JUDGE; ANALYZING ARTICLE (728) OF THE ISLAMIC PENAL CODE ACCORDING TO THE GUARDIAN COUNCIL'S FAGHI VIEWS

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ELHAM GHOLAMHOSEIN

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Journal: Journal of Judicial Law Views Year:2012 | Volume:17 | Issue:57 Page(s): 25-42

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Information Journal Paper

Title

TRUSTING THE JUDGE; ANALYZING ARTICLE (728) OF THE ISLAMIC PENAL CODE ACCORDING TO THE GUARDIAN COUNCIL'S FAGHI VIEWS

Author(s)

ELHAM GHOLAMHOSEIN | Issue Writer Certificate

Keywords

TAZIRQ2

SUSPENSIONQ1

DIMINUTIONQ1

PROPER PUNISHMENTQ2

PERSONALIZATIONQ2

SOCIAL DEPRIVATIONQ2

RULING PRINCIPLEQ2

PENAL ALTERNATIVEQ2

GUARDIAN COUNCILQ2

Abstract

As a legal point of view, article (728) of Islamic Penal Code has a special position in the TAZIRat Act. This article rules the whole TAZIRat as a principle. After a proper understanding about this article, a new theory will govern the "Penalty" principle in Iran penal system, which is the theory of "expediency-tendency" in TAZIRat. According to this theory, the legislative has precisely provided the maximum punishment in TAZIRat and the judge can by no means issue a verdict beyond these legal provisions. But in determining the minimum punishment, changing the punishment into other penal, the judge has a wide discretion. In fact, this is the judge who must consider the exact position of the criminal for ruling "a proper" punishment; and if he doesn't find an expediency in TAZIR or find an expediency in TAZIR, he can use a PENAL ALTERNATIVE. The expediency is based on correction and deprivation of a criminal from committing a crime. The true understanding of this theory depends on reconsidering the cause of enactment of this article and its position in the legal system which is "intentionally" or "by expediency" forgotten.

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APA: Copy

ELHAM, GHOLAMHOSEIN. (2012). TRUSTING THE JUDGE; ANALYZING ARTICLE (728) OF THE ISLAMIC PENAL CODE ACCORDING TO THE GUARDIAN COUNCIL'S FAGHI VIEWS. JOURNAL OF JUDICIAL LAW VIEWS, 17(57), 25-42. SID. https://sid.ir/paper/217878/en

Vancouver: Copy

ELHAM GHOLAMHOSEIN. TRUSTING THE JUDGE; ANALYZING ARTICLE (728) OF THE ISLAMIC PENAL CODE ACCORDING TO THE GUARDIAN COUNCIL'S FAGHI VIEWS. JOURNAL OF JUDICIAL LAW VIEWS[Internet]. 2012;17(57):25-42. Available from: https://sid.ir/paper/217878/en

IEEE: Copy

GHOLAMHOSEIN ELHAM, “TRUSTING THE JUDGE; ANALYZING ARTICLE (728) OF THE ISLAMIC PENAL CODE ACCORDING TO THE GUARDIAN COUNCIL'S FAGHI VIEWS,” JOURNAL OF JUDICIAL LAW VIEWS, vol. 17, no. 57, pp. 25–42, 2012, [Online]. Available: https://sid.ir/paper/217878/en

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