مبنای حکم ثبوت قصاص در جنایات نسبت به جنین منجر به ایجاد آثار پس از تولد (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
طبق تبصره ماده ۳۰۶ قانون مجازات مصوب سال ۱۳۹۲، می توان مرتکب جنایات نسبت به جنین، منجر به ایجاد آثار پس از تولد را قصاص کرد؛ در حالی که طبق ماده، جنایات علیه جنین قصاص ندارد. این نکته سبب ایجاد این سؤال می شود که آیا تناقضی میان ماده و تبصره وجود دارد؟ و همچنین دلیل و مبنای ثبوت قصاص در موضوع تبصره با توجه به اشکالات و خلاء های آن مورد سؤال جدی است. این پژوهش توصیفی- تحلیلی و گردآوری اطلاعات آن کتابخانه ای است. یافته ها نشان می دهد که ماده و تبصره متناقض نیستند و وضع آن ها بر مبنای یک قول فقهی و برخی صورت های جنایت بوده است. گرچه وضع ماده 306 و تبصره آن اقدامی نوین در توجه به جنایات ایجادکننده آثار پس از تولد است که ثمره اش پیشگیری از جرم و تقویت جنبه بازدارندگی قانون می باشد، ولی باید نسبت به رفع اشکالات تبصره و از بین بردن مغایرت ها اقدام شود و خلأهای آن مورد توجه قرار گیرد.Explanation of Qisas' determination’s principles in crimes that lead to the creation of the effects of the crime after childbirth
The crime against the fetus is not limited to abortion; Rather, it has different types. One of these types is the crime that leads to the creation of works after birth. After years of silence about these crimes, in 2012, the legislator addressed them in a note to Article 306 of the Islamic Penal Code. According to this note, there is a possibility of retribution for committing crimes that lead to the creation of works after birth; This is even though in the article itself, the proof of retribution in crimes against the fetus is ruled out. This point causes the question of whether there is a contradiction between the article and the note, or whether the legislator has excluded these crimes from the scope of Article 306 for some reason, and also the reason and basis for proving retribution in the note, considering its flaws and gaps. It is a serious question. The information in this research was collected by searching library sources and analyzed in a descriptive-analytical way. The findings show that there is no contradiction between the article and the note and their status was based on jurisprudence and some forms of crime. Although the enactment of Article 306 and its note is a new measure regarding crimes that lead to the creation of effects after birth, and its fruit is to prevent crime and strengthen the deterrent aspect of the law, it is suggested to take measures as soon as possible to fix the problems of the note and eliminate the contradictions. It should be provided and its loopholes should be taken into consideration by the legislator.1. Introduction The crime against the fetus includes abortion and other operations; It means that there is a possibility that the fetus will be aborted or some other effect will appear in it due to the crime against the fetus. Based on this, as a result of crime, we may witness the emergence of work after birth. After the birth of the crime against the fetus, it is subject to abortion. In 2012, the legislature enacted Article 306 and its following note regarding the punishment of crimes against the fetus. In general, this article is about crimes against the fetus, and the note is responsible for stating the verdict of committing a crime that causes effects after birth. According to this note, there is a possibility of retribution for committing crimes that lead to the creation of works after birth; This is even though in the article itself, the proof of retribution in crimes against the fetus is ruled out. This point causes the question of whether there is a contradiction between the article and the note, or whether the legislator excluded these crimes from the scope of Article 306 for some reason, and also the reason and basis for proving retribution in the note, considering its flaws and gaps. It is a serious question. MethodologyThe information in this research was collected by searching library sources and analyzed in a descriptive-analytical way. Results and DiscussionThe provisions of the article and the note of article 306 are not in conflict with each other; Rather, in the article, the punishment for crimes whose result appears in the fetus is stated, and in the note of the article, the punishment for crimes resulting in the creation of effects after birth is mentioned.The problems with the note related to the existence of the clause "having the ability to continue life" and the ruling to prove retribution for crimes lead to the creation of birth defects, and in all the different forms of crimes against the fetus, due to the lack of a spiritual element, it cannot be accepted. Based on jurisprudence and legal principles, there are also gaps in the note, which include: the existence of ambiguity about the adverb "after birth", the lack of attention to the punishment of crimes caused by which the disease is eventually cured, the lack of clarification regarding the classification of diseases. Based on their nature, the existence of ambiguity regarding the inclusion of the note regarding infants without independent life and the existence of ambiguity regarding the inclusion of the note regarding laboratory and frozen embryos and genetic manipulation of sex cells that lead to defects or death after birth. ConclusionsEven though the legislator's action in establishing Article 306 and its note is a new and admirable step in considering the crimes that lead to the creation of works after birth, it is suggested that as soon as possible, to fix the problems, to fully adapt the provisions of the note to the famous saying of jurists and eliminate Necessary measures should be taken for discrepancies. Also, the proposed legal loopholes should be taken into consideration by the legislator so that necessary decisions can be made regarding them. The suggested text for amending the note is as follows: "If a fetus is born alive and the crime before birth leads to its defect or death after birth, the retribution is fixed, but if the defect was created during the fetal period and after birth only appears in such a way that it is considered part of birth defects, retribution is not established, but its punishment is determined according to Article 720 of the Islamic Penal Code. Selection of ReferencesAkrami Ruhollah, An Analysis on the Jurisprudential and legal requirements determination of retaliation in abortion (1394). Medical Law Journal. 9 (33):pp.151-173.Aghaie-Nia Hossein, Criminal Law Crimes Against Persons (1399). Tehran: Mizan.M.M.Sadeghi Hossein. Offences Against Physical Integrity Of Persons (1399). Tehran: Mizan.Hajidehabadi Ahmad. Offences Against The Person (1397). Tehran: Mizan.Najafi, Mohammad Hassan, Saheb Javaher (1404), Jawahir al-Kalam, Beirut: Dar Al-Ihyaa Al-torath Al-Arabi. [In Arabic].Ameli, Zein Al-Din b. 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