Comparative Investigation of Death and the Escape the Person Committing Murder in Iranian Criminal Law and That of Islamic Sects

The primary right of the next of kin in murder is nemesis, but if permanent obstacles (resulting in death) or temporary (if escape) are created in the process of enforcement of the legal right, there are differences regarding the existence of the secondary right (Blood money) and whether the next to kin have right to get blood money from the murderer’s property or his/her relatives, or from treasury. Famous jurisprudents believe that because the punishment for premeditated murder is nemesis and with the death of the murderer, nemesis cannot be pursued, blood money cannot be replaced with nemesis. But according to narrations, the only exception of this decree is related to the state in which the murderer flees and access to him/her is impossible until his/her death. In this case, blood money is get from his/her property and in the absence of the property, blood money is taken from his/her relatives (Shaikh Tousi, Shahid Avval, & Imam Khomeini). The murderer should be retaliated or pay blood money based on the selection of the next to kin. Therefore, regarding the murderer’s escape, the next to kin can select blood money. A minority of jurisprudents believe that firstly the right of the next to kin is retaliation, and there is no selection between retaliation and reception of blood money, but in case of the murderer’s escape, they explicitly declare that the retaliation is changed into blood money and the next to kin can demand it (Khuei, 1976). Article 260 of the Islamic Penal Code Act approved in 1991 states that the death of a murderer (after his/her escape) is the condition of the change of retaliation into blood money. Thus, when the murderer is alive, the next kin or the government cannot pay blood money from treasury. This case is for the condition when the family of the murdered person has a lot of problems because of losing a member of their family. In the Article 435 of the Amendments to Islamic Penal Code approved in 2013, some problems were amended. This article states that in case of not fulfilling retaliation due to each cause such as not accessing the murdered, the right of retaliation is changed into reception of blood money. In the jurisprudence of other Islamic sects such as Shafei and Hanbali agree with the jurisprudence of Imamyah’ idea and believe that each condition for not fulfilling retaliation results in the change of retaliation into blood money. Abu Hanifeh and Maleki famously believe that in case of not fulfilling retaliation, paying blood money is removed and no payment form the murderer’s property is pay event though in escape, the change of retaliation into blood money is possible in case of the murderer’s acceptance.

کلیدواژه ها:

Murder ، Murderer ، Death ، Escape ، Blood Money ، Retaliation