عنوان مقاله [English]
The hierarchical retaliation (qisas) is of the innovations of the Islamic penal code (codified 1392). The main question is if it is possible basically to implement the retaliation (qisas) in a place differing from the crime ones especially in the lower ranks or it must be done solely in the same place of crime. Replying this question, the study of the thoughts of Imamiyah’s jurisprudents (fiqh Jurists) and Sunni’s ones reveals that there is a difference between the maḍbūṭ crimes which it is possible to be implemented qisas in its accurate position without exceeding the limits and bounds and the crimes which are not maḍbūṭ. Some Islamic jurists have not accepted the hierarchical retaliation (qisas) in non-accurate crimes (not maḍbūṭ) with respect to the equity in qisas and believe that in these kinds of crimes, the financial compensation to be paid to the victim (Diyya) is preferable. But some others have accepted it with regarding evidences such as Ijmāʿ (Arabic: “agreeing upon” or “consensus”), the ’umumat (generality) relating to Qisa and etc. In the maḍbūṭ crimes, most of the Islamic jurists think it is possible to implement the hierarchical retaliation (qisas) because it is possible in these kinds of crimes to implement the equal retaliation (qisas) and there is no reason that the crime victim implements qisas in a different place. Of course, some Islamic jurists believe that there is no problem to carry out the hierarchical retaliation (qisas) in these kinds of crimes and it is stipulated to the consent of murderers. Examining the opinion of the legislature shows that it does not pay attention to these separation and all crimes but with the consent of the murderer are the subject of this kind of qisas.