فهرست نشریات علمی دسترسی آزاد ایران

Background and Aim: According to Article 149 of the Islamic Penal Code, the loss of discernment or will when committing a crime exempts the perpetrator from punishment; but in practice, it is not possible to be sure about this situation and to use this legal article. Materials and Methods: This analytical-descriptive research aims to express the jurists of Islamic religions’ views about the effect of the lack of discernment and will at the time of committing a crime and the evidence to prove it. Conclusion: The jurists of Islamic religions agree on the necessity of exempting a criminal who lacks discernment or will at the time of committing a crime. However, the definition of mental disorder in the Shafi'i and Maliki religions is very general and similar to the signs of permanent insanity. It is possible to prove the momentary deterioration of the intellect through Qassamah from the point of view of Hanafi and Hanbali religions. The authority of the Islamic ruler to punish is only limited to mild ta'zir and diya, and this is evident in the majority of jurists’ statements. At the same time, disciplinary and preventive aspects should be included in the subsequent punishments. From this point of view, the punishments of imprisonment in a mental hospital, the requirement of treatment, payment of ransom, and exile are the subject of consensus among all jurists. The Imamiyyah jurists did not mention the proofs of the momentary deterioration of the faculty of discernment and only considered the issue of permanent insanity. About the way to prove this situation, it is also necessary for the legislator to adopt a suitable procedure in accordance with Islamic jurisprudence in order to provide the possibility of using Article 149 of the Islamic Penal Code.