اعتماد به قاضی (تحلیل مادۀ728 قانون مجازات اسلامی بر مبنای نظریات فقهی شورای نگهبان)

  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.