نقدی بر نظریه فقهی کفایت پنجاه سوگند توسط مدعی در قسامه (مبانی فقهی ماده ۳۷۷ لایحه قانون مجازات سال ۱۳۹۰)

Abstract

Qasāma is one of the proofs for homicide, which will be reliable in case of the existence of lawth (strong suspicion). There are two major views on how it is implemented. In sum, the first view deems as necessary swearing fifty oaths by fifty people; however the second view deems as sufficient swearing of fifty oaths by the claimant for proving the crime. The second view is a generally accepted fatwā and the first one is a rare fatwā theme. According to article 248 of the Islamic penal code passed in 1370 sh/1991, the generally accepted view dominated; however, in 1380-81 sh/2001-2002 upon the amelioration of the Islamic penal code, this rule was annulled by the fatwa of the Supreme Leader, and for proving homicide, the legislator deemed as necessary the swearing oaths by fifty people without repeating the oath. In the penal code passed in 1390 sh/2011, this same basis dominates. It is attempted in this article to examine the legal and judicial basis of article 377 of the ameliorated law. The writer believes that, with respect to some proofs existing in the evidences, even if the second view has strong foundations, qasāma is not a merely devotional institution; rather, the legislator has intended it in terms of intermediation and, if necessary, he can change its quality.