شمول قاعدة الدرء على رفع العقوبات التعزيرية للسرقة من وجهة نظر فقهاء الشيعة و السنة

Abstract EN

The rule of Dar’ is the one which is derived from the procedure of gratitude of the Islamic lawgiver in enforcing the Hadd punishments.

most Islamic jurists, both Shia and Sunni, agree on the abolition of the punishment of theft due to suspicion.

however, there is disagreement on the inclusion of the rule on the abolition of Ta'zir punishments.

considering the importance of the rule of Dar’ in criminal law, and considering that in Islamic law, based on the conditions of robbery, two types of punishment have been considered for it, in this research through descriptive-analytical method, different views on the inclusion of the rule on the punishment for theft has been investigated.

according to the result, most Shiite jurists have developed the circle of Hadd in the rule of Dar’ and have considered the scope of its application beyond the Hudud punishments to include Ta'zir.

but Sunni jurists have considered it alone with the same meaning of the term Hadd.

accordingly, in the crime of robbery, the punishment of which is hadd and Ta'zir, the Shiite view is that both types of punishment are avoidable in case of suspicion, and the Sunni opinion is that the rule removes only the Hadd punishment.