Volume 16, Issue 57 (4-2022)
MLJ 2022, 16(57): 80-95 |
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Arzhang A, Kalantari Khalilabad A, Rahmat M R, Shaker Ashtijeh M H. The Injury of Bone Cracking: The Concept and Principle of Monetary Compensation Resolving the Legislative Equivocation in the Light of Proportion Principle. MLJ 2022; 16 (57) :80-95
URL: http://ijmedicallaw.ir/article-1-1280-en.html
URL: http://ijmedicallaw.ir/article-1-1280-en.html
Ardavan Arzhang1 
, Abbas Kalantari Khalilabad1 , Mohammad Reza Rahmat2 , Mohammad Hosein Shaker Ashtijeh * 2
, Abbas Kalantari Khalilabad1 , Mohammad Reza Rahmat2 , Mohammad Hosein Shaker Ashtijeh * 2
1- Department of Islamic Jurisprudence and Law, Faculty of Theology and Islamic Studies, Ayatollah Haeri University, Meybod, Iran
2- Department of Law, Faculty of Theology and Islamic Studies, Ayatollah Haeri University, Meybod, Iran
2- Department of Law, Faculty of Theology and Islamic Studies, Ayatollah Haeri University, Meybod, Iran
Abstract:
Background and Aim: Bone-crack is an injury known as "Sad’" in Islamic jurisprudence. Medically, this injury is defined as a type of fracture. Distinguishing this injury from other types of injuries and finding its examples are necessary because each bone injury leads to a different kind of compensatory damages.The amount of damages for bone crack is determined as a proportion of Diyah and functions as the standard for fracture injury although fracture is of two types of repairable and irreparable with different amounts of damages. Failure to determine which one of repairable and irreparable fractures is the standard has resulted in legislative equivocation.
Method: This is a descriptive-analytical study and is conducted in a documentary method and by note-taking.
Ethical Considerations: This study has been done with adherence to the values of honesty and reliability.
Results: The findings of this study indicate that some kinds of fractures in medicine correspond with bone cracking and will be subject to its rules and effects. For the case of legislative equivocation, a solution can be sought in light of the principle of proportionality.
Conclusion: Bone injuries like hairline cracks and partial bone fractures are two examples of bone cracking. According to medical findings, bone cracks, greenstick fractures and intra-articular fractures conform to the definition of the injury in Islamic jurisprudence and thus are subject to the rules of bone crack. The Islamic Penal Code has attempted to determine the damages of bone crack injury as a single principle, however, after examining it from the perspective of Islamic narrations and Islamic jurisprudence; we came to this conclusion that there is no correspondence in some cases between the statute laws and the narrations. In the light of the principle of proportionality, it is possible by categorizing cracking injuries into repairable and irreparable to help to determine the amount of compensatory damages based on the amount stipulated in similar cases of fracture injuries as the standard and to remove the legislative equivocation.
Please cite this article as:
Arzhang A, Kalantari Khalilabad A, Rahmat MR, Shaker Ashtijeh MH. The Injury of Bone Cracking: The Concept and Principle of Monetary Compensation Resolving the Legislative Equivocation in the Light of Proportion Principle. Medical Law Journal. 2022; 16(57): e6.
Method: This is a descriptive-analytical study and is conducted in a documentary method and by note-taking.
Ethical Considerations: This study has been done with adherence to the values of honesty and reliability.
Results: The findings of this study indicate that some kinds of fractures in medicine correspond with bone cracking and will be subject to its rules and effects. For the case of legislative equivocation, a solution can be sought in light of the principle of proportionality.
Conclusion: Bone injuries like hairline cracks and partial bone fractures are two examples of bone cracking. According to medical findings, bone cracks, greenstick fractures and intra-articular fractures conform to the definition of the injury in Islamic jurisprudence and thus are subject to the rules of bone crack. The Islamic Penal Code has attempted to determine the damages of bone crack injury as a single principle, however, after examining it from the perspective of Islamic narrations and Islamic jurisprudence; we came to this conclusion that there is no correspondence in some cases between the statute laws and the narrations. In the light of the principle of proportionality, it is possible by categorizing cracking injuries into repairable and irreparable to help to determine the amount of compensatory damages based on the amount stipulated in similar cases of fracture injuries as the standard and to remove the legislative equivocation.
Please cite this article as:
Arzhang A, Kalantari Khalilabad A, Rahmat MR, Shaker Ashtijeh MH. The Injury of Bone Cracking: The Concept and Principle of Monetary Compensation Resolving the Legislative Equivocation in the Light of Proportion Principle. Medical Law Journal. 2022; 16(57): e6.
Type of Study: Original Article |
Received: 2020/11/24 | Accepted: 2021/05/18
Received: 2020/11/24 | Accepted: 2021/05/18
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