نوع مقاله : نقد رای دادگاه کیفری
عنوان مقاله English
نویسندگان English
Determining the precise legal nature and appropriate compensation mechanism for the costs of compulsory corrective surgeries, which are necessitated by medical negligence or non adherence to professional medical standards, presents a critical quandary at the nexus of medical jurisprudence and contemporary judicial practice. This difficulty manifests acutely in the tension between the statutory limits of Diyyah (blood money) or Arsh (discretionary damages) and the fundamental common law principle of full restitution of damages (integrae restitution). The prevailing judicial posture observed in several criminal courts has been to limit compensation to the award of Arsh, calculated strictly according to forensic medical expert evaluations.The present study undertakes a rigorous descriptive analytical investigation with a pronounced critical orientation, relying on extensive library research. Specifically, it scrutinizes four seminal judgments rendered by the Branches of Second Criminal Court in Isfahan, thereby challenging the jurisprudential underpinning of this established practice. The core empirical findings systematically expose that the examined judicial pronouncements are fundamentally flawed across three distinct dimensions:First – The Substantive Defect (Conflict in the Measure of Damage): The legal characterization of Arsh under the Islamic Penal Code pertains intrinsically to compensating for bodily impairment and the loss of physical utility. Conversely, the costs incurred for subsequent, corrective surgeries are demonstrably categorized as tangible material loss (damnum emergens) and consequential financial detriment directly attributable to the criminal act. The substitution of Arsh for these incurred expenses constitutes a misclassification of the damage type.Second – The Jurisdictional Defect (Exceeding Expert Mandate): The judicial reliance upon and endorsement of the Legal Medicine Organization’s determinations concerning Arsh for covering substantial surgical costs represents a clear instance of legitimizing an expert opinion that transcends its statutory boundaries (ultra vires). This practice inappropriately vests the expert body with quasi judicial authority to adjudicate on the quantum of liability, rather than merely establishing medical fact.Third – The Procedural Defect (Disregard for Due Process): The imposed treatment expenses borne by the patient possess an intrinsic civil and financial character, distinct from penal sanctions. Consequently, issuing a court order mandating payment for these costs exclusively within the restrictive procedural confines of a criminal complaint, while disregarding the formal prerequisites and procedural safeguards of civil adjudication, renders such rulings legally untenable
کلیدواژهها English
