§ 1. Concept and the punishment nature of criminal law of the Yemen Republic

The history testifies, that with state and right occurrence there is a punishment. Law enforcement bodies through punishment carried out the retaliatory function. The essence of this function was expressed in causing to the criminal of a pain and suffering.

Punishment influenced behaviour of other persons by threat of its application.

On the legislation of the Yemen Republic the big influence rendered the Moslem law. The Moslem law concept has been based on the doctrine which considered the right, first of all, as the religious phenomenon. Criminally-rule of law in the opinion of population broad masses acted as uniform rules of behaviour - as legal, moral and religious [1].

On UK JR punishment is natural reaction of a society to criminal actions in the course of which appointment retaliatory force of the state is realised. If socially dangerous act does not involve punishment, it is not considered a sign of concept of a crime. We believe, that the legislator concept "penalty" has replaced not with concept «the state compulsion», and concept «restriction or deprivation lawful, natural deaths of the condemned. Punishment under criminal law definition in criminal law JR as penalties reflects one of signs of this law and testifies to influence of the concept of the Moslem law according to which the punishment maintenance is settled by a penalty. Data understood are interconnected, that all history of their development in the criminal legislation of the Yemen Republic confirms.

The history of criminal legislation JR can be divided into five peridov:

The first period began with acceptance by the people of Yemen of Islam then the Muslim criminal law in its traditional kind (Sheriyat) operated, its sources were the Koran (contains statements of prophet Mohammed) and Sunna (legends about its acts and decisions).

The second period included two stages connected with a colonial epoch of Ottoman empire in Northern Yemen (1538-1635; 1872-1918) when operated osmanskoe criminal law in territory of Northern Yemen; it is connected with formation of an Anglo-Saxon colony in Southern Yemen (1839-1967). But in a colony Aden operated Criminal the code 1955 (Britain) which was holding good before acceptance UK NDRJ in 1976

The third period was marked by formation of the Yemen feudal monarchy (1918-1962) when the criminal legislation was based as a whole on norms of Muslim criminal law.

The fourth period is connected with reception by Yemen of the sovereignty in 60 - the beginning of 70th years of the XX-th century. The Moslem law doctrine has served in Northern Yemen as the basic source for the criminal legislation (UK 1970). In southern Yemen the criminal legislation of Narodnodemokratichesky republic Yemen (NDRJ) copied UK RSFSR 1960 NDRJ a vein under "socialist" laws. In item 38 UK NDRJ of 1976 such principles of criminal law, as legality, justice of punishment, equality before the law [2] have been reflected.

The fifth period is connected with association of Southern and Northern Yemen in the uniform state and formation of the Yemen Republic in 1990 After

Associations, up to 1994, in Yemen simultaneously operated different sources of law: in Northern Yemen - Islamic Sheriyat, in Southern Yemen - UK NDRJ 1996 which have tested influence Soviet criminal


Legislations that has caused essential distinctions at the decision of identical questions in territory of the Yemen Republic and became the paradoxical phenomenon.

Thereof in October, 1994 the Criminal code of the Yemen Republic based on norms of Islamic Sheriyat which operates now on all state territory of Yemen as a uniform and unique source has been accepted.

In articles 2, 3 Constitutions of the Yemen Republic (edition of 2001) are fixed, that Islam is the state religion, and Islamic Sheriyat - the basic source of the legislation, including criminal.

According to item 48 of Constitution JR punishment is appointed on behalf of the state and only on a sentence of court and applied to the person recognised in a statutory order guilty of committing a crime.

In criminal legislation JR, as well as in criminal legislations of the majority of the Arabian countries, it is not given definitions of concept "punishment", its signs are not listed also. This definition is insufficiently developed in the Muslim criminal legislation.

Punishments on UK JR essentially differ from punishments in UK the Russian Federation 1996 on the severity level, and also under influence forms on criminals. We recognise, that the legal nature and social essence of punishment are developed and opened in a science and reflected in the legislation of the European states and Russia in high enough level. At the same time various aspects of institute of punishment under criminal law in JR, also represent to feature of stages of its formation certain scientific and practical interest. [3]

Bases of operating criminal law of Yemen are established by the Constitution, according to it the criminal liability has personal character. No crime or punishment can be provided differently as in Sheriyat or the law. Criminal law JR has no retroactive effect (item 46). The punishment maintenance is constituted by retaliatory measures, it consists in provided UK JR restriction or the deprivation and freedom condemned and social censure.

Besides punishment, to the person who has made penal act, other measures of criminally-legal character can be applied: forced measures of medical character (item 104 UK JR), a confiscation (item 103 UK JR), educational measures and attraction to work (item 106 UK JR).

In the musulmansko-Arabian and Yemen criminally-legal literature there are attempts to treat concept of "punishment" through categories "huddud", "kisas" and "dija" according to the Koran and Sunnoj.

The majority of researchers of Muslim criminal law under "huddud" responsibility and punishment for the acts encroaching on the basic Islamic values (understand religion, a life, reason, continuation of posterity and the property).

Abdel-Kader Auda noticed, that punishment acts as punishment for disobedience to the legislator [4]. According to the author, category punishments "huddud" are established for the purpose of protection of a society and the general prevention. At awarding punishment the person guilty completely there are accurately fixed sanctions according to Sheriyat. The court cannot commute a penalty or replace with its another. Point of view Abdel-Kadera Auda about category punishment "huddud" is supported by Russian scientist L.R.Sjukijajnen [5]. S.A.Boronbekov believes, that "huddud" urged to protect Islam from defects by its clarification from crimes. However clarification is not an essence "hudduda" as it is reached through a repentance, instead of by execution of punishment of a category "huddud" [6 [7] [8]. "Kisas" are the punishments appointed for especially grave crimes, consisting in an encroachment for a life, health of other person. « Dija »is a full repayment (compensation for blood) which is applied as replacing punishment if for any reason use"kisas"for a premeditated murder or for deliberate causing of physical injuries is impossible.

In the legal literature also there is a concept "tazir", defined as the punishment which precisely has been not established in the Koran and Sunne, applied on judicial discretion taking into account harmony of punishment to a crime, the person of the criminal and circumstances of committing a crime. According to the theory of the modern Moslem law category punishment "tazir" is the form of reaction of a society on fulfilment of criminal action which pursues two overall objectives: requital and intimidation. «The basic lines of punishment represent


Exact expression of its purposes ». According to S.A.Boronbekova,« tazir »any serious offence connected with infringement of Muslim interdictions which sense consists in the general orientation of Islam, in particular, its legal principles and norms is provided for«, on


Protection of the basic values of Islam ». The similar point of view is stated by M.I.Sadagdara,"tazir"is the punishment which has been not provided on Sheriyat, but the judge at own discretion applies it as the basic or additional punishment [9]. As marks L.R.Sjukijajnen,« the theory of Islamic criminal law defines "tazir" as the punishment which precisely have been not established by the Koran, Sunnoj and applied for fulfilment of crimes which can mention the rights of private persons »[10]. On the given question Ahmed Fathi Bahnasi defines, that punishment"tazir"is an applied kind of punishment at judicial discretion, taking into account harmony of punishment to a crime, the person guilty and circumstances of committing a crime [11 [12] [13]. Abdurahman Salman Said considers, that« punishment under criminal law has strictly individual and public character and is applied particularly to the person who has committed a crime, and does not extend on other persons ». According to Ali-Hasan It al-is scarlet SHarafi, punishment under criminal law "tazir" has no painful character and is a direct consequence of aspiration of the state to correction condemned.nekotorye Muslim scientists suggest to discriminate social and legal nature of punishment of a category "huddud", "kisas", "dija" and "tazir".

The social nature is connected with imprisonment or restriction labour, imushchestennyh and other rights condemned which have religious-corrective influence on guilty of committing a crime in the course of its execution. The legal nature of punishment is regulated by criminal law, the criminal procedure, but does not contradict requirements of the Koran and Sunny [14]. Our way to opinion, punishments of categories "huddud", "kisas", "dija" and "tazir" carry out both legal, and social functions. Legal function is expressed that punishment represents itself as a measure of realisation of the criminal liability, social - that it represents means of crime control, protection of a society against criminal trespasses on its Islamic values.

By criminal legislation JR following signs of punishment are allocated:

1) on a crime made against values of Islam, there is a reaction of criminal law JR;

2) punishment under criminal law is applied to the physical person,

Committed a crime;

3) punishment is appointed and applied on a sentence shariatskogo


4) punishment involves a previous conviction;

5) punishment is connected with the deprivation of life or restriction of the rights and freedom of the condemned person;

6) punishment under criminal law is appointed on behalf of Yemen

Republics and only on a court sentence (item 47 of Constitution JR).

In the paragraph conclusion it would be desirable to underline, that the problematics of punishments in criminal law of the Yemen Republic for today is actual because punishment is considered the most effective criminally-legal means of crime control and blood feud, acts of terrorism as on nation-wide, so at the international level. Elimination of the blanks, concerning regulations of institute of punishment under criminal law, - one of the basic directions of the criminal policy of the Yemen state. The given problem can be successfully solved only within the limits of deepening of differentiation and an individualization of the criminal liability and punishment which do not exclude appointment of strict punitive measures to the persons making heavy and especially grave crimes, at relapse, etc.

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A source: HANTUSH SALEH MEHDI ABDULLA. KINDS of PUNISHMENTS ON CRIMINAL LAW of the YEMEN REPUBLIC And the RUSSIAN FEDERATION (rather-LEGAL ASPECT). The DISSERTATION on competition of a scientific degree of the master of laws. Kazan -. 2016

More on topic § 1. Concept and the punishment nature of criminal law of the Yemen Republic:

  1. § 3. The punishment purposes in criminal law of the Yemen republic
  2. § 1. Kinds of punishments on criminal law of the Yemen republic
  3. the Bases of softening of punishment under criminal law: concept, the legal nature, system, classification
  4. CHAPTER 3. Kinds of punishments on criminal law of the Yemen republic and criminal law of the Russian Federation
  5. § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law
  6. § 2. Concept of punishment of criminal law of the Russian Federation
  7. HANTUSH SALEH MEHDI ABDULLA. KINDS of PUNISHMENTS ON CRIMINAL LAW of the YEMEN REPUBLIC And the RUSSIAN FEDERATION (rather-LEGAL ASPECT). The DISSERTATION on competition of a scientific degree of the master of laws. Kazan -, 2016 2016
  8. CHAPTER 2. System and classification of punishments in the Criminal code of the Yemen republic and in the Criminal code of the Russian Federation
  9. § 2. Concept «efficiency of punishment under criminal law» and model of its estimation
  10. § 1. Essence of punishment. A punishment under criminal law and criminal liability parity