Criminal Law
Mohsen Borhani; elaheh lotfalizadeh
Abstract
Due to the need to pay attention to dejudicialization and decarceration strategies, the repentance can be an effective tool to reduce the criminal population of prisoners. In 1392, the legislator for the first time made a general rule regarding the effectiveness of repentance in ta'zirat. Considering ...
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Due to the need to pay attention to dejudicialization and decarceration strategies, the repentance can be an effective tool to reduce the criminal population of prisoners. In 1392, the legislator for the first time made a general rule regarding the effectiveness of repentance in ta'zirat. Considering the legal changes and the approval of Article 115 of the Islamic Penal Code, it is important to address the realm of repentance in time and the periods in which this institution can be used. In this article, with a descriptive and analytical method and with a critical approach to uniform judicial precedent vote No. 813 of supreme court, regarding the time of acceptance of repentance, this claim is proved that based on jurisprudential and legal principles, not only before proving the crime, in all ta'zir crimes, the repentance of the accused will result in the cancelation of the punishment, but also after proving the crime and even at the time of Execution of punishment, this institution can be used.
Criminal Law
Mehrangiz Roustaie; hamed rahmanian
Abstract
The method of determining punishment for perpetrator of various crimes has always been the subject of theoretical discussions and legislative developments. In the latest developments resulting from The Law on Reducing the Imprisonment, passed on May 12, 2020, the Iranian legislatore has issued different ...
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The method of determining punishment for perpetrator of various crimes has always been the subject of theoretical discussions and legislative developments. In the latest developments resulting from The Law on Reducing the Imprisonment, passed on May 12, 2020, the Iranian legislatore has issued different rules on distinguishing between "different" crimes and non-different crimes in the case of material multiplicity of crimes, but refuses to set criteria for separating these two categories of crimes. This has led to a divergence of views and procedures in this regard. In this article, four criteria for identifying different crimes have been explained and criticized by descriptive-analytical method. Unification of criminal title, unification of legal element, unification of constituent elements of crime, unification of constituent elements and punishment. Finally, according to the advantages and disadvantages of each of these interpretations, the criterion of unification of the constituent elements and punishment in order to comply with the principles of criminal law and narrow interpretation of criminal texts, more than other interpretations, is considered a legislator and as an autonomous view, has been introduced.
Criminal Law
MohammadHadi Tavakkolpoor; Mohammad Amin Maleki
Abstract
Well-known Imami jurists believe that insanity after crime committing does not prevent the execution of punishment. Although this opinion has been questioned by some jurists and also the Iranian legislature has provided conditions for the possibility of executing this punishment in its criminal law, ...
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Well-known Imami jurists believe that insanity after crime committing does not prevent the execution of punishment. Although this opinion has been questioned by some jurists and also the Iranian legislature has provided conditions for the possibility of executing this punishment in its criminal law, but it seems that by carefully documenting the validity of this issue, more restrictions can be placed on the execution of insane punishment. This research has reached the conclusion by descriptive and analytical method and by examining the authenticity and signification of the relevant narrations that the narration indicating the punishment of the insane does not apply in terms of the type of crime committed and the time of proof of the crime, i.e. the time of correctness or insanity and the method of proof, And its inclusion in the commission of any crime and also the presumption of proving the crime at the time of insanity and in any way is questionable. And it seems that what can be used from the evidence is the permission to perform the whipping punishment, which has been proven by the person's confession at the time of his health; This is more compatible with the defendant's defense rights and with the rule of Caution in bleeding.
Criminal Law
majid sadeghnejad naeiny; Sakineh Khanalipour Vajargah
Abstract
Duress as one of the obstacles to criminal Liability is mentioned in Article 151 of the Islamic Penal Code. According to this article, in ta'zir, the duressor is sentenced to the punishment of the perpetrator. In Hodoud and Qesas, they are sentenced according to the relevant regulations. Although this ...
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Duress as one of the obstacles to criminal Liability is mentioned in Article 151 of the Islamic Penal Code. According to this article, in ta'zir, the duressor is sentenced to the punishment of the perpetrator. In Hodoud and Qesas, they are sentenced according to the relevant regulations. Although this article refers the duressor's sentence to the relevant regulations, but nowhere in the Islamic Penal Code is this presumption mentioned and in fact the law is silent in this regard.The main question of this research is what is the punishment of a duressor in Hodoud (for example, duress another to drink intoxicants)? In this article, we will analyze lawyers' opinions and jurists' fatwas in this regard with an analytical-interpretive method.The results of the research indicate that due to the silence of the legislator in this regard and also the lack of an explicit jurisprudential text or fatwa in this regard, different approaches to punish the duressor will be conceivable. Finally, it can be consider as a accessory and be punished by article 127 of the Islamic Penal Code
Criminal Law
ali saffary; Zeynab Laki; Razieh saberi
Abstract
The certainty and clarity of the criminal law is one of the requirements of the principle of legality and requires the definition of the crime with maximum clarity and accuracy by the legislature. However, the open texture criminalization and the widespread and criminal-administrative of the actus reus ...
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The certainty and clarity of the criminal law is one of the requirements of the principle of legality and requires the definition of the crime with maximum clarity and accuracy by the legislature. However, the open texture criminalization and the widespread and criminal-administrative of the actus reus implies a shift away from adhering to the requirements of the principle of legality.Relying on a descriptive-analytical method, the present study seeks to answer the questions that what are the contexts of degradation of the principle of legality and the tendency of legislators to legislative ambiguity and the sharing of law and administrative-executive approvals in explaining the components of crime?Findings show that today, Influenced by the ideas of the negation of absolutism such as postmodernism and pragmatism, criminal law moves toward relativism, flexibility, and socialization.. Also, new developments such as the expansion of the realm of criminal law in the light of the emergence of crimes outside the core of criminal law, such as preventive and technical crimes, with features like uncertainty and specialization and technicality, It has paved the way for the swamping and the regulation of criminal law. A change that is increasingly leading to Legislative parallelism and violations of the transparency and certainty of the law, as well as a fair warning to citizens.Finally, in order to strike a balance between the dynamics of criminal law and the rule of law, observance of criteria such as the definition of terms (legislative terminology) in the text of the law in order to determine the policy of administrative officials andAlso, determining the validity period of delegating the authority to define crime to administrative-executive texts can be effective in reducing the challenges of flexibility and becoming a legal pillar. regulation of the legal element..
Criminal Law
Hasan ghasemi Moghadam; zakiye mirseydi
Abstract
Committing a crime for self - defense is justified provided that, instead of defending against attacker, this crime is necessary for repelling the danger. In cases of escape possibility, because of elimination of danger repelling necessity, prohibition of battery and murder for “ nahye az monkar” ...
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Committing a crime for self - defense is justified provided that, instead of defending against attacker, this crime is necessary for repelling the danger. In cases of escape possibility, because of elimination of danger repelling necessity, prohibition of battery and murder for “ nahye az monkar” without permission of ruler, and respect for the attacker right to life, it is not justified to use deadly self – defense. Deadly self - defense refers to inflict grievous bodily harm, or using cold weapon or firearm thereby puts the attacker right to life at risk. This article studied the topic with descriptive analytical methodology, and concluded If the defender, despite of escape possibility, uses deadly self – defense, thereby commits an intentional crime against the person, considering Islamic jurisprudent bases of note 2 of article 302 Islamic penal code, legal interpretation, and case law of supreme court, he will be subject to the rule of the mentioned note. Studying the United States legal system comparatively also shows that in compliance with the “ duty to retreat “, deadly self – defense could not be used.
Criminal Law
hasanali moazenzadegan; Mohammad Matin Parsa
Abstract
Community service order is considered as the most prominent example of community-based punishments, entered in 2013 into the Iranian Legal and judicial literature. Therefore, it was expected legislator by a set of comprehensive statutes that are far from multiple challenges, created a context for effectiveness ...
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Community service order is considered as the most prominent example of community-based punishments, entered in 2013 into the Iranian Legal and judicial literature. Therefore, it was expected legislator by a set of comprehensive statutes that are far from multiple challenges, created a context for effectiveness of this new institution in line with achieving its main aim of reforming and reintegrating the perpetrator. Thus, the main question of the present article will be whether the set of statutes and rules and in accordance with the targets intended for community service order, so that it leads to the greater effectiveness of this concept? In this regard, the authors at first studied 150 related judicial decisions and identified the judges issuing them (purposive sampling) as the main actors in this study and the gathered the data afterwards by conducting semi-structured in-depth interviews gathered its data. The data indicated that there are legal challenges at the sentencing stage and subsequently after conviction. The research findings also show that Iran's macro-judicial policies related to community service order (reducing the punishment of Community Service Order as an alternative to imprisonment and considering it as a means to reduce prison population) were not commensurate with the inherent goals of this community-based punishment. And finally, it has paved the way for many challenges. This disproportionate targeting can be categorized into the following two classifications: “Failure to identify actors in proportion to the nature of the punishment”, “Failure to identify situations appropriate to the nature of the punishment”.
Criminal Law
Mehrangiz Roustaie; hamed rahmanian
Abstract
Law on reducing the punishment of Taziri imprisonment was enacted in May 12, 2020. This law has made important amendments to the body of Iranian criminal law. It could be addressed in two aspects: theoretical and practical. The second one- legislator's mean to reducing the criminal population- should ...
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Law on reducing the punishment of Taziri imprisonment was enacted in May 12, 2020. This law has made important amendments to the body of Iranian criminal law. It could be addressed in two aspects: theoretical and practical. The second one- legislator's mean to reducing the criminal population- should be considered in a result-based process after a reasonable period of time from its implementation. In theoretical view however these reforms can be the basis of more fundamental researches. The study of the recent enacted law shows an important change of criminal concepts that we call it Privatization of Criminal Law. Examples of this flow can be enumerated as follows: first, increasing the number of forgivable crimes. Second, The obvious effect of complainant's action on the nature of crimes. Third The possible effect of the complainant's action on the disappearing of the legal element of the crime. Fifth, complainant's role in determining the jurisdiction and limits of the authority of the reviewing authority. In this study, using the analytical method, the change in the attitude of the criminal legislator has been investigated. The findings of the study prove that the boundaries of criminal law are eroded and the concept of complainant is closer to the plaintiff and consequently the complaint to the petition, which occurred as a result of changing the legislator's position to the victim's place in criminal law.
Private Law
Siamak Rahpeyk; Mahdi Hadi
Abstract
According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last ...
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According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last will of the legislator on insanity. In total there are three criteria for insanity: Cognitive and Volition Criterion, customary criterion and companion and Contradiction Criterion. In the cognitive criteria, the main emphasis is on the the nature of the action. Volition criterion relying on individual control over their behavior. In the customary standard, since insanity is a customary concept, it is referred to the custom to diagnosis it. The psychiatric criterion can be analyzed in the context of a specific custom. In the companion criterion, the main emphasis is in relationship with insane person. At paradoxical level, attention is paid to behaviors that are not matched with mental health. The most appropriate solution for detecting insanity is attention to perception and failure of perception based on symptoms such as delusions and hallucinations.
Criminal Law
Ruhollah Akrami
Abstract
In regard to proving criminal cases, although each legal system has its own view over the validity of Confession, yet it has a special position in all legal system. Confession has an intrinsic value in different countries' regulations subject to the system of legal reasons, thus in some legal systems, ...
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In regard to proving criminal cases, although each legal system has its own view over the validity of Confession, yet it has a special position in all legal system. Confession has an intrinsic value in different countries' regulations subject to the system of legal reasons, thus in some legal systems, the judge is obliged to issue a judgment based solely on the confession for the absolute validity given to it by the legislator. Whereas in countries affected by the system of moral reasons, the confession itself is not valid and its value is as a means of assuring the judge of the event to which the confession has been made. In the present article, an attempt has been made to examine the validity of the confession in proving the case with a descriptive-analytical method. In this regard, it is examined whether a criminal judge can issue a sentence as soon as the accused confesses, and this validity remains until the judge is aware of its inaccuracy? Or that the sentence can be issued only on the basis of a confession when the judge is satisfied with it? And basically, this persuasion can be based on confession alone or does it need other supporting evidence? In order to answer these questions, while briefly studying the legal system of some Islamic countries, the issue has been specifically examined from the perspective of the Codified regulations, legal doctrine and judicial procedure of the Islamic Republic of Iran. The superficial conflict between the approach of the Islamic Penal Code and the Code of Criminal Procedure on this issue has added to the complexity of the issue, which makes it necessary to rely on interpretive methods to accept the relevant validity of the criminal confession.
Criminal Law
Behnam Ghaffari; Seyyed Hamid SHahcheragh
Abstract
One of the major problems at present in the branches of criminal Judgment's execution throughout the country, which have a significant volume of cases in these units, are cases involving default convictions where their judgments have not been actual notice. Such cases, which were not executed due to ...
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One of the major problems at present in the branches of criminal Judgment's execution throughout the country, which have a significant volume of cases in these units, are cases involving default convictions where their judgments have not been actual notice. Such cases, which were not executed due to the lack of recognition and access to the convicted person, now constitute a large part of the older cases of these branches. Certainly one of the most effective legal tools for overcoming such an undesirable situation is the regulations governing the execution prescription. However, due to ambiguity in jurisprudence over the concept of "definitive verdict", this legal instrument is not well used and the Legal Department of the Judiciary has not been able to assist in resolving this dilemma by providing a proper interpretation of the provisions. On the contrary, it has added to the ambiguity of the field with its controversial and critical advisory opinions. In this article, in addition to exploring the concept of the definitive verdict, numerous opinions of the legal department in this field will be criticized, and eventually, it will be shown that default judgments along with other judgments commonly accepted as definitive and non-appealable are subject to execution time-lapse set forth in Article107 of the Islamic Penal Act, 2013.
Criminal Law
Hassan Poorbafrani; asghar ahmadi; Javad Pouladi
Abstract
Regarding to acceptance of criminal responsibility of legal Persons and punishment determination for these Persons in Islamic Penal Code (IPC) approved in 2013. This question arises how to execute plurality of crime rules towards guilty legal persons similar to real persons. Answering to this question, ...
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Regarding to acceptance of criminal responsibility of legal Persons and punishment determination for these Persons in Islamic Penal Code (IPC) approved in 2013. This question arises how to execute plurality of crime rules towards guilty legal persons similar to real persons. Answering to this question, on hand is simple and on the other hand is difficult. It is simple since criminal responsibility of legal persons in Iranian Criminal Law has been accepted and also the real persons do not have distinctive character to allocate the concurrence rule for them. It is difficult since acceptance of criminal responsibility in Iranian Criminal Law is still young and transition from humanist look of Islamic Criminal Law to the persons, brings many challenges in the way of applying plurality of crime rules to the legal persons. On of the most important Challenges provided at article 20 of the criminal code is integration and extraneous nature of the legal persons punishment. These challenges put an stable obstacle in the way of execution of constructive plurality of crime rules. In addition to mentioned above, in accordance with article 134 of the criminal code related to the legal persons, execution of real plurality of crime rules has been met challenges such as not determination of aggravated punishment and then severity punishment and prosecutor’s authority in determination of tow punishment for legal persons. Above challenges would be made impossible execution of real plurality of crime rules on legal persons similar to real persons.
Criminal Law
Alireza Mirkamali; Mostafa Abdollahi Neysiani
Abstract
The basis of intentional crimes is the criminal’s will. A person who does not dominate his/her behavior should not be punished legally. One’s awareness to the element and circumstances of the crime, which is usually mentioned in the legal definition of crimes and is a part of the actus reus, ...
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The basis of intentional crimes is the criminal’s will. A person who does not dominate his/her behavior should not be punished legally. One’s awareness to the element and circumstances of the crime, which is usually mentioned in the legal definition of crimes and is a part of the actus reus, is not an exception to this rule. Punishing the accused is justified only when his/her awareness of the circumstances and the knowledge of the consequences is proved. These circumstances are sometimes confused with the conditions known as the "aggravating circumstances". In addition, there is a widespread disagreement about the impact of science on aggravated qualities in criminal law and doctrine. There are no specific procedures in the criminal law and doctrine regarding to the provision of a criterion for distinguishing between these two types of conditions, and the necessity of intention of the aggravating circumstances. While aggravating circumstances, and the necessity of intention may have a significant impact on criminal liability. In this article, the criteria for distinguishing between these two types of conditions is offered, in addition to noticing the suitable level of the aggravated punishment. Based on the general principles of criminal law, and according to Article 155 of the Islamic Penal Code and the judicial procedure in the United States, the necessity for intention to aggravating circumstances of crime, is strengthened for increasing criminal liability.
Criminal Law
Mehrnoosh Abozari
Abstract
Despite the adoption of differential criminal policy in the field of juvenile offenses against adults and the admission of people under the age of 18 as a group of children and adolescents under certain domestic and international laws, the age range and the commencement of criminal responsibility have ...
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Despite the adoption of differential criminal policy in the field of juvenile offenses against adults and the admission of people under the age of 18 as a group of children and adolescents under certain domestic and international laws, the age range and the commencement of criminal responsibility have remained controversial. From the point of view that the Atomic attitude towards the initiation of criminal responsibility is absolute in the girl of 9 years and in the 15-year-old boy of the whole lunar age, or that the formation of criminal responsibility and the readiness of the acceptance of punishment are gradual, Each stage of development is progressively graded, from the mild to the full scale.This is due to the author's view of the dominance of Aristotelian logic in the legislator's view that the adoption of a fuzzy view and application of this view in the discussion of the age of criminal responsibility can be categorized by criminal responsibility and the punishment of perpetrators by category. Shape their age and guide cohesion in legislator performance and judgment towards discriminatory criminal policy. By doing this research, the author is trying to investigate the feasibility and the way of applying fuzzy attitude in the age of criminal responsibility. Does this attitude contribute to the development of a child and adolescent support system and the integrity of the process? Therefore, while explaining the fuzzy attitude and the necessity of its application in different domains, its rules in the area of criminal responsibility are presented by fuzzy diagrams and fuzzy inference system, so that the necessity of applying fuzzy attitude and how to apply fuzzy calculations in drawing the relationship with age are presented. State the degree of criminal responsibility and the type of punishment and the benefits.
Criminal Law
majid sadeghnejad naeiny; Sakineh Khanalipoor
Abstract
One of the steps in the completing of criminal behavior which is response with criminal sanction is attempting. Attempting which is the closest stage to crime is defined as a stage which if there is no obstacle, the crime will end. Response to this behavior is done by various ways. The legislature In ...
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One of the steps in the completing of criminal behavior which is response with criminal sanction is attempting. Attempting which is the closest stage to crime is defined as a stage which if there is no obstacle, the crime will end. Response to this behavior is done by various ways. The legislature In the Islamic Penal Code 2013 in spite of later codes has tried to regulate the punishment of it to achieve a consistency in verdicts. Irrespective of this positive approach, sentencing in Attempting in Crime with Multiple and Discretionary Penalties are challengeable and bring about difficulties for judges. This research whit Descriptive-analytical method has implied the legislation and judicial problems of sentencing in Attempting and tried to answer to this question that how is the sentencing in Attempting in Crime with Multiple and Discretionary Penalties. In this regard, there are several ideas which all of them concentrate on a special basis. These ideas are discretion of judge approach, the Criterion the most severe punishment and Criterion the mildest punishment. Findings of this study show that according to interpretive principles and focused on current ideas, about every crime which punishment is Discretionary, the judge has this discretion in attempting too. However, for avoiding different verdicts, the nature of committed crimes and criminal policy about them must be considered.
Criminal Law
farid mohseni; reza rahimian
Abstract
The new criminal laws that have been brought to the Islamic Penal Code by comparative and criminological studies are promising a new discipline in Iran's legislative and judicial criminal policy. Undoubtedly, the adherence of the judicial authority to each of the systems and practices of choosing the ...
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The new criminal laws that have been brought to the Islamic Penal Code by comparative and criminological studies are promising a new discipline in Iran's legislative and judicial criminal policy. Undoubtedly, the adherence of the judicial authority to each of the systems and practices of choosing the type and amount of punishment will have a fundamental impact on the criminal justice system and achieve its stated goals. The lack of comprehensive guidelines for determining punishment in the Criminal Code has led to the formation of non-consistent procedures in Iran's criminal tribunals, which not only resulted in the maximum and unjustified use of penalties such as imprisonment, but, depending on the kind of persuasive or exaggerated judgment, the issuing judge , Has led to the "happening of justice", while the type of crime and its effects are the same and the same. Hence, the principled and scientific procedure for the issuing of criminal sentences requires, on the one hand, comprehensive and precise review of the courts of appeals against the judgments of the first courts. On the other hand, at the level of legislative criminal law, the legislator should be in a set Use legal materials to determine the principles of the Code of Conduct for Determining Penalties to prevent unequal treatment in judicial procedures.
Criminal Law
Abbas Zera'at
Volume 70, Issue 55 , June 2006, , Pages 11-38
Abstract
Forgivable crimes are of complicated matters in Iranian criminal law because there is neither a credible criterion for their recognition nor a specific penal policy in this regard. According to the article 23 of the Islamic Penal Code, the forgiveness must be non-conditional, could not be revoked and ...
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Forgivable crimes are of complicated matters in Iranian criminal law because there is neither a credible criterion for their recognition nor a specific penal policy in this regard. According to the article 23 of the Islamic Penal Code, the forgiveness must be non-conditional, could not be revoked and divided, and could be assigned to another. However, there are issues to be examined; e.g., the nature of the forgiveness, the holders of the right, the impact of the right on prosecution, investigation and trial (before or after the conviction and enforcement of the sentences), the volition of the accused or convicted, its divisibility in case of multiple perpetrators, and multiplicity of crimes.
