CRIMINAL LAW DOCTRINES
Year:2014 | Volume:- | Issue:6|Papers Count:8

The terms "under surveillance" are the literal translation of the word "garde a vu" in French language that has been dealt whit in the law of A.D.K. which approved in 1378 and specially in the Bill of D. K and it refers to the stage of the criminal process that the suspected of the crime is in police custody (Restraining Justice). This phase of arrest, due to its special conditions, is the extraordinary important one towards the rights of the suspected of crime. Experience has shown that the rights of the suspected at this stage compared to other stages of criminal proceeding is being more exposed to violations as far as at some point the fate of criminal case in the relatively short time that the person is under the control of the police will be determined, especially in the ordinary crimes (General). Therefore, especially in recent decades, the attention of the legislatures of different countries have been paid to ordain precise regulations for the stage of under surveillance and several safeguards have been established to protect the rights of suspects. On the other hand, given that the holding the person under surveillance of the police for preliminary investigation, and quick act to preserve the causes and effects of crime, and preventing the consequences of widespread crime, especially in the anti-organized crime of terrorism and the security is necessary, the rights of the mentioned suspected in this step has been subjected to numerous exceptions. In this research the legal status of Iran and France (regarding the effect the law of 14 April 2011 of that country) and the innovations of Iranian Criminal Procedure Act and their differences have been discussed.

Revising the criteria of distinguishing of the sponsor in the linear accumulation the causes, the Islamic Penal Code adopted in 1392 has resorted to contrasted foundations that while opposing some of lawful and rational criteria, they contrast with some of the articles of this act too. Emphasizing on considering the various parameters for lightening the relationship of citation such as deliberating and intending of causes, time of effect and the time of their occurrence, have led to the adoption of regulations which sometimes the cause that precedes in effect and sometimes the cause that subsequent in occurrence and in some cases all causes are known as guarantee. This approach that accompany with a lack of true understanding of the nature of the relationship of citation has disturbed many of the concepts of criminal law, such as corporate, accessory and the concept of forcibility.

Inadequacy of administrative and civil sanctions in curbing risky activities of legal entities has made the legal systems such as of Britain -from 19th century- and recently Iran 1-2-1392- to recognize their criminal liability based on the reasons such as the nature of criminology, similarity of the principles of civil responsibility and criminal liability of these persons, more précising of the members in selection of directors, the difficulty of identifying the individuals who are guilty. But this liability is with this main question that what is the criterion of attributing a crime to a legal entity? How can the fact of fault be attributed to a fictitious thing? Legal doctrines regarding the qualification of the attributing of a crime a legal entity are not agreed on a single model. Some of these models, such as vicarious liability, consider the indirect responsibility for legal entity by resorting to the principle of representation. In contrast, some other models, such as the doctrine of assimilation and the doctrine of policy of the legal entity, consider this entity as a direct responsible for. Answering the mentioned questions and examine the approach of these two systems, this paper is based on the premise that that model of responsibility is more appropriate which founded on the systematic failure.

Studding and considering of issues based on model and pattern, not only would help systematic explanation of their evolution, but also provide the ground for understanding their conceptual and semantic evolutions and changes. Criminal justice for juvenile based on studding their issues- risk and criminal behaviors of children and adolescents- and their vulnerable and often damaged situation, have been the subject of deliberation and deferent policies so that it has also experienced the different kinds of response to crime and guiltiness. Undoubtedly, even though the selection of the desired model of response to delinquency of children is carried out based on inspiring sources of the criminal policy of the national realm, being familiar with the kinds of responses and their results and effects will not be useless. Without considering the dominant pattern of criminal policies of Iran about juvenile delinquents or thinking about a specific model in this regard, this paper explains the most important responses to the delinquency of children and states some of their results effects briefly.

The trafficking of human organs is incompatible with the human dignity and undermines the altruistic organ donation. So, globally, two strategies have been considered for combating it in several international and regional documents: the first is prohibition of trade and gaining profit through human organs and the second is the criminalization of trafficking of organs and prosecution of the perpetrators. Due to the increasing need of some patients to the kidney transplant, its providing through donation has been considered in Iran, but how to implement this policy by the government needs verifying, due to it may lead to organs trade. Need for organ transplant, the poverty of some organ donor, juridical permission of dealing organs, weakness of rules, and… have provided a good excuse for dealers to take action to smuggle organ and especially kidney, while it has not been foreseen the trafficking and smuggling of the organs as criminal in the Iranian legal system. Rectifying these shortcomings, this paper proposes that this trade and smuggling to be considered as criminal by the legislators and appropriate responses for the perpetrators, especially for the medical personnel be determined. It is evident that the real struggle with this phenomenon requires altruistic donation of organ donors for patients under the supervision of the health authorities and it can be done by establishing a national organization of organ transplant.

It is for a long time that the macro-economic crimes and the trial of financial corrupters have been propounded in mass media. Money laundering, as one of the organized crimes, plays a key role in continuation of original crimes. In reality, the perpetrators of the mentioned crimes can only benefit from the revenues of criminal activities through money laundering and perhaps invest in the continuation of illegal activities. However, the exact focus on the fact that why the money laundering is criminalized, and what necessities justify its criminalization have been less into consideration. Effects that there are in the nature of the crime of money laundering, such as damages to economic, social, and political security of the country justify the necessity of criminalization of money laundering, but if this necessity be placed in a particular model of criminalization, it can help better understanding the necessity of criminalization of money laundering. In fact, the reason of the necessity to this understand is the intangibility of the effects of the money laundering for the population in comparison with offenses such as murder, theft, etc. Hence, using Jonathan Shenshuk’s model of criminalization “refinement or filter” and adopting the processes of this model to the inner features of money laundering, this paper presents an analysis of the need for criminalization of money laundering

Increasing use of cheque as a commercial document has caused problems regarding its non-payment, thus, the legislature has attempted to curb these problems by using criminal tools. However, despite increasing of claims about the bad cheque, it seems that penal policies have been able to be useful in this regard. Recognizing the cheque commercial nature with the help of business rules, if the legislator supports this old Institution with a different approach, regardless of supporting document holder, the penal tools can have a proper place in removing the problems of cheque. Examining the views of legal scholars and the history of criminal provisions of the cheque and trying to recognize this entity as a completely independent commercial institution, this study has attempted to draw the correct method of entrance of penal rules in a homogeneous and effecting form and explain and clarify the capacities of civil and commercial sanctions in support of the nature of the cheque and the holder’s rights against criminal sanctions. Thus, it seems that commercial deprivation of the cheque rather than criminal sanctions can help preventing the issuance of bad cheque.

"New penology" in the contemporary penal policies concerns those criminal actions in which, the following certain political principles known as the "New Right" have caused approaches as the concept of the "crime risk" upon which the notice of the "risk danger" of offenses has been considered as the necessity of turning away from "rehabilitation" of offences. However, scientific studies show that if the political foundations are not considered in the penal policies in opposite of the "crime danger" of criminals, then, there would b no definite association between "crime danger" of offences and negation of their "rehabilitation". In some legal systems which are much less affected by such certain political principles we can see the dedication of the system of criminal justice to the necessity of "rehabilitation" of the criminals and at the same time paying attention to their "crime danger" and then to the formation of a kind of "based-danger rehabilitation" in which the "rehabilitation" of the offences in light of their "crime danger" is considered important than propounding the idealized views.