CRIMINAL LAW DOCTRINES
Year:2016 | Volume:- | Issue:11 |Papers Count:8

It is possible to be determined some of the fundamental principles of the criminal law by considering the established (accepted) concepts of the civil code. Among this, with regarding this issue that the common aspect of every “ crimes against property” is that all of them lead to the violation of the property rights and benefits of persons, these crimes has a close relationship with the concepts of the civil code (specially contract rights or property and possessive rights). Therefore, for convicting someone who commits one of these crimes, firstly, with using the concepts of the civil law, it should be proved that someone else has a financial right and this right has been violated by the accused. There are three main opinions about this issue if the accepted concepts of the civil code in determining the criminal subjects has role or not. Meanwhile analyzing these three opinions, this paper has tried to examine the most important instances of the relationship between the financial crimes with the concepts of the civil code.

The criminal code of disrupters in the economic system of the country to confront economic offenders is codified in 1369 by the Islamic Consultative Assembly (Majles-e Shura-ye Eslami). Clause “ h” of Article1 of this law has criminalized accepting deposit of persons leading to waste of people’ s property or Intervention in Economic System. The conditions for occurring this crime, the conditions for inclusion of the title of disturbing peace and order in the land (fassad fil-arz) for the conducts of perpetrators and numerous abstract of the mentioned title with the offensive titles such as fraud and illegal bank activities has doubts which it requires a critical and comprehensive analysis. This note is going to answer this principal question if it can be adduced before court while it contains the offensive titles such as the intervention in the economic system of the country through Accepting Deposit of Persons. The analysis of the rules and the detailed discussions in the Islamic Consultative Assembly (Majles-e Shura-ye Eslami) and studying Precedent (judicial precedent) make obvious that such available doubts in the definition of some keywords in the criminal code of disrupters in the economic system of the country and being difficult to find the factors which have comprised the mentioned crime by judicial authority, the offensive title included in Clause “ h” of Article 1 of the mentioned rule with having the offensive titles in aggravating the punishment of perpetrators of bribery, defalcation and fraud (codified 1367) and also Article 286 of the criminal penal code (codified 1392) cannot be adduced in judiciary. Therefore it is suggested the decriminalization of it.

In most cases, the criminal procedure starts with interference of judicial officers and successively police investigation process. In this step, the judicial officers (as those in the frontier to explore the possible crime) should get involve with their legal duties (meanwhile understanding the importance of carefulness and speeding up in determining the situation of a person who is under supervision) because they confronts the person who is under supervision and not the accused person. Therefore, they should observe the Requirements originated from his citizenship rights. Although it has passed more than one decade of codifying the law of respect to the legality liberty and protection of citizenship rights (codified 1383) and the beginning of the discourse of the citizenship-centered and protection of his rights, independently, it has not been performed any research with concentering on this step of criminal procedure to answer this question if the judicial officers do not protect these rights, what reaction they must be confronted. The all responses to the violation of the citizenship rights of persons who are under supervision in the criminal policy of Iran can be divided into two main types: first, aggravating or sever sanction-the first generation-which contains criminal and administrative-disciplinary responses and also the soft sanctions-second generation-which are the invalidity of investigation and compensation of crime victim. Due to Article 7 and 63 of criminal procedure of Iran (1392), it is necessary to study this issue more. Therefore, the following note tries to study every response.

In spite of specifying Article 39 of Islamic Penal Code (1392) to coercion to perform an act induces crimes upon that person who is coerced in to performing actions, the regulation of most cases is unclear. But it should be mentioned that in a situation which a person under the coercion of someone demanding the suicide, based on tools of duress (coercion), sometimes it is caused to relate the result (murder) to coercer and sometimes he has no legal responsibility for killing and only will be convicted to taz’ ir punishment. Due to this, the duress to perform actions lead to crimes (in this paper the murder of the coerced) in all cases, will not be included in Article 39 of Islamic Penal Code. In other words, in some situations, the occurred murder is attributed to the murdered person and the coercer has no legal liability. One of these cases as a sample is a situation which the threatened person with knowledge and notice commits an action which surely makes death. The level of risk or danger is not to extent that appropriate suicide and the murder of the coerced relates to the coercer. The present article with considering the legal ambiguities and different attitudes of Islamic jurists (fuqaha) tries to determine the law of several aspects which the duress (coercion) causes the coerced killing. Therefore, with paying attention to the issue of the coercer’ s demand, this note studies and criticizes the title of the duress (coercion) to suicide and the title of the duress to perform actions lead to the coerced killing in two discourses in the legal system of Iran.

For the inefficiency of the penalties of imprisonment for the rehabilitation of the offenders and prison being a breeding ground for crime and its great expense, it is considered alternative to imprisonment in Islamic penal code that it does not mean to cancel all kinds of imprisonments especially short-term imprisonment. According to it, it has been studied in Article 70 of the Islamic Penal Code of Iran that the execution of imprisonment less than 91 days (taz’ ir punishment) for offenders who are contempt and violates from the execution of punishment instead of imprisonment. From the other side, for mitigating the punishment because of the lack of explicit mentioning in law, there is no obstacle to establish enact and execution of the imprisonment less than 91 days. In addition, when a court decides to suspend the punishment, adduction to Article 54 of the Islamic Penal Code of Iran. It is carried out imprisonment less than 91 days in some circumstances But in offences without taz’ ir punishment if the convicted violates to carry out the decision of a court the substituted penalty of the imprisonment is not cancelled.

Based on the report of the international authentic institutes, Daesh group (ISIS) has committed anti-human and grave behaviors that for their systematizing and spreading over that some of them can be instances of three important international crimes meaning genocide, war crimes and crimes against human. Yet it has not been formed any serious action to prosecute and punish the members of ISIS by national and international courts. Iraq government with adducing to territorial principle is the most prior country to prosecute and sentence these members and also countries which ISIS members are their citizens or countries have accepted the principle of universal jurisdiction related to the international crimes and with relying on personality principle and the principle of universal jurisdiction it can be prosecuted and punished ISIS members specially their leaders in an international criminal court. The universal society expects that United Nations Security Council exercises the prosecution and punishment of ISIS members in an international criminal court. This is possible through two methods: the establishment of an international criminal court like the international criminal tribunals for the Former Yugoslavia and Rwanda or referring to International Criminal Court. This paper has legally studied and evaluated the possibility of sentencing ISIS members in any of the mentioned courts. The outcome shows that every of theses courts has its advantages to prosecute and punish ISIS members and Iraq government and international community must use these capacity in a proper manner.

The right of retaliation for religious minorities in Islam in the case of a murder against them by a Muslim is a subject required to be restudied once more. The requirement of such an investigation is more clear nowadays under the sovereignty of the jurist guardianship based on the teachings of the household of the prophet. This article, a restudy of the verses of the Quran and the narrations relating to the subject, has lead to a new conclusion that the religious minorities have the private right of retaliation whose enforcement is due to the Islamic ruler of the society. Due to this study their right of retaliation is not regarded as a case of the domination of non-Muslim over a Muslim which is forbidden in the Quran neither the narrations deny the subject and those tradition which seems negating this right are justified as something issued for assimilation. On the other hand, having a socio-political glance at the subject, we get to the conclusion that the right of retaliation is a private right and the Imam of the society has the right of enforcement of this law or leaving it fir blood money in different cases. Therefore the narrations concerning the subject seem contradictory.

It is not exaggerated if “ Takfir” is determined as the most important issue in today’ s Islamic world in spite of its inner religious nature, its scope is out of the religious limitation and beliefs and fear of it is extended to non-Islamic countries. For this importance, one of strategies can be considered to overcome this problem is using the criminal law and punishment. Although criminal law is a tool to react against offenders, the anti-human nature of Takfir and its close relationship with terrorism can separate criminal law from its essential principles and be like a tool for the legislator. In spite of this challenge, it is necessary for its criminalization under the light of its Islamic jurisprudence, it justifies the risk of deviation of the mentioned principles and yet, shows the advantages of applying law to non-legal substitutions. However, the suggested solution to combat and exit from the process of changing Takfir forces to terrorist ones is creating legal obstacles before their actions and in idiomatic expression, the criminalization of this phenomena is as obstacle crime, it is the way which has been selected by international documents.