Effect of Incomplete Confession in Criminal Affairs, from Ta'zir (punishment) to Purgation
Ardavan
Arzhang
استادیار دانشگاه آیتالله حائری میبد
author
Mohammad Reza
Hamidi
دانشجوی دکتری فقه و حقوق اسلامی دانشگاه تهران
author
text
article
2016
per
In some crimes, confession from delinquent is not adequate to prove the crime despite authenticity and precision in the content. Such confession is known as incomplete confession. The famous Paradigm consider this confession as Ta’zire (punishment) due to three reasons containing: prohibition of sin confession, gaining limited knowledge of taboos and spread of prostitution. The same approach is confirmed by Islamic Criminal Law. There exist another point of view which rejects this kind of confession by inspiring (by referring to) three important factors containing: narrations, innocence principle and Da’re principle. The other point of view gives the authority to the governor so that the governor would be able to apply the punishment whenever criminal motivation of the confessor is determined to him. But in other cases of incomplete confession, the governor does not consider Ta’zir permissible whether the confessor intends to purge or his motivation is not clear to the governor .By inspecting the points of views and their reasons, the governor’s point of view by consideration of the confessor’s motivation is considered to be the most comprehensive beyond all the theories. Thus, it gained a considerable potential. The Islamic Criminal Law needs to be inspected and revised around this issue.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
7
22
https://jol.guilan.ac.ir/article_1740_9900ba177483d3453501885a3f15f922.pdf
The Role of Ethical and Philosophical Theories in the Question of Duress in Murder in International Criminal Law
Alireza
Taghipur
استادیار گروه حقوق دانشگاه بوعلی سینا همدان
author
Seyed Reza
Rfiee
دانشجوی دکتری حقوق بینالملل دانشگاه بوعلی سینا همدان
author
text
article
2016
per
In their judgment of the Erdemović case in 1997, the majority of judges of the ICTY Appeals Chamber, have reached the conclusion that soldiers charged with participation in war crimes and crimes against humanity involving murder must not benefit from a complete defense of duress. Referring to the lack of a customary rule in international law about the recognition of duress in cases of murder as well as the unfavorable effects resulting from such a recognition. A deeper analysis reveals that the varying ethical and philosophical views of the majority and minority judges have had a decisive role in the recognition or rejection of the defense of duress in that case and the same varying moral and philosophical viewpoints may have an effect on the future judgments of the International Criminal Court in cases involving duress in murder.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
23
45
https://jol.guilan.ac.ir/article_1742_db64560d2db5c8938a566bbe9f72a01e.pdf
The Analysis of Legal and Jurisprudencial Criminalization Basis of the Offense Taking Over a Public Service
Fereydoon
Jafari
استادیار گروه حقوق دانشگاه بوعلی سینا همدان
author
Mohsen
Abbasi Mogharrab
کارشناس ارشد حقوق جزا و جرم شناسی
author
text
article
2016
per
The offence of taking more than one governmental job is a crime against the state. In analyzing the jurisprudence basis, there is no direct forbiddance, but in spite of the general rule of EBAHA (permissible), it could be considered criminal, as “Tazir”, because of its harm on public and treasury regarding to the rule of no harm (La- Zarar). Also, in customary criminal law, with respect to the last resort principle (Ultima Ratio), its criminalization is justified based on the negative effects on public services, conflict of interests, corruption and undu influence. This criminal intervention results in protection of social and economic freedoms, preventing corruption, the rights of governmental organization clients, creating recruiting justice and fighting against perpetrators to prevent from major offences. There are some ambiguities on procedural and substantial standards of this offence regarding non intervention of Islamic researches and criminal lawyers on forbidding and criminalization of that
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
47
72
https://jol.guilan.ac.ir/article_1745_d2efef12e81a07c38edee2a021a1fa5e.pdf
Globalization of Terrorism and Mechanisms for Effective Protection of Its Victims
Mahmud
jalali
دانشیار گروه حقوق دانشگاه اصفهان
author
Zeynab sadat
Musavi
کارشناس ارشد حقوق جزا و جرمشناسی دانشگاه اصفهان
author
text
article
2016
per
In protection of victims of terrorism, the rule is to compensate the material and moral damages of the victims through the mechanisms provided for in the national legal systems including by the specific private institutions and State funds. Globalization of the phenomenon of terrorism is leading to globalization of the norms and mechanisms for protection of the victims. There are now a number of regional and international documents protecting victims in general and victims of the acts of terrorism in particular. For example, the 1983 European Convention on the Compensation of Victims of Violent Crimes, the 1985 GA Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and the Statute of the International Criminal Court are of importance. They recognize the rights of the victims of terrorism to restitution, material and economic compensation, criminal protection, medical, psychological and psychiatric aids, police and security assistance and legal and cultural protections. However, more effective protective measures are required.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
73
99
https://jol.guilan.ac.ir/article_1751_73604fd9b864e6ba33c1f734204744c5.pdf
The Status of Plurality of Result in the Iranian Criminal Law
Ahmad
Hajidehabadi
دانشیار پردیس فارابی دانشگاه تهران
author
Amir
Bagerzadegan
کارشناس ارشد حقوق جزا و عضو هیئت علمی دانشگاه پیام نور ایران
author
Mohammad
Mirzaei
دانشجوی دکتری حقوق جزا و جرم شناسی دانشگاه شیراز
author
text
article
2016
per
Plurality of crime inter alia is a general aggravated factor of the punishment, which divided into two material (committing several independent criminal behaviors) and constructive (committing one behavior with varied criminal titles) types. Additionally, the issue of plurality of result (committing one behavior with one or more criminal titles, albeit with varied results) is raised. Although, plurality of result can be called as an independent factor to aggravate punishment, along with material or constructive plurality, but many authors do not believe in the independence of this institution and consider it as a subset of constructive plurality. After years of legal gap, the Islamic Penal Code 1392 has addressed plurality of result and considered it as a subset of material plurality. Obviously, given that the amount of aggravation in material plurality is more than constructive plurality, it is highly important to elucidate the basics of the lawmaker’s approach, along with analyzing and describing of the institution itself; it is what the present paper attempts to address.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
101
122
https://jol.guilan.ac.ir/article_1754_3d4263e087056783217671e1dd7b1a4c.pdf
Legislative Evolution of Rehabilitation in Iranian Penal Law
Abbas
Salmanpour
عضو هیئت علمی گروه حقوق دانشگاه گیلان
author
Hassan
Kazemi
کارشناس ارشد حقوق جزا و جرم شناسی دانشگاه آزاد چالوس
author
text
article
2016
per
Rehabilitation is a criminal establishment of the legislator which ordains to facilitate the socialization of convicts so that the legal possibility for re-utilization of social rights of convicts to be provided. This establishment has certain conditions that have been changed in various legislative stages and the last stage of change was adopted in the Islamic Penal Code of 1392. In recent act, some social rights are permanently deprived from convicts, which seem to be in conflict with the desired purpose of rehabilitation. Investigation of the evolution of legislation in Iran regarding the circumstances and consequences of the rehabilitation is the subject of this study.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
123
139
https://jol.guilan.ac.ir/article_1755_2b72e5a1d834426f4d6c20ca63d7a2e8.pdf
The Principle of Separation of Prosecutor Apart from Investigating Judge
Abolhassan
Shakeri
دانشیار دانشکده حقوق و علوم سیاسی دانشگاه مازندران
author
Reza
Hadizadeh
دانشجوی دکتری حقوق جزا و جرمشناسی دانشگاه مازندران
author
text
article
2016
per
This essay considers the principle of separation of prosecutor from investigating judge in criminal procedure.in Iranian penal code 2013/1392, assignment of investigating official apart from prosecutor indicates accepting the principal. This refers to the independence of investigating official in his duties and non-interference of him in prosecution. However the purpose of separation is not absolute. Administering and necessary teaching and request completion of investigation is not contrary to the principle. Moreover in some exceptional cases, the principle can be excluded necessarily and immediately. Positive step of penal procedure is that investigating by prosecutor is subjected to shortage of investigating official. In addition to, the other favorable changes are explicit expression in cases such as impossibility to returning the case referred to the investigating judge, the need for referring in exceptional circumstances that the investigating judge starts the investigation directly. However some cases of violation of this principle can be found in law of Iran. For example, it can't be said the principle is being observed when unchaste behavior is raised directly in the court.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
141
163
https://jol.guilan.ac.ir/article_1756_ed0d4d29bc37124ac386262c2923a7c8.pdf
Setting Fine Criteria for Legal Entities in the Penal Systems of the United Kingdom, the United States and Iran
Mohsen
Sharifi
استادیار گروه حقوق دانشگاه طبرستان
author
Mohammad Jafar
Habibzade
استاد حقوق کیفری دانشگاه تربیت مدرس
author
text
article
2016
per
Criminal liability of the legal person in term of capacity to bear the penal consequences of the criminal behavior makes it possible to assume them as the subject of criminal law, including fines proportionate to the crimes' nature. Fine is justified when criminal law goals are met and realized. The criminal systems have adopted and attempted various strategies for this purpose. Following the practice of the French panel law, the Iranian lawmaker has adopted the strategy of making the fines 3 to 6 times or 2 to 4 times for legal persons, concerning the cyber-crimes and other crimes, respectively. The United States criminal law applies five stages to determine guilt score and risk degree; and specifies the related punishments for the legal persons. In the UK, a modern method has been used to improve the fine deterrence effect for the legal persons, specifically for the major crimes such as murder. The method emphasizes on reducing some percent of the criminals' real income, whose details would be discussed in this paper. The ultimate purpose of comparing the countries' legal systems is to specify the Iranian penal system's deficiencies concerning the topics of the discussion and providing solutions to overcome them.
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
165
190
https://jol.guilan.ac.ir/article_1757_d58a5bbe8a3fad525e5a0bf0361f9ae1.pdf
A Comparative Study of International Convention Against Financial Corruption and the Act of Health Promotion of Administrative and Fighting against Corruption
Mohammad Reza
Nazarinejad
استادیار گروه حقوق دانشگاه گیلان
author
Khashayar
Esfandiarifar
دانشجوی دکتری حقوق خصوصی دانشگاه مفید قم
author
text
article
2016
per
Nowadays, fighting against financial corruption has been attended by many countries that lead the countries to international cooperation and fighting with it in internal aspects. One of the most important international documents in fighting against corruption is the convention against corruption (Merida) that has got many members. On the other hand, the most important legal document in internal arena is ‘Administrative Health promotion and anti-corroption Act. This paper aims to conduct a comparative investigation on ‘Merida Convention’ and ‘Administrative Health promotion and anti-corroption Act, revealing that the rule is influenced by the aforementioned convention in many fields. It is clear that overlooking the preconditions of fighting against administrative corruption including the streg then of civil societies, freedom of media, making the government and smaller bureaucracy cannot be done in line with codification of rules
Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
191
215
https://jol.guilan.ac.ir/article_1758_8c03e5640ebe2b0e8b12e8177363054d.pdf
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text
article
2016
per
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Criminal Law Research
University of Guilan (with the participation of the Iranian Association of Penal Law)
2322-2328
7
v.
1
no.
2016
1
215
https://jol.guilan.ac.ir/article_2285_13a5857af35ff55d9a9f876796cbedd4.pdf