نشریه آموزه های حقوق کیفری
پیاپی 3 (بهار و تابستان 1391)

One of the most important crimes in the criminal law is “descriptive crimes” which don not occur except the perpetrator has that description which the legislator has mentioned. Sometimes the legislator has stated a special description without determining its scope and the occurrence of the provisions (like “the description of the state officials” is designated a separate chapter of crimes in many criminal codes). In Iran، chapter13 of the Book5 of the Islamic Criminal Law (codified 1375) relates to the violations of the state officials to the rights of the government whereas the law is silent to the definition of the state and the state officials. In this research has been attempted to study the bases of the penal and criminal codes (countries such as France، Lebanon and Jordan) to define the right concepts of the state and the state officials in the criminal codes. At the end it is revealed that these two concepts have a more extensive meaning than the state and the state officials in administrative laws. Besides، the paper is going to explore the exact realms and limitations of these descriptions and its different types in the criminal codes (in a separate definition).

The entrapment defense means that judicial authorities use some deception, chicanery and decoys to prove or induce a man to commit a crime in order to get him convicted. That’s sometimes the judicial authorities to explore offenses or convict persons with criminal records face blocks. Because using the traditional or common ways to explore or prove some crimes conclude no result in the legal duties of the judicial authorities. Hence they want to use the ways (although they are fulfilled in exploring or proving the offenses) which does not seem fair or logic according to the laws. Therefore the entrapment defense acts as a factor to the right of the victims in the two aspects and does not let the judicial authorities to use these acts. The investigation and explanation of these aspects determines the limitations and definitions of this defense which is new in the criminal law. Because the law is silent in this subject, judicial proceedings and our doctrine, it makes the attention of the legislator to focus on creating a complete and enough guarantee for it.

Two topics Muharebe (taking up arms against society) and Fasad fi’l-ard (disturbing peace and order in the land) are Islamic jurisprudence titles that according to article 4 of Iran Constitution entered the criminal codes of Iran after the Islamic Revolution. There are strong arguments over these two concepts and it is viewed highly challenges over their natures among Islamic jurists (Fughaha). But the investigation according to the jurisprudential reasons can be revealed a firm definition of these two aspects which the punishment of Muharebe (who taking up arms against society) according to the Muharebe verse as defined the cases and the punishment of the corrupters (not being Muharebe and not being caused a violation of the right of God-Hadd- or a violation of the mixed right of God and an individual -Qysas-) is Tazir (the punishment for a violation of the right of an individual) because of no definite statement in the Quran. The Islamic Leader determines the punishment، relevance to the violation. But a summary look to these criminal titles against security shows that these two titles in the criminal policy of the legislator with a growing look in the different fields has been emerged. The principle part of the title of Muharebe (taking up arms against society) and Fasad fi’l ard (disturbing the peace and order in the land) in the crimes against the security is related to the cases which indicate damages to the political system. The existence of this criminalization is for the combining concept of Muharebe (taking up arms against the society) and Baghy (taking up arms against the government) whereas Muharebe is a public offense and Baghy is taking up arms against the government (Khuruj) and every one of them has its penalty. Therefore، the crimes against the political system has no relevance to the pillars of Muharebe and Fasad fi’l ard.

Increasing attention to the balance of human rights after the Second World War has a direct and perceivable impact on the process of the punishments. The abolition of the death penalty was a milestone of this effect in the international criminal courts. The milestone of this effect can be observed the abolition of the death penalty in the international criminal courts in former Yugoslavia and Rwanda. The more and highly attention is considered to the subject and the life imprisonment punishment (for the abolition of the death penalty) with regarding the special effects of the life imprisonment punishment in some countries. While in the National societies، the impacts are more colorful and at last leaded to eliminate the life imprisonment punishment in some countries، the elimination of this penalty is confronted the challenges. Supporters and opponents of this penalty put their main emphasis on the arguments of human rights. Supporters regarding the international serious crimes and the necessity of protecting victims believe this penalty is acceptable. Whereas opponents insist on the excessive awful effect، they believe the life imprisonment is a gradual death of the convicts and do not accept. There is a moderate opinion in this problem with normalization and considerations that the writer affirmed.

The criminal matters as decisive factor (which is determined the limitation of behaviors، principals and justice procedural rules in the criminal and noncriminal examinations) is an outcome of new human rights. Determining the concept and philosophy of the matters and the criteria governing it and the necessity of accepting this concept in the legal system of Iran is one of the subjects that’s worth considering. The European Convention on Human Rights (E. C. H. R). In this legal establishment، all the violations which are the guarantee of the executions with the nature of the criminal enforcement، have the guarantee of the justice procedures. If the committed violation corresponds with the one of these criteria: the description of the violation in the criminal laws، the nature of the violation، the aim of the executive guarantee and the extent of the executive guarantee، the mentioned violation will be the criminal matters. Iran as a member of the international society، which signed this International Covenant on Civil and Political Rights of 16 december1966، should consider the above guarantees.

Right to go to the courthouse and obtaining rights are the basic constitutional rights of the citizens in the civilized societies. The improvement of the communication and data tools cause a reduction in excessive red tape and the physical appearing of the parties in the legal procedures. More than one decade، the developed countries are attempting to make electronic (E) procedures. They want to use the telecommunication and the adoption of the electronic methods in the court process. In this paper، the writer tries to study (after the description of the electronic legal procedures and its specifications) the obligation of making electronic procedures and using the obligations of electronic methods in the procedures and at last legal challenges in a scientific method.

Although prisoners are deprived of liberty but as a human being، they do have rights. Hence، they should not be treated inhumanely and indignity. Even though، the prison systems، all over the world confront the problem of over criminal populations in prisons، lack of necessary fundamental constructions and lack of experts in caseworkers. But these difficulties and obstacles do not cause to forget the main purpose of the punishment، depriving of liberty means the rehabilitation of the offenders (The aim occurs in considering the fundamental rights of the victims and respecting to their dignities). These principals and bases (regarding to the human nobility and his dignity has been shaped its being is to enhance the status of human rights) determine the provisions and conditions to cure the offenders. The application of the rehabilitation with consideration of these principals leads to a fair aspect.

The spiritual element is necessary to be committed a crime and be created communication between the defendant and the material elements. There is no difficulty when this mental element is malice aforethought because the criminal behavior and (necessary cases) the result are planned directly or subordinately by the perpetrator. But creating this communication between the criminal behavior and the perpetrator is a little difficult in the cases without malice (premeditation) whether quasi-international (negligent) or pure fault. There are highly disputes in the cases which this relation depends on the criminal fault which is stated carelessness or heedlessness and the violations of the state orders and unskilfulness in the national law and recklessness and negligence in Common law. Because of this complex in reasoning based on these elements particularly in Common Law. We are going to determine and analyze this in the National Law and Common Law.