فصلنامه پژوهش حقوق کیفری
پیاپی 13 (زمستان 1394)

A considerable part of the origin on differential criminal procedure on terrorist offences should be examined in the sphere of policy and politicians attitude to criminality and especially terrorism. This undeniable fact is worth considering from the numerous aspects. By conferring exceedingly freedom to act, the governments paved the way for outbreaking any kind of conduct, even violent conduct for their citizens. After losing the authority to control the security of society by exceedingly elimination and exclusion of liberties, they prepared the ground for violating citizens’ rights and by this means the governments sought to prevent happened excess and indulgence. Subsequently, by making pretext for the security, they embarked on politicization of criminality, particularly terrorist offences and apparently in this regard they have been successful. They not only confirmed their attitude, but also made the public align with their policies in criminal scope. That the governments ignored necessary expertness for proceeding and dealing with terrorist offences by manipulating the well settled principle of separation of powers, and undue intervention in other powers spectrum is the most important matter. In foreign policy also, they created considerable developments. This essay tackles on examining these matters.

One of the main constituents of murder is mens rea or mental element. Actually, the difference of murder and involuntary manslaughter is mens rea which has different components including general ill will (intention of behavior or the purpose of action) and particular ill will (intention of the result or purpose of the result). The current paper, in addition to explaining mens rea of murder, analyzes the knowledge and volition as the first and the most important components of mens rea and also the status and role these two components. This paper concludes that although the Islamic Penal Code (2012) comparing with former codes has innovation, has still some failures. Hence, there are some issues which shall be rethought about them including: murder by omission, attention to leaving an action in murdering, affirmation of the action purpose done on victim as the authentication of intention in crime, voluntarily behavior in murder and also making difference between first degree murder (premeditated killing) and second degree murder (non-premeditated killing).

It is doubtless that murder is normally committed by an act. In the Iranian criminal law literature, criminal act with regard to murder has been divided into physical and non-physical act without precise definition and determination of criteria of these two acts. As a consequence, they are not clearly distinguished from each other. Hence, there are some criminal conducts that do not fall within these divisions. The reason is the considering hitting or non-hitting on victim's body and the type of injury as a measure of the distinction of these two acts. In the present essay, after defining and distinguishing the physical and non-physical acts, attempt has been made to classify the acts into physical and non-physical on the basis of the nature of the committed act, regardless of the result. In addition, hitting or non-hitting of the act on victim's body and physical and moral damage has been taken into account only in classifying the physical act.

Rupture of the spleen is one of the most common internal injuries caused by accidents which eventually leads to the removal of the organ from the victim's body. No special text on Jurisprudential sources of such compensation has come down to us. However, some general narratives suggesting full compensation of the single's body organs has been generalized by many Jurists to internal organs including the spleen. The Islamic Penal Code (2013. art. 563) also put emphasis on this criterion about internal organs. There was a great unanimity in the courts’ sentences regarding the interpretation of given article on damage to spleen. This disagreement led to the issuance of Order of Precedent N.740 by the General Board of the Supreme Court and as a consequence, lower courts were obliged to exclude the blood money of spleen from art.563. This essay, has discussed this comparative approach from the perspective of Imamiyyah Shiite and Sunnite Jurisprudence considering the jurisprudential principles and reasons relating to compensation of spleen and come to the result that the theory of spleen's full compensation has a stronger legal backing. Moreover, from a legal point of view, it is doubtless that given art also include the compensation for the spleen.

The achievements of this paper show that although the legislature has taken a positive step to fill the gap of the Islamic Penal Code, it has not acted perfectly in identifying the criminal liability of legal entity. Articles revolving the issue in the new Islamic Penal Code are fully ambiguous and synopsis which have led legal community to criticize and put the criminal courts in real trouble for making decisions. It is necessary that legislature take some action in order to solve the problem. Legislature has adopted the stricter theory regarding the identification of legal entity (including the legal entities of public law and legal entities of private law). These theories are theory of ‘respondent superior’ and ‘brain theory’. However, sentencing the legal entities to blood money is out of this rule and the first theory has been adopted.