Standard of Mental Element of Unintentional Crime in the Legal Systems of Islamic and Western Countries: With a View to the Approach of Islamic Jurisprudence

One of the important issues regarding criminal fault as a mental element of unintentional crimes is the criterion of determination the fault. The legal systems of different countries have chosen one of two Subjective and Objective criteria in this matter. The main issue examined in this article is to determine a more appropriate criterion and the reason for it. Advocates of the objective Criteria, who accept the existence of fault where the perpetrator thinks contrary to the mentality of ordinary persons, have argued the easiness of proof of the mental element and unity of the elements of civil and criminal fault as a basis for justifying their position. On the contrary, the adherents of the Subjective Criteria, argue that the criterion for determining fault is the mental state of the perpetrator himself, and argue that it is unreasonable to punish a person based on the mental actions of not himself but others. In addition, proof of fault is possible based on external evidence. In the present article, through a descriptive-analytic method, the criterion governing the mental element of unintentional crime has been studied, taking into account the approaches of the legal systems of Islamic and Western countries. Furthermore, the approach of Islamic jurisprudence to this issue has been examined. The result of the study is the strengthening of the theory of Subjective criteria, which is also consistent with the nature of the fault and the culpability stated in the criminal law, and it is necessary for the legislator to explicitly determine it in the regulations.