Fiction and Reference Techniques in Criminal Normativeization

Contemplation on how criminal law is formulated and placed under the microscope of the legislature in the process of criminalizing, punishing and characterizing (labelling) a criminal act has an important role in improving the quality of the law. In addition to the substantive dimension, criminal law deserves attention in terms of form and application of techniques such as fiction and reference. Despite the importance of criminalization and dtermining the punishment methods and the wide consequences of these methods on the implementation of the law, the contexts of fiction application or the use of indirect punishment system, the challenges ahead and the assessment of the necessity or non-necessity of using this technique have been less studied. This article studies the effects of formation of criminal regulations on the quality and predictability of the consequence of law through using fiction and referral of punishment. It also studies criteria which can be used to reduce the theoretical and practical challenges of these techniques. Relying on a descriptive-analytical method, the article examines the grounds for the entry of these methods into the criminal legislation, through the review of 30 related criminal verdicts. The article also reviews basic challenges of using legal fiction and referring in judicial precedent. Finally, the article does not evaluate the use of legal fiction and referral of punishment as a desirable and efficient method. The article proposes the idea of ​​"unifying crimes in the light of common label or punishment in common text" and a more thoughtful interpretation of the laws of fiction or referral of punishment. According to the findings of the article, adherence to criteria such as the rules of accession, attention to the functions of criminal characterization (fair labeling) and the appropriateness of punishment, is effective in mimimumizing these methods.