نشریه پژوهش های حقوق جزا و جرم شناسی
پیاپی 3 (بهار و تابستان 1393)

The principle of conduct, as a basic principle, is as the actus reus in a model which can be called criminal law theory. The theory explains the relations among manifestations of criminal norm based upon a hierarchical model in which the conduct as objective aspect of free choice is analyzed into several rules from which each one derive specific provisions. These render the norms constituting criminal conduct become applicable in any criminal cases. The rules derived from the principle of conduct are divided into three groups: rules of the nature of conduct, rules of requirements and circumstances of conduct, and rules of consequence of conduct. All of the rules reflect similarities and differences within comparative criminal law systems. The cases concerned in this article are Iranian and English legal systems. The article concludes that although the classical concept actus reus can be formulated as the principle of conduct in both legal systems but the rules and specific provisions derived from reflect significant differences between the Iran and England law: Whereas these rules and provisions have mainly been incorporated into within Iranian law from other legal systems (esp. European- French ones), there is an organized system of the norms constituting conduct within England law.

According to the principle 36 of Iran Constitutional law, everyone has the right of litigation. Everyone can access proper courts for litigation. These courts must be available for everyone and nobody can`t be denied from resorting to the court which is accessible according to the law. All of terms that has been used in this principle, are absolute and unconditional. So, the primary principle is that disability is not a barrier in this way. But enforcement of this right in some groups such as children and adolescents can be faced with some barriers because of special physical and social situations. This is an important matter in crimes against child because of major impacts of victimization and social and humane necessities in supporting victimized children. Although being a child is not a barrier to litigation right when a child is victimized, legislators by attending to the vulnerability of child in bringing criminal action and for reducing black figure of crimes against them, have provided some differential supportive mechanisms in enforcement of this right by adopting welfare approach. This matter has been provided in criminal procedure law (1392) that is one of the most victim-focused in Iran criminal laws. Reviewing this Act and comparing it with the other laws and legislations in this area such as Child Protection Act (16/12/2002, other Acts and ongoing bills present the disharmony, conflict and confusion in legislative policies in this field. This essay reviews mentioned matters in descriptive- analytical approach and by use of comparative law findings.

The prohibition of sin aiding as jurisprudential basis of criminalization of aiding in crime has always been considered. The order of Shari’a in crime aiding and the quality of its creation has several similarities to crime aiding. While more accurate inquiry on material and mental elements show that the substance of sin aiding and it’s partial subjects are not necessarily accompanied by crime aiding theory. On one side, the recognition of the aiding examples which is based on achieving common perception of “aiding” in return of considering legal examples of aiding, will lead to not considering some behaviour as jurisprudential aiding unlike law’s perspective. On the other side, acceptance of knowledge adequacy to the content of action theory,in creation of material element of aiding, will make distinguished approach that can be observed in criminal laws.

Substantive and procedural criminal laws have no differences in relation to interpretive approaches and general canons of interpretation. They also have no differences in these respects with other legal branches. There are two special canons of interpretation (i.e., strict interpretation and interpretation in favor of the accused), which although they have a common core in both substantive and procedural criminal law, their applications are not the same. The strict interpretation could be defined as interpretation limiting the right-breaking. The principle of legality and fair trial are respectively the focal concepts in substantive and procedural criminal law. So, the canon of strict interpretation in substantive and procedural criminal law could be respectively defined as interpretation “based on” or “compatible with” the principle of legality and as interpretation “based on” or “compatible with” fair trial. The canon of interpretation in favor of the accused has a completing role for the canon of strict interpretation and is the last chain of the interpretive process in substantive criminal law. This canon has, in the light of the principle of balancing the rights, a broader scope in procedural criminal law than in substantive criminal law and is manifested as the canon of favor-based interpretation, which is subdivided into three canons, i.e., interpretation in favor of the accused, interpretation in favor of the crime victims and interpretation in favor of the society.

Inadequacy of the civil and disciplinary sanctions to control the riskful activities of the modern powers such as legal entities ultimately made the Iranian legal system to move beyond the sparse and case law, and recognize the criminal liability of those individuals, as a rule in the Islamic Penal Code (Article 143; ratified in 2013). Obviously, the effectiveness of this approach depends on the integrity of the sanctions commensurate with the culpability of legal entities. Therefore, it must be assessed whether or not the designed sanctions- dissolution, confiscation of property, prohibition of occupational or social activities, capital raising, prohibition of issuing some trade documents, fine and publishing sentence (Article 20)- are equivalent to the legal entities nature. Does the diversity of these reactions in a way that they can cope with crime control among these persons? Do the sanctions meet the particular goals of punishment such as deterrence and victim’s redress losses? And is there any separation among the sanctions with regard to the legal entities types (public or private being)? According to the present essay, the predicted sanctions are proportionate to the nature of the legal entities, but their diversity is relative. The remedial goals of the punishment and support the victim is more likely to be met than other objectives. Also, despite the separation between legal entities, there is no distinguished separation between the sanctions.

In Islamic Penal Law crimes and punishments are divided intohodoud (prescribed punishments) and ta’zirat (discretionary punishments). It is, sometimes, believed that political crime, in its modern sense, is recognizable only in hodoud, not ta’zirat. The major part of the problem according to this view seems to be that the recognition of a crime as political requires some changes and mitigationsin the punishment; while the quality and quantity of the punishment inhodoud are supposedly predetermined. This article studies arguments in favor of this idea and evaluate them as insufficient. Rather the article argues that at least some hodoud are recognizable as political crimes in certain cases due to their nature andsubstance. The article also provides some arguments in favor of differentiation between professional criminals and offenders with political motives. Even in traditional view, this differentiation has had role in separation of some crimes from one another. This idea can be developed for recognition of political crimes in its modern sense not only in ta’zirat, but in some hodoud as well.