نشریه فقه جزای تطبیقی
سال چهارم شماره 1 (بهار 1403)

Volition as an important component of the psychological element of crime is one of the important issues of criminal law, whose role in the realization of criminal responsibility has different dimensions and has always been the solution of debates and opinions. In this article, an attempt has been made to examine the role of volition in criminal responsibility from the perspective of Iranian and French jurisprudence and law. The current article is descriptive and analytical and has investigated the mentioned question by using the library method. The findings indicate that both in Iranian jurisprudence and French law, although material behavior is necessary for the realization of criminal responsibility, it is not sufficient and it is necessary that this behavior is done with free volition. Therefore, if the perpetrator does not have the volition to carry out that behavior, no type of criminal responsibility volition be realized. In fact, the basis of criminal responsibility is the volition of the behavior. If a person does not have the right to freely choose his own behavior, which means that he lacks freedom of volition or there is no opportunity for him to choose his behavior, then he cannot be held criminally responsible. In Iranian jurisprudence and law, lack of volition in cases such as coercion, reluctance, sleep and anesthesia is a civil liability. In French law, coercion in a way that is out of tolerance, as well as drunkenness and any mental disorder that destroys the volition, are responsible for blasphemy. Of course, in both Iranian and French laws, in cases such as drunkenness, the removal of responsibility does not mean the removal of compensation, and the perpetrator must compensate the damage caused to the victim.

In jurisprudence, due to the abhorrence of adultery in Sharia, different rulings have been considered for children born out of wedlock. One of these rulings is about the blood price of an illegitimate child. Due to the difference in the opinion of the jurists regarding the assumption of the problem, the present article has studied the heritage of written jurisprudence in a descriptive and analytical way in a problem-oriented research and has reached three different points of view: 1- The famous theory that the amount of money considers the natural child equal to other people; 2- The view of a group of scholars who believe that such a person's dowry is equal to a dhimmi disbeliever; 3- Shazi's point of view, which basically does not believe in the obligation of money in assuming the problem. In the present research, after the detailed counting of the statements in the issue as well as the documentation of each of the above opinions, in the end, the second view which is attributed to a number of the predecessors of the Imamiyyah is considered to have a solid basis and shows the result of the arguments of the chapter. Famous and Shaz's words are not in question.

The dominance of postmodernism in the life of human societies, and the introduction of various variables into people's lives, has led to the complexity of human relationships. One of the important issues in this field is the increase in tension and violence, among which one of the most important instances of violence is domestic violence. Domestic violence has different dimensions and examples, including violence against women, violence against children and adolescents, etc. The present study, which has been conducted through the descriptive-analytical method, will evaluate the criminalization basics of this phenomenon in Iran's legal system and Jaʽfari jurisprudence. The present study shows that despite appearances, some rules such as correction permit of children and adolescents are prohibited in the framework of the ruling jurisprudence-legal system, and all instances of violence against children and adolescents are prohibited, and the existence of special educational-educational rulings does not provide permission for violence against children and adolescents.

According to the theory of social control, having a job is time-consuming and a person who has a job will not have time to engage in crime, if he suffers from a strong external constraint, he will choose an aggressive act or Homicide. The aim is to evaluate the effect of the unemployment index on the occurrence of Homicide between countries for 24 selected countries and to estimate its regression separately for Iran and compare the results. The research method is a descriptive survey. The statistical population is all the countries of the world. The sample size is 23 developed countries and Iran. The sampling method is a survey. The variables of human development degree, inflation rate, unemployment rate and percentage of urban population have been used. The data were extracted from the Human Development Report of the United Nations, the World Bank and the World Health Organization during the period of 1990-2018 and the economic model of Homicide was estimated from the balanced panel data technique. The findings showed that the variable coefficient of the percentage of the urban population is meaningless and a disturbing variable, so it was removed from the model. The results of the re-estimation of the model showed that the human development index of the countries has the greatest effect on the occurrence of Homicide and the unemployment rate and the inflation rate are in the next categories respectively. The comparison of the results showed that the unemployment rate coefficient is more than three times the inflation rate coefficient, the importance of the unemployment rate in preventing murder is greater than inflation. The estimation results of the model for Iran are completely consistent with the regression results obtained for the group of countries. In Iran, the unemployment rate is higher than the group of countries.

Today, administrative and economic corruption is one of the challenges of society and the administrative and political system of Iran. At the same time, in the statement of the second step of the Islamic Revolution, the Supreme Leader outlined the requirements for the realization of this great ideal, in line with the realization of the new Islamic civilization. In the present paper, an attempt has been made to investigate the importance of the approach of the statement of the second step of the Islamic Revolution to economic and administrative corruption and the mechanisms of its prevention in Iran's criminal law. The present paper is descriptive and analytical using the library method. The results of the study show that the declaration of the second step of the Islamic revolution in its fourth recommendation considers justice and the fight against corruption to be necessary for each other and considers the lack of political and economic health as a factor affecting the legitimacy of the system. From the point of view of the statement of the second step, justice and the fight against corruption can be given serious attention as one of the clear bases for the planning of the executive officials to fulfill the demands of the leadership and take a step towards the creation of a new Islamic civilization. In addition, many laws have been established in criminal law to prevent economic and administrative corruption in criminal and non-criminal forms. Fines and imprisonment are among the most important examples of criminal prevention and supervision and efforts for economic privatization are among the most important non-criminal mechanisms for preventing economic and administrative corruption. Indeed, the existing laws need to be revised due to fragmentation.

One of the most important legal developments, which has become a source of legal dispute and controversy, due to the appearance of Sharia prescribed punishments in the Islamic Penal Code approved in 1392, is the concept, examples and effects of this type of punishment, which is based on the similarity of prescribed punishment with the limit and the concern of non-applicability. According to the approach of the legislator, in line with the evolution of the concept and scope of Ta'azir, since 2013 and according to the note two of Article 115 of the Islamic Penal Code, the legislator tried to present a new separation of Ta'azir into two types of Sharia-mandated and non-mandated punishments. Significant legal effects such as the rule of prohibiting retrials, granting judicial immunity in minor crimes, issuing orders to postpone the issuance of sentences, suspending the execution of punishment, reducing the punishment of children and adolescents to at least half if there are mitigating factors and the expiration of the prosecution time, giving up on the Shariah punishments. has been This is while the concept and examples of Ta’azir prescribed by Shari'ah are still the subject of controversy and the above-mentioned separation has led to the abrogation of the law. In this article, in order to examine the mentioned issue, while presenting the concept and scope of Ta'zir according to Shari'ah, the examples and effects of this legislator's approach in the evolution of Ta'zir are analyzed and analyzed, and suggestions are made in order to solve it.

Attracting foreign investment is one of the best ways to benefit from foreign financial resources. Considering dual and proportionate methods to resolve legal and criminal lawsuits resulting from foreign investment is one of the most important incentives for attracting foreign investment. It is considered a foreign investment. By looking at the related jurisprudence, one can look for traces of these dual criminal and non-criminal methods, the most important of which is the standard of fair behavior and recourse to arbitration. Regarding the standard of fair treatment, in addition to rationality and its approval from the point of view of Shariah standards, it should be said that this criterion is used in the settlement of legal disputes and criminal lawsuits caused by foreign investment. behaving within the framework of the law, avoiding arbitrary actions, paying attention to the expectations of the investor and maintaining legal stability are among the most important applications of this criterion in the settlement of legal disputes and paying attention to the principles of fair criminal proceedings, the most important application of this criterion in the decision of criminal lawsuits. In relation to the method of arbitration, in addition to the generality of Sharia evidence, its application in legal claims is faced with challenges such as obstacles in the legal system of the host country, parallel proceedings and lack of coordination in the decisions, and in claims In criminal cases, most countries avoid resorting to this method and consider it as a supplementary restorative strategy; Although the balancing role of arbitration in this field is very important.

The relationship between public law and criminalization is one of the important issues that has not been given much attention and investigation. The most important issue in this regard is public interests on the one hand and individual freedoms on the other hand, as a result of which the element of expediency and public order prevails, these freedoms may be limited. This has made it necessary to examine the impact of public law on criminalization with an emphasis on public welfare and order. The current article is descriptive and analytical and has investigated the mentioned subject by using the library method. The results indicate that from a jurisprudential point of view, the components of public law such as expediency and public order, public security, human dignity and non-harm to the society are important bases of criminalization. From the point of view of the subject law, non-harm and necessity and social benefit, along with public order and security, are the most important bases of criminalization. What is important is that there should be a balance between public rights and individual freedoms and the scope of public order and expediency should not be defined so widely that individual rights and freedoms are limited and ignored. Although the legislator does not have the ability to deal with decision-making institutions regarding the rights, it is correct to reduce this influence as much as possible in the field of criminal law and to use criminalization only in the case of threats to individual or community rights. This should also be done with clear and explicit rules.

In intentional murder, the killer does not have any authority in determining and choosing the punishment of retribution or unconditional pardon, but does he have any authority regarding the determination of bloodmoney, or does he have the right to make a decision and express an opinion in the process of converting qisas into bloodmoney? The majority of jurists, except in special cases that require the payment of excess money or the death of the murderer while fleeing, are of the latter theory and this theory is reflected in Article 359 of the Islamic Penal Code, but it seems that despite the fame of the jurist, by re-reading the jurisprudential arguments and especially the arguments which have been neglected by the majority of jurisprudents until now, we can criticize the opinion of the famous jurist and invalidate the consent of the murderer in converting retribution into bloodmoney. In this regard, this article seeks to prove the "theory of imposition of bloodmoney on him" in intentional murder with a comparative reading of the theory of the killer's discretion in accepting or not accepting bloodmoney. Therefore, this writing is looking for a new reading of the role of the killer's consent in turning retribution into bloodmoney, citing authentic legal sources and valid jurisprudential-legal ideas. The result of proving the killer's lack of consent in this category is to solve the conflicts of the articles of the Islamic Penal Code in the context of the heterogeneity of the effect of the killer's consent in the process of converting retribution into money, harmony with the Shariah's taste in encouraging forgiveness while maintaining the deterrent feature of criminal reactions, non-revocation of Muslim blood, etc.

The Financial Action Task Force is an independent intergovernmental body that sets standards and promotes legal, regulatory and operational enforcement to combat money laundering, terrorist financing and the financing of proliferation of weapons of mass destruction. Since February 2008, this organization has put Iran's name in the list of the list under consideration and started to express its positions. Since the laws and regulations in Iran's criminal system must necessarily be compiled based on religious standards, it is must necessary to Analyze the approach of criminal jurisprudence towards the recommendations of the financial action task force. From the point of view of criminal jurisprudence, the criminalization of money laundering and the financial financing of terrorism is in accordance with the principles of jurisprudence, but in the acceptance or non-acceptance of recommendations and international conventions, the point of view of non-acceptance of non-Islamic international conventions and agreements is also a point of view. It is appropriate to examine them in the specific foundations and rules of jurisprudence. In this context, it is possible to refer to important jurisprudential rules such as negating the Domination, the principle of Expediency and Maintaining of the System. Examining jurisprudential rules shows that it is necessary to accept the recommendations of FATF. Joining the convention to fight with this financial terrorism company, examining the materials and public opinion, paying attention to the temporal and spatial requirements and internal reactions, because rules such as the negation of the mustache are variable and subject to temporal and spatial conditions and are strongly influenced by conditions and capacities.

One of the basic challenges of the law of war is new weapons. Weapons such as electromagnetic weapons that operate at the speed of light are deadly and torture people. The purpose of this article is to examine the question of what is the legal status of electromagnetic weapons in the light of jurisprudence and international humanitarian law? The current article is descriptive and analytical and has investigated the mentioned question by using the library method. The results indicate that in humanitarian law, the principle of separation of civilians from the military, the principle of proportionality in the use of weapons, the principle of prohibition of unnecessary suffering and the principle of non-destruction of the environment prevail. In jurisprudence, the mentioned principles have been emphasized. There are no special rules regarding the use of electromagnetic weapons, but from the point of view of jurisprudence and international humanitarian law, the use of electromagnetic weapons is subject to compliance with the emphasized principles, which are accepted as mandatory rules in the law of war. In fact, the use of these weapons is permissible when it is possible to separate civilians from the military, does not create a pointless and unnecessary war on the military, is used in accordance with the enemy's intentions and does not cause damage to the environment.

The right to health, one of the most important components of human dignity as one of the basic human rights, is also emphasized in the biography of Imam Ali (A.S). Examining the Alavi way of life in sources such as Nahj al-Balaghe and Gharral al-Hakem indicates that Imam Ali (a.s.) has important references in providing, maintaining and promoting human physical and mental health. Therefore, based on this tradition and practice, the prevention of health crimes, as a value-oriented process, is actually one of the tools that statesmen can pay attention to in order to create justice and balance in the health society, in order to address the subject of the article. An attempt has been made to explain the various aspects of the subject by using the descriptive-analytical method. Finally, the findings of the research indicate that in the life of Imam (A.S.) all the ways that lead to damage to human health are declared illegitimate and the necessary, explicit and strict order is issued to avoid them and in this way not only Prevention is not enough, but everything that causes the physical and mental health of a person is seen in the commandments.

Jurists respect internet gambling. From their point of view, all kinds of virtual games, as long as they are not subject to the two conditions of playing with gambling devices and winning and losing, there will be no prohibition in playing them. Gambling is also criminalized in the Islamic Penal Code and the punishment is set for it. Of course, in the Islamic Penal Code, the condition of becoming a gambler and as a result of the game being considered criminal, gambling with gambling devices and equipment or any other means is prohibited. In fact, the legislator has only mentioned gambling because in reality, winning and losing, which are necessary to be considered gambling, are covered in the concept of gambling. Although traditional gambling was criminalized in criminal law, due to the principle of narrow interpretation of criminal laws, it was not possible to punish internet gambling based on existing laws. On the other hand, in the existing laws, betting and lotteries were not criminalized and there was a kind of legal vacuum in this regard, especially in the virtual space, which was solved by the introduction of the single article of the amendment law of Article 70 to 711 of the Penal Code. Of course, although the single article of the mentioned amendment has provided for a monetary punishment, it has dealt with the punishment of imprisonment, which is not compatible with the lawmaker's de-imprisonment approach and criminal policy.

Suicide and taking life from a person is one of the most important crimes against individuals. In the Islamic legal system, the punishment for murder, if it is intentional, is retribution and this punishment is mentioned in the Holy Quran as the source of society's life, but when it comes to Wasted blood people like the apostates, the matter is completely different. According to the importance of the discussion of apostasy and at the same time the ambiguity in the situation of murder of apostates based on this, the purpose of this article is to examine the possibility of Muslim retribution in committing a deliberate crime against an apostate from the perspective of Iranian jurisprudence and criminal law… he upcoming article is descriptive and analytical and has investigated the mentioned question by using the library method. The findings indicate that from the point of view of jurisprudence, punishing the apostate is the only duty of the imam and vice-imam and at the present time, the guardian of jurisprudence has delegated this authority to the courts of justice and it is within the scope of their duties. From the legal point of view, first of all, the Penal Law has not discussed the punishment of the apostate and according to the principle of the law of crime and punishment, the punishment of the apostate is in an aura of ambiguity. The jurists also disagree about the way to punish the apostate, that it is simply not possible for the judge to issue a fatwa. On the one hand, one of the most important challenges of acquitting the apostate murderer and not retaliating against him is that it is difficult to prove the apostasy of the victim. By proving the apostasy of the victim, he will be punished because killing the apostate is one of the duties of the government, but if he cannot prove the apostasy of the victim or prove his mistake in this regard, he will be punished.