نشریه پژوهش های حقوق جزا و جرم شناسی
پیاپی 2 (پاییز و زمستان 1392)

Penal instrumentalism means resorting to criminal matters as the most accessible instrument to achieve any goals and goods for a quick and easy resolution and relief of a problem, by ignoring the evident legal and moral principles. In this essay for answering to what contexts reveal the penal instrumentalism in the criminal policy systems, we numerate two set of factors: first, theoretical contexts involving theoretical foundations which, if will be accepted by criminal policy makers, they will contextualize instrumental usage of criminal matters. Political foundations, criminal policy models, and moral bases are embedded in this category. Second, the practical contexts mean those facts and circumstances which if exist, can actuate criminal policy makers, aside from their theoretical foundations, to penal instrumentalism. Domination of instrumental rationality and monologue in the public sphere, power and authority relations, and finally individual characteristics of criminal policy agents are embedded in this category.

Recognition of foreign criminal judgment is one of the methods of international criminal cooperation. This method can be applied through extradition, transfer of prisoners, execution of the sentences and cooperation in criminal matters conventions. The recognition of foreign criminal judgment had faced some challenges and restrictions from beginning, and in Iran there are some religious restrictions, as well. In this paper, the basis and one of the aspects of the recognition of the foreign criminal judgments, that is, enforcement of foreign criminal judgments and acceptance of their effects, and its importance in Iran legal system will be discussed. It will be mentioned that, in this regard, foreign criminal judgments are recognized in individual cases, and when the recognition is required and useful for Islamic republic of Iran.

In July 2002, the Rome Statute of the International Criminal Court came into force and International Criminal Court was established. It was indeed a significant moment in international criminal justice. ICC is a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” which include “genocide; crimes against humanity; war crimes; and the crime of aggression. The African region played a great and active role in the founding of the Court. However, the fact that all accused persons presently before the Court are Africans has raised speculation that the ICC is targeting only Africans. This perception was further exacerbated with the indictment of President Omar Al Bashir of Sudan. Consequently, the African Union has resolved to cease cooperation with the Court with regard to the arrest of Al Bashir. Therefore African countries have come to be critical of the ICC and relations between Africa and the court are currently severely strained. In fact, the African Union has asked its members to implement a policy of non-compliance and non-cooperation with the ICC. For the court to remain a credible institution for the execution of international justice, the recent challenges may be a great danger and should be taken seriously.

The silence of penal legislator on legal persons before the ratification of the Islamic Penal Code in 2013, had led to absolute immunity of legal persons from criminal liability in Iran legal system according to the legal principles However the law ratification opened the way of criminal liability of governmental legal persons in the exercise of Policies in addition to the criminal liability of the legal persons as a general theory. This article explains the theory choice of legislator by criticizing the first view.

Iranian legislator to avoid deliberated damages to bankrupt creditors have forbidden bankrupt trader to make out his assets of reach of creditors. In otherwise, he is considered as fraudulent bankrupt. In addition, intervention of third party or administrator (of assets) in bankrupt assets has been considered as an offense. The civil effects of these criminal intervention, is to restitution of property and compensate a loss and finally annulations of a bargain.The Author`s efforts in this article is the legal analysis of effects of third party and administration intervention in bankrupt assets in according to third season of twelfth chapter of Iranian trade law.

The principle of Legality leads to the fact that a significant number of jurisprudents consider Custom as one of the guidance resources. The analysis of Custom impact on legal concepts and inference of criminal articles clarifies that custom should be taken into account in correct understanding of law and it cannot be denied by lawyers and judges in theory and practice. This article shows that the mental element of crime and factors of criminal responsibility deterioration are not based on abstract criterion. It also determines Custom role on the above mentioned items. Since the legislator does not define the legal factors of criminal articles, Custom should come into discussion. Moreover public manners in society are utilized as a Custom criterion in evaluation of mental factors leading to criminal behavior. Thus, Custom is considered as a mandatory resource.