salman nasrollahi boroojeni; Mohammad reza kazemi golvardi
Abstract
'Tajarry' is always one of the controversial issues with involved crime in the field of the philosophy of criminal law and on the other hand it is elegantly linked to the philosophy and theology.In criminal law, 'Tajarry' is considered as an impossible crime. Of course, that criminalization is faced ...
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'Tajarry' is always one of the controversial issues with involved crime in the field of the philosophy of criminal law and on the other hand it is elegantly linked to the philosophy and theology.In criminal law, 'Tajarry' is considered as an impossible crime. Of course, that criminalization is faced with a delimma challenges.This article is a discussion of this topic seeking answer to these quastions;First : is proof of punishment for 'Motajarry' stopped on proof of object indecency and subject indecency?Secondly: what is the legal nature of impossible crime?Thirdly: is 'Tajarry' criminalization justified?The approach is that; there is no doubt in 'Tajarry' subjective indecency.And suppossing proof of 'Tajarry' objective indecency proof of punishment is difficult.So 'Tajarry' criminalization as a rule based on religious ethics is not justified.Moreover the reality of criminalization in 'Tajarry' suggests that the islamic penal code (1392) with an ethical approach have been seeking maximum defense from moral blame and this is while based on religious morality defense of the impossible crime, criminalization not justified as a rule.
Abstract
Committing physical behavior is a prerequisite in realization of criminal liability in criminal law. So that nowadays the criminal thought is not a punishable crime in any legal systems of world. Therefore, the criminal responsibility will be created when a man passing by his criminal thought actually ...
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Committing physical behavior is a prerequisite in realization of criminal liability in criminal law. So that nowadays the criminal thought is not a punishable crime in any legal systems of world. Therefore, the criminal responsibility will be created when a man passing by his criminal thought actually do a behavior that the legislator has prohibited it. Nevertheless, it can not be inferred from this rule that committing a physical behavior is a sufficient condition for the realization of criminal liability. Although the former is essential for the later, but it is not enough and it is necessary that this behavior is done with a free will. Accordingly, when offender has no will in doing that behavior, no criminal liability will be fulfilled. This sentence will include simultaneously the strict liability crimes and the crimes needing a mental element. But the important point here should be regarded is detecting that whether the accused had committed the act voluntarily or not. In this article, we have tried ,with a philosophical analysis, to determine the necessary components of voluntary behavior in order to be recognized the involuntary one. It is important to distinguish involuntary behaviors just because it will make the offfender unpunished.
