فصلنامه پژوهش حقوق کیفری
پیاپی 28 (پاییز 1398)

Despite the fact that the depenalization has been policy in the last decade in Iran, But Policy enforcers or its implementers have been less concerned from the perspective of policy analysis. While, these enforcers play an important role in the implementation and development of this policy with their vote and authority. Therefore, the evaluation of the role of policy implementers is the subject of this article. for this purpose, the actions of the head of the judiciary, Judges of the Criminal Courts, Appeals courts, Supreme Court, Deputy of the execution of criminal sentences, Prosecutor's Office of Judges, Amnesty & Discounted Commission and Councils on Prisoners Affairs are organized in four levels: policy making, sentencing, Suggestion and Supervision. This typology indicates that despite taking measures and actions in this regard, implementers can be more active by implementing the legal grounds and authority. as well as it seems that the matching of implementers is necessary to balancing the its development.

From the basic and controversial issues of Ta'zir, the issue is the amount of ta'zir. An issue with two completely opposite approaches. In the first approach, some jurisprudents have expressed different opinions, sometimes incommensurable, about the amount of ta'zir, with the sole emphasis on the terms of some narratives or following their previous jurisprudents, which makes it impossible to obtain a single theory. In the second approach, other jurists, according to other narratives, as well as the phrases of the narrations of the ta'zir, have given the theory, without specifying the amount for ta'zir, that the ta'zir is indeterminate and entirely in the hands of the Imam or the ruler, so as to determine the amount of expediency. In this paper, with full text in all jurisprudential books, all theories of early to contemporary jurisprudents are collected, categorized and criticized. By examining theories of the first approach and the implications for them, the second approach is due to the acceptance of the arguments mentioned, discretion and explanation.

It is possible to consider regional criminal law as the third domain of international criminal law beside two other domains including crimes with an exterior element and international crimes. European Union criminal law is the best example of a regional criminal law under which some organizations and regulations are provided in the Union level. Doing so, pursuant to the creation of a criminal jurisdiction in a regional level, different institutional and normative mechanisms are realized in order to prevent and suppress the crimes. This article is to explain European arrest warrant, as one of those aforementioned mechanisms, that based on mutual confidence and judicialization of the extradition procedure make simpler the surrender of accused or convicted persons than one related to extradition. To do so, concerned acts are analyzed in order to explain juridical nature and procedure of this warrant and also to make clear its differences with extradition. Consequently, execution of European arrest warrant instead of extradition, regarding to expansion of transnational criminality and simpler circulation of individuals amongst countries, can better realize criminal justice.

Request for criminal or criminal prosecution of cross-border offenses in the territory of the European Union has a pattern of mutual cooperation, the principle of mutual recognition and the provision of criminal investigations. This is an alternative approach to the Transnational Criminal Procedure Code and to the harmonization of the internal rules of the member states of the European Union, which now does not provide for the conditions for its implementation in the European Union. It is believed that the field of harmonization of the domestic laws of member states is consistent with the principles of the criminal procedure with the experience of mutual cooperation, mutual identification and criminal investigation. However, the principle of mutual recognition and criminal investigations has serious gaps that, until these problems are resolved, there is no prospect of harmonizing the internal laws of the member states. Mutual identification or criminal investigation of non-criminal acts that are subject to the termination of the law, differences in the standards of criminal law, or in conflict with national sovereignty and red lines have failed. Same is true of the adoption of the Transnational Criminal Procedure Act and the harmonization of the laws of member states in the future.

Conspiracy in Egyptian Legislation is divided in two parts; General conspiracy and particular. Legislator of Iran in article 610 and 611, in the law of ta,zir, Have talked specially about conspiracy. In the first one has Generalized Criminalization of conspiracy into all offence against Internal and external security and in the second one has depend it into prepare of executive acts and Failure because of a cause outside the will. Unlike the Iranian legislator that has taken all conspiracy with any degree as a crime in Egyptian Legislation it embrace just Offenses and crimes. Also in particular conspiracy the Crimes are separated exactly and can't be leaded to Muharebe while in Iran's law it can be result in Muharebe in conspiracy against security and in other crimes its retribution hasn’t any fitting whit offences against security. This article, that come to end whit Analytical and comparative method, has considered The law of Iran and Egypt and Legal doctrine and Expressed Difference and similarity and pay attention to distinctions between them and recommended Iranian legislator to added some acts and promote law.

Expediential criminalization is the group of criminalization which are legitimized based on the principle of expediency. Expediency is a common and widely used concept for which different interpretations exist. Therefore, in this study, clarification of the concept, boundaries and determining its criteria and their impact on the criminalization are first addressed and then the position of expediential criminalization is studied in the Islamic republic of Iran government. In the Islamic republic of Iran, the criterion for expediential criminalization is the benefit of the government. The reference for determining it is the council selected by the leader known as “the expediency discerning council”. In some cases, this institution has the right to cross the principles and provisions of the constitution and Islamic laws. This type of expediency has an important impact on the criminalization due to which criminal, political, and periodical inflations and reactive criminal laws occur and it faces various challenges such as political, legal, ethical, religious, and human rights challenges.

In spite of the notorious jurisprudential view that the inheritance of the right of retribution for couples is reserved for other heirs, the legislator, in Article 351 of the Criminal Code, considers that the couples are deprived of this right. It seems that most of the Imams have been sentenced to this ban only by citing and relying on the reason for the consensus without considering that the sentences were influenced by the pre-Islamic Arab community.The present study, while criticizing the reason for the alleged consensus and other arguments for the exclusion of couples from the right to qisas, has proven that the validity of the alleged consensus has not been proved and is not capable of coping with publicity and communication; and, accordingly, the said evidence to exclude couples from The right to retaliation is not sufficient and, based on evidence such as the signature of the reprisal sentence and the changes in the status of couples from the time of the decree to the present, prove the couples' equal status with relative relatives in enjoying the right of retribution;

In justifying a differential criminal prosecution of economic crimes, there are three basic criteria: first, the characteristics of the perpetrator, influence, or intent that the victim of economic crime has a high risk. The same does not mean that criminal prosecution can not trap such offenders. Second, the character of the nature of criminal behavior: economic crime, which sometimes accompanies economic disruption or economic corruption, the economic crime is a threat to the economy and beyond, national security. Third, the consequence of crime, which brings economic crime closer to corruption. The selection of each of these three measures can justify the differentiation mechanisms of criminal proceedings for economic crimes, but each has challenges and shortcomings that may offset the legality of the case, along with the definition of differential treatment. The present article specifies that in the criminal system of Iran, economic crimes are more than the result of a differential offense that results from the triple bond of media activity, the political and economic situation of Iran, and the position of the perpetrator for communicating with executive agencies. These three factors simulate economic crime, whether it be a criminal offense, and a differential criminal procedure based on this principle.