نشریه قضاوت
پیاپی 111 (پاییز 1401)

Punishment has two legislative and judicial dimensions. This criminal process leads to sometimes complex equations, which can be pointed out in comparative studies. In this research, which was carried out based on the descriptive-analytical method, by considering the criminal systems of different countries and analyzing the spirit of criminal laws in the field of crimes against family rights and duties, it was answered that the penal system governing crimes against How are family rights and duties? And what distinctive features does it have? Finally, the question of which is the optimal punishment system in this field was addressed. In the first step, by studying the types of punishment systems (crime-based, offender-based, and guideline-based) and in the second step, by referring to the family protection law and the 19th chapter of the Tazirat book under this topic, and counting the principles governing the spirit of the laws through criminal examples. , the ruling criminal system in crimes against family rights and duties was identified as a criminal-centered model. The key features of this approach are paying attention to the reality of criminals, considering the principle of individualizing punishments and the necessity of observing the principle of proportionality of crime and punishment. Finally, the optimal punishment model in dealing with these crimes; A guideline-oriented system was identified. In the guideline-oriented approach, in addition to reducing the confusion of votes in similar cases, it can increase their strength and provide a specific model for judges in choosing punishments.

Unfortunately, the lack of a clear and specific definition by the legislator regarding the offense of defying chastity and illicit relationships has resulted in violent judicial opinions and numerous disagreements in the courts today. Today, in the prosecutor's office, what is taken into consideration by considering the documents and contents of the submitted cases is that; Often, investigating judges, relying on the application of Article 306 of the Criminal Procedure Law approved in 2013 with subsequent amendments, and on the one hand, due to the lack of a clear definition in this regard, refuse to enter into such cases in an appropriate manner and immediately refer the case to the court. They send the court. What is useful from the present research is that regarding the handling of cases against chastity, first, in terms of jurisdiction, a distinction should be made between physical and non-physical behaviors committed, and secondly, the lack of jurisdiction of the investigating authority in handling These cases are incorrect in terms of application. Thirdly, in order to enter the said cases, the conditions mentioned in Article 102 of the Criminal Procedure Law approved in 1392 with subsequent amendments must be taken into account, otherwise the best possible option is to terminate the case by issuing a suspension of prosecution order according to Article 383 and Paragraph C of the Article. 389 of the above law. Fourth, in cases where the prosecutor's office does not consider itself competent to handle the case, sending the case to the court is incorrect and should be dealt with only by issuing a judicial order.

One of the inalienable rights of man over his property is the right to transfer it. The owner's ability to take possession of any property is a general rule in all legal systems, which of course has exceptions. The purpose of this research is to investigate the approach of Shia, Sunni and civil law to the transfer of the right of intercession. This article has analyzed the right of intercession and whether it has the ability to be transferred using documentary sources. The findings of the research show that the right can be transferred if it has property, which was proved for the right of intercession.Another thing is that for the transfer of the right of intercession there are conditions such as the realization of the sale transaction, immovable property, and the existence of a partnership. Based on the results of the research, firstly, the right can be transferred if it has property. Secondly, the conditions for the transfer of the right of intercession prove that it cannot be transferred to another. Thirdly, there is no difference between the Shia and Sunni jurisprudence and the rulings of the civil law. Fourthly, regarding the transfer of the right of intercession to the heirs, with the explanation that a person's heirs are the continuation of his financial personality, therefore, it is not necessary that the voluntary transfer to foreigners and the forced transfer to inheritance are subject to a ruling, the transfer of the right of intercession to the heirs is possible. It is accepted.

In determining the meaning of texts, including legal and constitutional texts, several interpretive schools such as source-oriented, author-oriented, metaphysical and interpretive can be identified. In the meantime, authorism and textualism is a view that has been the dominant interpretive theory in most legal systems for centuries and is still more or less considered in many legal systems (such as Iran and the United States). The interpretation of the constitution in the author-oriented theory of the intentions and behavior of the legislator indicates that this issue is derived from the school of originism. This theory has been accepted in the principles of Shiite jurisprudence as well as the view of the members of the Guardian Council as a correct and official theory. In the system of the Islamic Republic of Iran, the Guardian Council, which has various powers and duties according to the constitution, has been introduced as the official interpreter of the constitution. Article (98) of the Constitution stipulates in this regard: "The interpretation of the Constitution is the responsibility of the Guardian Council, which is done with the approval of three quarters of them." In this regard, from the beginning of the Guardian Council, continuously and of course with The council has expressed views on the interpretation of the principles of the constitution, known as "interpretive views." The question raised in this research is whether the existence of 6 members of the Guardian Council has an effect on the use of these schools of interpretation or not? Of course, according to the regulations, a limited number of officials have the opportunity to ask the Guardian Council to interpret the constitution.

Explaining the accusation and taking defenses from the accused are among the important issues that determine the fate of the continuation or termination of the preliminary investigation. The question that is raised in this regard is whether, according to the Criminal Procedure Law approved in 2012, it is possible to explain the charge of absenteeism and obtain initial defenses from the lawyer of the absent or fugitive accused? The findings of the research indicate that first; Addressing the accused's lawyer on a temporary basis and until the accused's arrival or presence to hear the first defense is not allowed or prohibited by law, like hearing the last defense of the lawyer from the client. Secondly; There is no fundamental difference between hearing the first defense and the last defense of the accused, and both types of defense can be taken at the same time, therefore, the lawyer has the right to present defenses at both stages. Thirdly; Despite the fact that the addressee of the "Final Accusation Explanation" and the criminal bail order complains about it, but according to the spirit of Articles 3 and 94 of the Criminal Procedure Law approved in 2012, with the aim of reducing the delay of the proceedings and the speed in conducting preliminary investigations, regarding " The client should create a procedure to explain the temporary charge to the lawyer to take the initial defense and determine the fate of the criminal case, and this is not inconsistent with the provisions of Article 178 and Articles 190 to 199, 262 and 263 of the Criminal Procedure Law. This research examines the subject in a descriptive and analytical way.

The importance of recognizing the crime of fraud as a human behavior is not only because it has a special subtlety and similar criminal titles that confuse the judicial authorities and judicial officers. Rather, the difficulty and complexity of this behavior and the special characteristics of the perpetrators of this crime, all of whom are shrewd and intelligent people, and introduces them as white-collar workers; It adds to the importance of recognizing this crime. Especially since the crime of fraud, in today's advanced world, due to the widespread use of advanced technology, has paved the way for a new form of fraud through the use of computers; In the case law, it can be examined in two dimensions: traditional or simple fraud and computer fraud. Another feature of fraud that adds importance and ugliness to this crime; That is, in fraud, the property is given to the fraudster with the consent of the owner of the property, and the person abuses the simplicity and good faith of the people. This is one of the reasons why people show less desire to report and complain, and in the end, all of these issues cause us to not have accurate statistics of scams. In this article, we try to examine the various dimensions of the crime of simple fraud and computer fraud in the relevant laws and with a comparative view of the Islamic State of Syria.