Critique of the criminalization of pretending to be a forbidden act in Iranian criminal law

Subject Areas : Specialized Quarterly of Judicial Law

yavar jalaeian saleh ¹ (PhD , Department of Criminal Law and Criminology, Semnan Branch, Islamic Azad University, Semnan, Iran)
mahdi momeni ² (Visiting Assistant Professor, Department of Criminal Law and Criminology, Islamic Azad University, Semnan, Iran and Assistant Professor, Payame Noor University (Corresponding Author))
alireza saberyan ³ (Assistant Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Semnan Branch, Islamic Azad University, Semnan, Iran. (Responsible author))
Mohammad Rouhani Moghaddam ⁴ (Assistant Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Semnan Branch, Islamic Azad University, Semnan, Iran. (Responsible author))

Received: 2021-11-12 Accepted : 2022-07-21 Published : 2022-07-23

Keywords: criminalization, criminal law, haram action, Penal laws,

Abstract :

AbstractThis study was conducted with the aim of recognizing the nature of pretending to commit a forbidden act and evaluating its position in the jurisprudential-legal dimensions and in terms of the method of data collection as documents and in terms of the method of data analysis by descriptive-analytical method. In Article 638 of the Islamic Penal Code (approved in 1996), pretending to commit a forbidden act is considered a crime. The ambiguity of the mentioned title, due to the lack of expression of its examples in the criminal regulations and the inadequacy of the legislator in determining the punishment for the forbidden act in this article, has faced many problems in its implementation. In the present study, by referring to the sources of Islamic law, the principles of the constitution, the principles of criminal law and judicial procedure and doctrine, the method of legislating criminalization in the mentioned article and the need for the legislator to pay attention to Sharia and constitutional principles and rules of criminal law And we came to the conclusion that if the legislative will is based on criminality to commit haram acts, it must define and specify its instances precisely in the penal regulations. Before amending this article, criminal judges are presumed to observe the principle of legality of crime and punishment and the principle of interpretation of criminal law in favor of the accused, citing Article 37 of the Penal Code, in cases of lack of text, ambiguity and conciseness, in a more balanced way. And act closer to the goals and purposes of the Shari'a and in many cases issue a verdict of innocence to the accused.