Document Type : Original Article
Highlights
In order to commit a crime, three psychological, material and legal elements need to be combined. In the current legislative situation, the obstacles to criminal responsibility are divided into two categories: justifiable factors and factors that mitigate criminal responsibility; But the lack of some elements can generally prevent the realization of the crime, which is important in the course of judicial administrative affairs of the prosecutor's office. This research has been done by analytical-descriptive method and its purpose is to investigate the effects of the new establishment of obstacles to the realization of crime on the administrative procedures of the prosecutor's office. It was concluded that the boundary between the obstacles to the realization of the crime is confused with the two current institutions mentioned in the Islamic Penal Code, which need to be separated from the legal point of view. In case of non-fulfillment of the crime, many of the criminal proceedings which are considered as the principles of judicial administrative law, such as prosecution order, security and arrest of the accused; It should be canceled and the investigation should take another direction. In fact, judicial authorities will not deal with the perpetrator in the same way as the criminal. In this regard, it is necessary for the judicial officers to have a more complete administrative coordination with the judicial system so that the administrative procedures of the criminal proceedings regarding the aforementioned new establishment can be implemented properly. A special and partial handling of the issue of crime attribution is also needed in the new establishment, which requires close and untimely cooperation between two judicial institutions, the prosecution and the court.
In the current judicial-administrative system, as soon as a crime is detected, the investigation process starts from the prosecutor's office. Committing a crime is an illegal act/omission due to the occurrence of three elements: 1-material, 2-psychological and 3-legal. Despite the fact that "K.A.D.K." is the main legal source regarding the administrative-judicial procedures of criminal issues, but this source did not say anything about the elements of the crime and during the investigation, "K.M.A. it has an important role. Therefore, assuming that a crime has been committed, the prosecutor's office tries to secure the accused, and finally, during the proceedings in the criminal branch, the criminal may be exempted from punishment due to some factors. In fact, the perpetrator of the criminal act is considered guilty and administrative-judicial formalities are applied to him; But in the end, by proving his guilt, he is exempted from punishment. This is despite the fact that according to the important theories of criminal law, some factors of impunity generally hinder the realization of the crime, and if the establishment of "obstacles to the realization of the crime" is established in the criminal law, during the judicial-administrative procedures, the accused from the beginning of identification, He can benefit from the benefits of prohibition of prosecution. Therefore, in case of modification of the facilities mentioned in "Q.M.A", the administrative flow of judicial investigation will be affected in general.
Khaleghi and Rajabi (2012) analyzed a type of criterion in the psychological element of the crime of intentional homicide with a comparative perspective. Bigleri (2016) examined the psychological element of the international crime of genocide in jurisprudence and law. Salehabadi and Tudeh (2016) investigated the role of will in the psychological element of crime. Imani (2018) also applied the characteristics of the psychological element of crime in the legal system of Iran and England.
As it is clear, criminal law research has mainly focused on the substantive analysis of criminal responsibility. However, no research has been done regarding the boundary between the establishment of obstacles to the realization of a crime and its confusion with the two establishments of "crime justifying factors" and "obstacles to criminal responsibility", and this research has addressed this issue for the first time. At the same time, with the new establishment, the administrative procedures of the prosecutor's office, from where the criminal investigation begins, will also be affected. Therefore, the innovative aspect of the current research is to examine the border between the three institutions of criminal law and its effect on the administrative process of the prosecutor's office.
In this research, first, its basics, including the administrative procedures of the prosecutor's office and the effect of criminality, were examined, and then the obstacles to the realization of the crime were analyzed from the point of view of criminal law. In the next topic, while examining the administrative principles governing the handling of crimes, the ground is provided to identify the gaps in administrative law, which is discussed in the final topic. Finally, the conclusion was made and based on it, suggestions were presented to the relevant officials.
It is assumed that in the case of the proposed establishment, the administrative procedures for dealing with crimes will be as simple as possible in the prosecutor's office, which will optimize energy and time in the judicial administration process.
The purpose of the research is to investigate the effect of the new establishment of obstacles to the realization of crimes on the administrative-judicial procedures of dealing with crimes.
The research question is, what is the effect of the establishment of "obstacles to crime" on the administrative-judicial process of dealing with crimes?
The judicial system in its own way has a special administrative system that originates from its judicial nature. Due to the fact that the administrative system has a deep connection with executive issues, the executive branch is considered as the head of the country's administrative system, and the governors are considered high administrative managers at the provincial level. Although the judiciary is independent from the executive branch in terms of administration and management, this branch also needs a driving force and deals with executive-administrative issues in the scope of its affairs. In fact, the administrative system of the judicial branch is independent from the executive branch only in terms of communication, but in terms of administrative nature, it is almost the same as the executive branch. Due to the special importance of the judiciary in the country, the administrative procedures for dealing with cases are regulated by the legal source called "Procedural Code", which is different in civil and criminal matters. Therefore, the administrative flow of the judicial system will be in the framework of the procedure in the first stage, and then it will be within the authority of the authorities, in the form of issued circulars. The discussion about the flow of civil lawsuits is out of the current research, and in this section, the administrative-judicial foundations of dealing with crimes have been analyzed.
All crimes are investigated by the prosecutor's office, and after the initial investigation, the case is sent to the criminal branch of the court for a verdict. The administrative-judicial affairs of dealing with crimes are discussed in a separate part of the criminal procedure, which is known as the criminal procedure. This legal source has been modified many times
It took a long time and finally its last reforms were done in 2014. This source is considered the most important source of administrative law in the process of dealing with crimes. According to its first article, "Criminal procedural code is a set of regulations and rules that are used to detect crimes, prosecute the accused, preliminary investigations, mediation, peace between the parties, proceedings, issuing decisions, methods of protesting decisions, implementing decisions, determining duties. And the powers of judicial authorities and bailiffs and respect for the rights of the accused, the victim and the society are established.
Based on the results of the research, it is suggested to the legislator of the country to define the border between the three institutions of "crime realization", "criminal liability obstacles" and "crime justifying factors" by establishing the new "obstacles to crime" in "K.M.A." . Secondly, by amending some of the provisions of "K.A.D.K." from an administrative point of view, it has provided a cooperation mechanism between the prosecutor's office, the court and the judicial officers in order to prevent the prosecution of non-criminal defendants in order to simplify the judicial administrative procedures of criminal cases while respecting public rights. to do
Therefore, in the case of the establishment of obstacles to the realization of the crime and the amendment of the two current establishments, the administrative flow of the prosecutor's office will continue to work in the simplest possible way, and this will protect the rights of the accused and the criminal and optimize the time and cost of the administrative system of the judiciary.
According to the opinions of prominent criminal lawyers, some of the obstacles to criminal responsibility or justifiable factors of the crime are actually considered to be obstacles to the realization of the crime, which the legislator has wrongly mentioned the current establishments.
However, in the current situation where there is no establishment of "obstacles to the commission of the crime", the prosecutor's office is required to demand security from the accused until the end of the proceedings.
It was concluded that based on the current laws, if any of the elements of the crime are distorted, the investigation is stopped and a restraining order is issued to the accused, and this is considered a legal matter based on administrative-judicial law.
It was assumed that in the case of the proposed establishment, the administrative procedures for dealing with crimes will be as simple as possible in the prosecutor's office, which will optimize energy and time in the judicial administration process.
The research question was, what is the effect of the establishment of "obstacles to the realization of crime" on the administrative-judicial process of dealing with crimes?
