Abstract:
Crime is the fundamental and first pillar of the four pillars (crime, offender, punishment and victim) of criminal law and it shows the importance of common norms and values so that their violation is considered undesirable and unacceptable and is subject to punishments and reactions. In all national and international systems, one of the main functions of criminal legislatures is to define crime in a way that includes all its components and elements in a comprehensive and preventive manner. A brief view of Iran’s criminal acts from the Constitution era until now, confirms this task, because without any exception, the first attempt of criminal legislatures is to define crime in general. “Actus Reus” and “legal element or official expressions” are common elements of crime in the study of various definitions of crime all over the world, but the third mentioned element that is considered as one of the main components of crime in many books of criminal law (Mens Rea or mental element) consciously or recklessly is missing in crime definitions. Therefore, this basic ambiguity can be raised and, finally, crime has two elements (legal and material) or three elements (legal, material and mental). On the other hand, the relationship between the mental element and criminal responsibility in defining crime is unclear. Is criminal liability the other form of Mens Rea, or is criminal liability a subset of criminality and will essentially be the next stage after committing a crime? These key ambiguities are examined in this article and a new look is taken at the traditional and classical concepts of general criminal law. The research method in this article is analytical and descriptive and current and former acts and regulations and the expert views in this field have been reviewed and analyzed. The result of this study and analysis is the separation of criminality from criminal responsibility by resorting to imputability in which the mental element can also be explained.
Machine summary:
, by paying attention to the purely harm-based view of the basis of criminalization, considering crime as having two elements is more in harmony with the reality of human society; because when we consider crime as behavior contrary to the collective conscience, public sentiments, and the will of the majority, and we refer to the listing of these behaviors in the official text and resolution (legal element), in fact, with their occurrence in reality and in the external environment of society, the objective public order is disrupted; such as the crime of intentional murder, which with the occurrence of another killing in society, this prohibited behavior in law has taken place, but whether the material perpetrator of this prohibited behavior is also punishable or not, is an issue that does not relate to the occurred criminality, but rather returns to the capacity for blame or reproach, or the same capacity for attribution and the possibility of establishing criminal responsibility regarding him.
In this case, one could hold the view that the reason for not mentioning the psychological element in the definition of crime in Article 2 of the Islamic Penal Code of Iran, despite explicitly mentioning the legal and material elements, is precisely this characteristic of the rational animal nature of human beings, who, unlike other living creatures, do not act based on instinct and have complete control over their actions, behavior, conduct, and thoughts; for this reason, when they perform an action, that behavior must be considered intentional until, at the stage of connecting this crime to a human perpetrator, he or his lawyer proves otherwise in the face of the criminal phenomenon and For this very reason, the opinion has been that when an interpretation is in accordance with the principle, there is no need for explicit mention, and such explicit mention will merely contain a reinforced emphasis.
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