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The principles and model of penal punishment (a case study in crimes against security) | ||
| فصلنامه آفاق امنیت | ||
| Article 2, Volume 9, Issue 33, December 2016, Pages 33-62 PDF (360.85 K) | ||
| Receive Date: 28 June 2017, Revise Date: 22 February 2023, Accept Date: 19 September 2018 | ||
| Abstract | ||
| Deterrence, as one of the goals of punishment, has forced thinkers and legislators to take steps to reduce the number of crimes and achieve the goal of deterrence through the mechanism of severity and certainty of punishment or the combination of these two features. According to the difference of opinions about the effectiveness of these two strategies, in reaching the goal of deterrence from the four approaches of severity of punishment along with its certainty,[1] lack of severity of punishment and certainty,[2] severity of punishment and uncertainty[3] and lack of severity of punishment and certainty[4] Used. Basically, the use of any of the mentioned approaches in the legal system of any country, which is one of the essentials of planning and economy of a legal system, does not prevent the wise legislator from using the other three theories. However, the dominant theory in Islamic law and also in Iran It is severity and uncertainty and according to the theory of the criminal process which is mentioned in this article, the punishment is determined and the legislator has taken more steps in this direction in the Islamic Penal Law of 1392 than the Islamic Penal Law of 1370. This article tries to identify the foundations and model of penal punishment in Islam and Iran, with a special look at crimes against security in Iranian criminal law, to show that although the intensity and uncertainty model is a theory for general crimes in the approach of Islam, it is It is not an obstacle to use other approaches when necessary in the field of specific crimes. Therefore, in crimes against internal and external security, according to the political and security conditions, the model of severity and determinism is the rule, and the determination and implementation of severe deterministic punishment in crimes against security is on the agenda of the legislature. [1]. This approach, which is more similar to dictatorial systems, has been observed in American criminal laws. [2] In Europe, according to Montesquieu's theories in the spirit of laws, which support light punishment and criticize harsh punishments and insist on reaching the goal of deterrence with emphasis on certainty, as well as Beccaria's theoretical imitation of Montesquieu, this theory has been used. [3] This approach is more similar to the penal systems of Islam, Iran and China. [4] This approach does not create much deterrence and is not considered in principle and is generally used to declare values by the legislator. | ||
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