In The Name Of God
Alternative provisions of Articles 120 to 125 of the Penal Code of 1983 (with conspiracy and fraud in business and commerce) and invalidity of these articles
By: Kioumars Sepehri
Introduction:
After the approval of the Penitentiary Department and the deterrent punishments of the Islamic Penal Code in 1996 and its entry into force and the non-mention of some actions and behaviors that were recognized as a crime in the Penal Code adopted in 1983 and lawyers were familiar with them and in cases of necessity There was a suspicion that some criminals had been removed from the list of crimes. Are they or not? Among such actions and behaviors that are mentioned in the Islamic Penal Code No, the crimes of conspiracy and fraud in business are the subject of Articles 120 to 125 of the Penal Code of 1983 (Articles 242 to 249 of the General Penal Code). What are the reasons for not specifying and legislating in these cases? And are there any rules and regulations that fill the gap due to non-approval of crimes in this regard? What is examined in this article is only crimes subject to Articles 120 to 125 of the Penal Code. is.
The first issue: the obsolescence of Articles 120 to 125 of the Penal Code
It seems that the articles of the Penal Code adopted in 1983, about which the Islamic Penal Code of 1996 did not specify, are obsolete and cannot be cited, because:
1- The law of 1983 is temporary and experimental and its validity period has expired and knowing such a law or materials from it requires a clear text and strong reasons and there is no such text and reason, so there is no doubt that they are obsolete. There is no opinion of some lawyers. (1)
2- On the other hand, if we have a theory other than what has been mentioned, we should consider all titles and articles that are not mentioned in the Islamic Penal Code of 1996 but have a history in the Penal Code of 1983 or the General Penal Code as valid and binding. While this is unreasonable and contrary to the custom and logic of law, and this issue is less accepted by jurists (even non-jurists) and common sense also refuses to accept it, in addition to the fact that the principle and basis of the law has disappeared and It has been abrogated, and its subdivisions cannot be invoked in the first place.
This article was written in 1999.
3. The Islamic Penal Code adopted in 1996, in addition to the provisions of the Penal Code of 1983, has collected many miscellaneous laws and articles and titles that did not exist in the Penal Code, so there is no reason why the legislator did not include some articles of the Penal Code in the new law. However, it should be considered valid, in the first place such regulations should be considered obsolete because the legislature is determined to draft a complete law and apparently deliberately did not bring some of the penalties for some reason in the new set. The clear reason for the legislature's view is the invalidity of the material.
4. At all times, the legislature is particularly sensitive to certain issues and neglects some matters and considers them insignificant, and many of the actions and behaviors of certain individuals and groups of people at any time are criminalized and punishable. He does not consider it a crime at other times, although it may be contrary to public morality and to the detriment of a particular person or persons in society, and there is no reason for an act to be a crime when it has always been recognized by the legislature. Punishment should be determined for it. In any case, any person affected by these acts and behaviors can seek compensation through civil liability. Forty principle of constitutional law, civil liability law, rule, rule of causality and have given permission for this to work.
5. Article 729 of the Islamic Penal Code and its amendment have repealed all contradictory laws, and according to the above explanations, the articles of the Penal Code that are not mentioned in the Islamic Penal Code seem to be contrary to this law and are obsolete. In addition, the law of former punishments, because it is temporary, did not need to be mentioned, because it was not valid to specify the copy.
6- It is against the principle of legality of crimes and punishments (which has been emphasized by the Constitution and ordinary laws) to be considered as enforceable articles (2) because in this case the accused is punished according to the law, which is for a limited period of time and duration. Its validity has expired, and the new law explicitly states the details of the same law, but has not discussed our subject in any way. That is, under the new law, such acts may not be a crime, although they may be civilly liable. In addition, the principle is justifiable, meaning that no court has explicitly criminalized or punishable a legal act. It can punish a person on the basis of the current commission, which is not mentioned in the penal code as a crime. Also, the requirement of the rule of interpretation of suspicion in favor of the accused confirms the same issue. And there are other pillars. If there is any doubt, the accused will be acquitted and the principle of innocence and innocence will be applied. We consider the act to be permissible from the point of view of punishment. Also, in this regard, we can follow the rule of Dara (which according to many Islamic jurists in punishments). Be) and ((originally preferred Amnesty mistake on mistake Criminal)) be invoked.
7- "The rule of ugliness of the eagle without expression" which is fully observed in Islamic law, especially Islamic penal law, means that punishing without explicit expression of crime and punishment and legal clarification of it is ugly and this rule is completely It is also observed in criminal matters. Also, from the verses of the Holy Quran, especially the holy verse ("There is no god but God, except for the verses") (3) (God does not obligate anyone to do anything unless the ruling and the law apply to it). (4) (4) (We do not punish anyone before the Prophet is aroused and the law is brought by him) (5) and the provisions of the hadith of elimination and other hadiths, this position It is inferred that no one can be punished without a definite law and a certain punishment.
8- Rational reason and that everyone simply and initially when he considers that a law has been for a certain period of time and that period has expired and the first inference is that there is no longer a need to follow that law, therefore punishing individuals It is contrary to common sense to cite such citations.
9. The judiciary also believes in the abrogation of the substance of the matter in question, and if the subject matter of Articles 120 to 125 of the Penal Code is raised, they will not invoke these articles and may convict the accused in accordance with other laws, such as the Legal Department. The Judiciary has stated in consultation theory No. 3583 / 7-25 / 5/76 (6) ((The validity period of the Penal Code of 1983 has expired and another law has been approved instead, and therefore there is no longer a license to cite it, Article 729 of the Islamic Penal Code confirms this, and what has been said about fraud in business in Article 120 et seq. The Expediency Discernment Council of 1988 and a part of the Law on Amendments to the Laws and Regulations of the Institute of Standards and Industrial Research, approved in 1992, and what is left of the provisions of those articles are considered penal, in other words, by removing the above in the law of the year. 1996, as the case may be, the above-mentioned rules and regulations can be applied and cited in accordance with the act committed).
It is unlikely that the court will be able to convict a person and convict his conscience and punish the accused in order to convict him personally of the acts and actions mentioned in Articles 120 to 125 of the Penal Code. How can a person be punished according to the articles of the repealed law? What is the solution?
Second topic: Reasons for not mentioning the provisions of Articles 120 to 125 of the Penal Code in the Islamic Penal Code (7)
Perhaps one of the reasons why the above articles are not mentioned in the new law is less the issue of crimes in the judiciary, but it seems that the main reasons for not mentioning the materials related to the conspiracy and fraud in business are in the penal code. The new Islamist thought that the provisions of those articles were miscellaneous in various laws, so there was no need for the legislature to repeat them in the new law, because:
1- Part of the application of Article 121 of the Penal Code in Article 3 of the Government Penal Code approved on 12/23/1367 of the Expediency Discernment Council (8) and Article 73 of the Trade Union Law approved in 1980 with subsequent amendments (9) and Article 5 of the Law on Intensifying Punishment Expensive sellers approved in 1988 (10) and Article 1 of the Law on Food, Beverage, Cosmetics and Hygiene approved in 1985 with subsequent amendments (11), as well as Article 11 of the Law on Amendments to the Laws and Regulations of the Iranian Institute of Standards and Industrial Research (12).
2- Article 9 of the Amendments to the Laws and Regulations of the Institute of Standards and Industrial Research, approved in 1992, criminalizes some of the provisions of Article 124 of the Penal Code (ie, the sale of unmarked products) and stipulates: Whenever standard implementation is announced for compulsory goods, then Prohibition of deadlines for production, production, concentration, distribution and sale of such goods with a lower quality than the relevant standard or without the standard mark of Iran is prohibited and with observance of conditions and erroneous facilities and the frequency of penalties and summonses, including summons and sermons. , Reminder, reprimand, threat, and commitment and imprisonment from one month to two years and a fine from one hundred thousand Rials to fifty Millions of Rials will be awarded to the competent courts.
Also in this case, we can refer to Article 34 of the Governmental Penal Code of Health and Medical Affairs approved in 1988 by the Expediency Discernment Council, which stipulates that all producers are required to affix information labels on all their products and manufacturing licenses. And include the expiration date (consumption date) on the products as the case may be. Violation of this is a crime and the offender will be sentenced to the following penalties:
The first time: a warning and a fine of up to two hundred thousand Rials.
The second time: a fine of up to five hundred thousand Rials.
Third time: a fine of up to one million Rials.
3. The bulk of the provisions of Article 221 of the Penal Code are set forth in Article 529 of the Islamic Penal Code adopted in 1996. The article is as follows: In addition to compensating for forgery, he will be sentenced to three months to two years in prison for forging or knowingly forgery.
4- Part of the result of the application of the subject of Article 120 of the Penal Code (i.e., the promotion of prices).:
Article 1: The commission of any of the above-mentioned acts in the following paragraphs is considered a crime and the perpetrator shall be sentenced to the penalties provided for in this law. The aforementioned value and pre-purchase needs of agricultural products and other products required by the public and the like in order to create a monopoly or shortage in their supply.
Article 2: Note 1: In cases where the disruption of the subject matter of each of the cases mentioned in the six paragraphs of Article 1 is not a major or large or abundant case, the perpetrator shall be sentenced to two or five years’ imprisonment and confiscation of all property obtained through legal violation. He will be sentenced to a fine.
5. Paragraph 12 of Article 4 of the Customs Law (13) prohibits the import of goods bearing the mark or name of the enterprise or any other mark or speculation which deceives the buyer and the consumer, and the conceptual part of Article 123 of the Import Penal Code. It is a commodity.
Thus, actions such as: repeated competition (Article 244 of the General Penal Code), violation of other registered signs (paragraph A of Article 249 of the General Penal Code) (14), abuse of other inventions and disclosure of secrets related to the invention to the detriment of public interests. (Article 125 of the Penal Code of 1983) and 2 crimes have not been recognized and the perpetrators are not punishable acts. It is to the detriment of society to commit a crime, an unknown crime, and this can have adverse effects. He cited a variety of laws in the Islamic Penal Code, which provided comprehensive regulations on conspiracy and fraud in business, because with the expansion of industry and production, this required more precise and comprehensive laws. To support the production of competent and healthy people in the field of production and to be able to use the previous laws, especially the General Penal Code. For example, in the case of punitive competition, which was stipulated in paragraph A of Article 244 of the above-mentioned law: And the perpetrator will be sentenced to imprisonment from three months to six months and to a fine of one hundred to five hundred Tomans or to one of the two, competition. What is reprehensible is that a trader, in order to dissuade people from buying or using similar goods, resorted to Chinese means or false ratios, or to any other fraudulent means in general, and directly or indirectly implicitly or explicitly seeks good or bad. It is not clear why the legislature did not criminalize punitive competition. Perhaps the legislator's view was that given the progress of society and the state of trade and its expansion across the country and the increase in public awareness and knowledge. Such actions do not have a practical aspect, or if they do not have practical effects, but it must be acknowledged that competitive competition is currently taking place in more complex and broader ways and requires precise and technical regulations, as some actions may not be possible. Heavy blows to some producers, institutions and companies that operate in a healthy way. Similar to the provisions of the said articles, which are in accordance with the developments and conditions of the day, it is necessary.
Subtitles and Resources:
1) Kalantari-Kiomars- A contemplation in the Islamic Penal Code approved in 1991 and 1996, the internal publication of the Bar Association.
2) Principles 36 and 169 of the Constitution and Article 2 of the Islamic Penal Code.
3) Verse 8 of Surah Talagh.
4) Verse 15 of Surah Isra.
5) The grace of Dr. Alireza. Comparison and implementation in Islamic criminal law. Volume one. Publications of the Ministry of Culture and Guidance.
6) Journal of Judicial Law No. 21 Fall 76. p. 182.
7) The text of the written materials has not been included for brevity, please refer to the relevant law.
8) Article 3 of the Government Punishment Law approved by the Expediency Discernment Council: Low sales and fraud are the supply of goods with services less than the amount and quantities purchased in terms of quantity or quality, which is the basis for determining the rate of official authorities. Retail fines and fraud are exactly the same as retail fines, depending on the amount.
9) Article 73 of the Trade Union Law: Any natural or legal person who sells his goods or products or products at a higher price than the prescribed rate or trades wages or wages in excess of the prescribed and normal amount but receives more money internally or by using materials that are of poor quality and inferior in quality. Specify the specifications of the goods or products or products or the value of the services, or deliver them to the customer in terms of weight or less, or use a measure that More money is received from the customer by paying a fine of ten thousand Rials to five hundred thousand Rials or by imprisonment from six months to one year or b. Both are sentenced.
10) Article 5 of the Law on Intensification of Punishment of Hoarders and Expensive Sellers: Anyone who commits any of the following offenses shall be punished for the first time with a fine of two to five times and for the second time by observing the possibilities and conditions of the crime and the frequency and extent of the crime. From five to ten times the price of goods and services violated in the article and for the third time for non-union members from 10 to 20 times the price of goods and services violated in the article and in the case of union members in addition to the second penalty will be revoked.
1) Selling products or products more expensive than the set rate.
2) Receiving proverbial wages or service wages, in excess of the prescribed amount.
3) Formal transaction at the prescribed rate and application of measures that practically lead to receiving more money than the prescribed rate.
4) The use of substandard materials, which in turn reduces the quality of goods or products or products or the value of services without lowering the price.
5) Supplying ordinary bread with poor quality baking.
6) Delivery of goods less than the weight or quantity to the customer.
7) Illegal transfer of goods assigned by the government to a city or region or a certain population to another city and region or its sale to other persons.
8) The trade union refuses to supply and sell goods or products or products or services in violation of trade union regulations.
9) Refusal of the guild member to give an invoice at an official price or to issue an invoice.
11) Article 1 of the Law on Food, Beverages, Cosmetics and Hygiene: The perpetrator of any of the following acts in food, beverages, cosmetics and hygiene will be sentenced to the penalties provided for in this law: 1) Material supply or sale instead of the other Material. 2) Mixing foreign materials into the material for abuse. 3) Failure to comply with the standard or formula recorded in cases where the determination of the formula and its observance, as well as the standard and its observance is mandatory. 4) Sale and supply of spoiled goods or sale and supply of sex that has expired. 5) Using dyes and essential oils and other unauthorized additives in food or beverages or cosmetics or hygiene or children's play equipment. 6) Making food, drink, cosmetics and health counterfeits.
12) Article 11 of the Law on Amendments to the Laws and Regulations of the Iranian Institute of Standards and Industrial Research: Anyone who changes the specifications of products subject to compulsory standards after preparation, production, or manufacturing or packaging containers and equipment for standardized products for packaging And use the supply and sale of products outside the standard, or for the purpose of fraud or any quality in cans, packages, envelopes containing the contents of products subject to compulsory standard, or to be offered under the same title instead of another sex, or Sell or intend to cheat on test sheets and identify product specifications as well as licenses To use the standard mark of Iran in non-use or to use the standard mark of Iran without receiving a license on its products, will be sentenced to imprisonment from six months to two years and a fine from one million riyals to fifty million riyals.
13) Article 40 of the Law on Customs Affairs: The goods described below are prohibited from entering: 1) …. 12) Goods that on their own or on their envelope is the address or name of the company or other mark or specifications that deceive the buyer and consumer Provide the manufacturer or the place of manufacture or the main properties or specifications of the said goods…
14) Article 249 of the General Penal Code: a) Anyone who knowingly commits one of the following acts in connection with a registered trademark in Iran shall be sentenced to imprisonment from three months to three years and to a fine of one hundred to one thousand Tomans or to one of them. Two will be sentenced. B) Anyone who falsifies another trademark or knowingly uses it to be forged.