مسؤولیت کیفری شهرداری در سایه ابهام در معیار تشخیص اعمال حاکمیتی و تصدی گری (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
قانون گذار ایران در قوانین مختلفی بدون اعلام معیار خاصی از تقسیم بندی قدیمی اعمال به حاکمیتی و تصدی گری استفاده کرده است و در تبصره ماده 20 قانون مجازات اسلامی مصوب 1392 حکم به ممنوعیت تحمیل مجازات های مقرر بر نهادهای عمومی دولتی و غیردولتی ازجمله شهرداری در اعمال حاکمیتی صادر نموده است. در این مقاله با روش توصیفی-تحلیلی درصدد تبیین رویکرد قانون گذار نسبت به جرایم ارتکابی شهرداری در اعمال حاکمیتی و تصدی گری می باشیم که درنهایت به این نتیجه رسیده ایم اولاً در جرایم مستلزم دیه، قانون گذار به صراحت در تبصره ماده 14 قانون مجازات اسلامی نظر به مسؤولیت کیفری شهرداری فارغ از حاکمیتی یا تصدی گری بودن عمل شهرداری دارد. ثانیاً در جرایم مستوجب مجازات تعزیری نیز علیرغم صراحت تبصره ماده 20 قانون مذکور، با توجه به تردید و ابهام در حاکمیتی و تصدی گری بودن اعمال شهرداری از یک سو و همچنین جرم انگاری قانون گذار نسبت به تمامی اعمال نزدیک به تعریف اعمال حاکمیتی از سوی دیگر، قوانین کیفری ایران در هر دو دسته اعمال، شهرداری را واجد مسؤولیت کیفری انگاشته است.Criminal responsibility of municipality under the shadow of ambiguity in the criteria for recognizing sovereignty and commercial activities
The Iranian legislature has used the old division of actions into sovereignty and commercial activities in various laws without announcing specific criteria. In the note of Article 20 of the Islamic Penal Code enacted in 2013, the imposition of punishments onto the governmental and nongovernmental public institutions including the municipality in the exercise of sovereignty have been banned. In this article, with a descriptive-analytical method, we try to explain the legislator's approach to the crimes committed by the municipality in the sovereignty and commercial activities, Which we have finally could include; Firstly, in crimes requiring ransom, the legislature explicitly refers to the criminal responsibility of the municipality, regardless of the sovereignty or commercial activities of the municipality, in the note of Article 14 of the Islamic Penal Code. Secondly, in crimes requiring discretionary punishment, despite the explicit note of Article 20 of the said law Due to the doubts and ambiguities in the sovereignty or commercial activities of the municipality on the one hand and the legislature's criminalization of all acts near to the definition of sovereign acts on the other hand,Iranian criminal law in both categories of actions has made the municipality criminally liable. 1.Introduction In a traditional division, the actions of legal entities are divided into Sovereignty and Commercial actions. In the field of criminal liability, the legislator of the Islamic Republic of Iran, in his last comment on the criterion of the act of sovereignty in the Islamic Penal Code approved in 2013, has used the said criterion as one of the factors that reduce the criminal liability of governmental and public non-governmental legal entities, including municipalities. In Article 20 of the mentioned law, after the punishments for legal entities have been listed, governmental and public non-governmental legal entities have been exempted from the aforementioned punishments in cases where they exercise sovereignty. In the domestic laws of Iran, despite citing this division in various laws, no criteria and rules have been provided to distinguish these actions. The matter becomes more complicated when we know that before the approval of the Islamic Penal Law of 2013, the legislator implicitly accepted this division only with respect to the actions of the government, However, after the approval of the said law, other non-governmental public institutions, including the municipality, have been declared exempt from punishment in case of committing a crime in line with the exercise of sovereignty. Therefore, first of all, the ambiguity should be cleared about the concept of sovereignty and commercial activities and then the relationship of these activities with different legal entities. This article aims to explore the effect of this division of actions on the crimes committed by the municipality. So, the present article, by researching the existing sources and by resorting to the principles and laws, after resolving the ambiguity regarding the above-mentioned issues, is in the position of responding to the relationship between the sovereignty and commercial activities of the municipality and the criminal responsibility of this institution. 2.Methodology In this research, a descriptive and analytical method has been used, and in this regard, library sources and the opinions of lawyers have been used to finally reach a conclusion that is in accordance with the law and the existing situation in the country's legal system. 3.Results and Discussion In the laws of Iran, there is no precise and clear definition of the sovereignty and commercial activities, and for the first time, the division of sovereignty and commercial activities has been mentioned in the Law on Determining the Authority of Government and Individual Claims approved on 1928 and this division has been accepted in the actions of the government. In this regard, the civil liability law approved on 1960 also refers to this division of actions, in the last part of Article 11, the government is exempted from compensation in case of sovereign actions and damage to individuals. In Article 135 of the budget law approved in 2003, apparently, for the first time, the sovereignty and commercial activities are defined under the role and duties of the government. According to the mentioned laws, there are two opinions regarding the purity of sovereign acts. In the opinion of some jurists, any person who undertakes public affairs listed in Article 8 of the Civil Service Management Law is actually acting as a sovereign, and they have considered public affairs as sovereign affairs. According to this opinion, "If legal entities perform one of the examples of Article 8, according to the explicit text of this article, such actions will be sovereign in any case, and if a crime is committed while doing them, the legal entity will not be in violation of the penal law." According to some other jurists, "sovereign acts are cases in which legal entities under public law perform acts in which they are sovereign and have absolute power, and by means of which they command and control the people, and these acts can be They are not delegated." Our opinion is closer to the opinion of the second group of jurists Considering the above, it seems that the sum of the two conditions of performing the act in a certain way (authority and sovereignty) and non-delegability of actions to other persons is considered as the criteria for determining the acts of sovereignty. However, this confusion and conflict in the laws is due to the lack of rules for distinguishing the Sovereignty and Commercial actions. The ambiguity that has been extended to the criminal laws and in a contradictory action with the previous laws, in addition to the government, also included non-governmental public institutions and exempted both of them from the punishments stipulated in the mentioned article. In approving these laws, the legislator did not use any specific criteria and rules in distinguishing the Sovereignty and Commercial actions. In this article, after mentioning the matters related to sovereignty and commercial activities, we will discuss the sovereignty and commercial activities and the impact of this division on municipal criminal actions from the perspective of laws. In this regard, it is necessary to first base the discussion on principles, so that in cases of doubt, we can refer to those principles and derive the ruling of the case. Then, by checking the actions of the legislator in the approvals related to this division of actions, we came close to the real opinion of the legislator and in the end, we presented an opinion regarding the approach of the legislator regarding municipal actions. Therefore, by reflecting on the laws related to this area, several materials were presented regarding the division of municipal actions into Sovereignty and Commercial and its effect on the criminal responsibility of the municipality, and the following results were obtained. 4.Conclusions By referring to various laws related to the authority and duties of the municipality and the opinions of lawyers and the jurisprudence of the courts, it can be said that first) the Islamic Penal Code, with the approval of Article 14, regarding crimes against physical integrity by the municipality that is liable to pay ransom There is no difference between crimes caused by sovereignty and commercial activities and in both cases, the municipality is responsible and will be sentenced to pay ransom. Second) Despite the prohibition stipulated in the note of Article 20 of the Islamic Penal Code, in the crimes subject to Ta'zir, the municipality is also criminally responsible for the following reasons. 1- The principle of equality of persons before the law and the principle of commercial of municipal actions, 2- Many ambiguities regarding the determination of the criteria of sovereign actions and doubts about the sovereignty of municipal actions, 3- Lack of legal clarity in determining the sovereignty of some municipal actions, 4- Abuse The possibility of the municipality from this division and evasion of responsibility due to numerous crimes committed in the shadow of sovereign acts and 5- Determining punishment by the legislator for acts that are close to the definition of sovereign acts, including the collection of additional tolls, failure to monitor non-compliance with urban planning regulations in construction and issuing construction permits against the principles of urban planning and detailed planning , there are valid reasons for the lack of influence of the division of acts into sovereignty and commercial activities on the criminal responsibility of the municipality in committing crimes that require punishment. Based on the above, it seems that the criminal laws of Iran have adopted a separate approach to the municipality due to the ambiguity in the criteria for determining the sovereignty and commercial activities, despite the approval of the note of Article 20 of the Islamic Penal Code and in the criminal responsibility of the municipality, it does not pay attention to the sovereignty and commercial activities, and the municipality has criminal responsibility in its absolute criminal actions (whether it is caused by sovereignty and commercial activities). Selection of References Abdullahi, Afshin and Farazmehr, Javad (2018), “The possibility of applying the guarantee of criminal executions to legal entities under public law”, Journal of Criminal Law Research , Volume 7, Number 26, pp. 251-284. [In Persian]. Duke Law Journal,(1958), “Municipal Tort Liability: An Abandonment of Sovereign Immunity”, Duke Law Journal ,Volume 7,no 2,. pp.142-149 . Fairgriev.Duncan(2002), State liability in tort , first edition.oxford university press. Judiciary Research Institute (2013), a report of the conference of legal entities: criminal liability and procedural rules , Tehran, first edition, Judiciary Press and Publications Center. [In Persian]. Laski .Harold J(1919), “The Responsibility of the State in England”, Harvard Law Review .Vol. 32. No. 5. Leonard, Steven L.(1979),Municipal Tort Liability: A Legislative Solution. Balancing the Needs of Cities and Plaintiffs, “Urban Law Annual ; Journal of Urban and Contemporary Law” , Volume 16. January. PP.305-329 Mousavi Mujab, Seyed Darid and Rafi Zadeh, Ali (2014), “scope of criminal liability of legal entities in Islamic Penal Code ”, Journal of Criminal Law Research , 4th year, 13th issue, pp. 147-169. [In Persian]. RooholAmini, Mahmoud (2007), “Transformations of the criminal liability of legal entities in the French legal system” , Islamic Law Journal , Volume 4, Number 16, pp. 129-156. [In Persian]. Sadeghi, Salar, Fani, Reza, Motheghi, Hassan (2019), “analysis of the criminological foundations of the criminal responsibility of the government”, Criminal Law Research Journal , 11th year, 2nd issue, pp. 129-105. [In Persian]. Sharifi, Mohsen (2014), Criminal responsibility of legal entities in Iranian and English law , first edition, Tehran, Mizan publications. [In Persian].
تبلیغات
