تحول مفهوم و مصادیق مأمورین به خدمات عمومی در جرایم اقتصادی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
«مأمورین به خدمات عمومی» در مصادیق متعددی از جرایم اقتصادی در قوانین جزایی ذکر، اما مفهوم و مصادیق آن به دلیل نسخ قانون راجع به محاکمه و مجازات مأمورین به خدمات عمومی با ابهام مواجه گردیده است. اگرچه به موجب رأی وحدت رویه شماره ۷۹۸ هیئت عمومی دیوان عالی، کارکنان بانک های خصوصی مصداق مأمورین به خدمات عمومی و موضوع جرم ماده ۵۹۸ قانون مجازات می باشند؛ اما رأی مذکور قابلیت تبیین مفهوم و مصادیق مأمورین به خدمات عمومی را نداشته و آثار آن بر ابهام موضوع افزوده است. مقاله حاضر در راستای پاسخ به چگونگی تحول مفهوم و مصادیق مأمورین به خدمات عمومی، ضمن آسیب شناسی رویه قضایی، دگرگونی گستره و مصادیق مأمورین خدمات عمومی پس از صدور رأی وحدت رویه مذکور را اثبات و در نهایت راه حل پالایش قانونی این ابهام، از طریق تصویب ماده واحده جدید، جهت رفع چالش مذکور پیشنهاد شده است.Evolution of the Concept and Examples of Public Service Agents in Economic Crimes
The term "Public service officers" is mentioned in several examples of economic crimes in criminal laws, but its meaning and examples have been ambiguous due to the repeal of the law on the trial and punishment of public service officers. Although according to the unanimous decision number 798 of the General Board of the Supreme Court, the employees of private banks are examples of public service officers and the subject of the crime of Article 598 of the Penal Code, the said decision cannot explain the concept and examples of public service officers and its effects have added to the ambiguity of the issue. To respond to the evolution of the concept and examples of public service officers, this article along with the pathology of judgmental procedure, the transformation of the scope and examples of public service officers after the issuance of the unanimous decision, and finally the solution to the legal refinement of this ambiguity, through approval The new single article is proposed, to solve the mentioned challenge. Introduction The existence of ambiguity in the concept of "public service officers" and its examples is one of the most important judicial challenges in recent years, which is rooted in the disagreement of the courts regarding the inclusion of the title "public service officer" about the employees of private banks and compliance or the non-compliance of the criminal title of embezzlement with the crimes committed by employees of private banks is related. Over time, this disagreement has spread to other crimes related to public service officers, and the aforementioned challenge has increased with the repeal of the Law on the Trial and Punishment of Public Service Officers approved in 1315, which had determined its precedents. MethodologyIn this study, by adopting a critical approach and using library sources and descriptive-analytical methods, the results of the unanimous decision No. 798 in the judicial procedure have been analyzed. Results and DiscussionAccording to Article 3 of the Trial and Punishment of Public Service Officers Law, public service officers are people who work in charitable institutions that are under the patronage of the king of the era according to endowment or will, or in charitable institutions and general benefit institutions that are managed by the government or municipality or are managed under the supervision of the government, or in government for-profit institutions or other for-profit institutions managed by the government. In this law, the examples of public service officers have been specified, but Article 570 of the Criminal Procedure Law has been explicitly repealed. On the other hand, in criminal laws, in many cases of economic crimes, including illegal possession, embezzlement, bribery, and collusion in government transactions, etc., the character of the perpetrators has been relevant from the perspective of the legislature, and the phrase "public service officers" has been mentioned. However, the concept and examples of public service officers and the possibility of referring to the Law on the Trial and Punishment of Public Service Officers, to define and calculate it after its repeal, are in an aura of ambiguity, and it is not clear whether it can be referring to the outdated law solely to determine examples and definition of public service officers.The importance of identifying examples of public service officials is related to the difference in the guarantee of executions and the judicial system of crimes committed by public and private sector employees and the severity of punishment for crimes committed by public service officials, which in the case of committing economic crimes such as embezzlement, bribery, illegal seizure of public funds, etc., the relevant punishment is more severe. Regardless of the serious differences in determining the rules for recognizing the cases of public service officers and sometimes the extra-legal development and inclusion of this phrase even about some members of professional organizations such as lawyers, engineers, and members of the Association of Official Judicial Experts, finally, one of the cases of dispute in the judicial procedure regarding the cases of the perpetrators of the crime under Article 598 of the Penal Code, a unanimous decision was issued, and the General Board of the Supreme Court followed a disagreement between the 11th and 14th branches of the Court of Appeal of Yazd Province regarding one of the employees of private banks who committed the crime under Article 598 of the Islamic Penal Code. (Illegal seizure of public funds) entered into the issue and to compensate for part of the legal gap, he issued unanimous decision No. 798 dated 7/15/99. According to the aforementioned decision, the employees of private banks who provide extensive monetary and banking services to the people under the supervision of the Central Bank are examples of public service agents and are subject to the punishment stipulated in Article598 of the Penal Law, but this decision caused many other ambiguities and problems in the judgmental procedure, which are analyzed in this article. ConclusionsAlthough according to the unanimous decision, the employees of private banks are considered as examples of public service officers and their possession of property and funds is considered as an example of the crime of Article 598 of the Penal Code, the said decision is not able to understand the meaning and examples of public service officers, and even though before its issuance, the employees of private banks did not have the description and characteristics prescribed in Article 598 of the Penal Code, the said decision and its effects have added to the ambiguity of this issue.According to Article 36 of the Islamic Penal Code, Article 598 of the Islamic Penal Code, which is the subject of unanimous vote No. 798, is an example of economic crimes, and other crimes related to public service officials, such as embezzlement or bribery, are also included in the scope of economic crimes. Therefore, the achievement of the conceptual and exemplary development of public service officers and the inclusion of punishment in the economic crimes of private sector employees, according to the principle of legality of crimes and punishments, the law on improving the health of the administrative system and combating corruption, the civil service management law, the law of public accounts of the country, the law of the list of public non-governmental institutions and the unanimous vote number 798, is that in addition to the employees of ministries, institutions and state companies, the employees of trade unions and professional associations and the employees of non-governmental public institutions, bank employees private companies are also subject to the example of a public service official and the behavior of these people can be punished under the headings of articles 534, 580, 598, 603, 605, 606 of the Islamic Penal Code, articles 3 and 5 of the Law on intensify the Punishment for Bribery, Embezzlement and Fraud and other criminal provisions regarding government employees. Selection of ReferencesShams Nateri, Mohammad Ebrahim, Riazat, Zeynab, and others, (2019), Islamic Penal Code in the current legal system, fifth edition, Tehran: Mizan. [In Persian]Mohebi, Jalil and Riazat, Zeynab, (2016), Description of the Islamic Penal Code, first edition, Tehran: Mizan. [In Persian]Mansour Abadi, Abbas (2021), "The Concept and Examples of Public Service Officers" Criticism of Unanimity Resolution No. 798", Scientific Quarterly of Modern Researches in Administrative Law, 3rd year, 9th issue, pp. 88-64. [In Persian]Mohammadnejad, Haider (2015), "Public service theory and its governing principles in Iran's laws and judicial procedure", two quarterly administrative law journals, third year, number 10, pp. 104-128. [In Persian]Najarzadeh Hanjani, Majid (2021), "Analysis of public services from the perspective of human rights; The right to benefit from public services", Administrative Law Quarterly, Year 8, Number 27, pp. 215-234. [In Persian]Vaezi, Seyyed Mojtabi; Al-Barzi, Zahra (2016), "The place of the concept of public service in Iran's administrative law", two quarterly administrative law journals, fourth year, number 12, pp. 31-9. [In Persian]Zarei, Mohammad Hossein and Najarzadeh Hanjani, Majid (2016), "The concept of public services and its transformation in the light of the doctrine of public function", Public Law Research Quarterly, 19th year, number 56, pp. 32-9. [In Persian]
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