نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The condition of non-commission of a crime by the principal production factors, as stipulated in Paragraph 8 of Article 41 of the Law on Supporting the Family through the Promotion of the Culture of Modesty and Hijab, is a mechanism designed to prevent cultural norm-breaking in the domain of audiovisual, media, and cyberspace works. This article aims to elucidate the jurisprudential and legal nature of this condition and analyze its enforcement guarantees by examining its criminal and civil dimensions. The research method is descriptive-analytical, utilizing library-based sources, and involves a review of legal texts, jurisprudential opinions, and legal practices in an effort to clarify the relationship of this condition with principles such as strict liability in criminal law and the theory of fault in civil liability. The findings indicate that the legislator's intent in this condition is a "condition of performance" (sharṭ al-fiʿl), which is valid in Islamic jurisprudence and law and carries an enforcement guarantee. Furthermore, the "appropriate guarantee" (taḍmīn-e munāsib) mentioned in the law refers to a guarantee with high efficacy, which must be obtained from the producer or director. In the criminal dimension, the legislator appears to have accepted the attachment of certain legal effects (such as the prohibition of broadcasting the work) without the need to prove mens rea (guilty intent), which can be considered an indication of an approach leaning toward strict liability—although this interpretation remains debatable in criminal law. This approach, if accepted, appears to be compatible with principles such as enjoining good and forbidding evil (amr bi al-maʿrūf wa nahy ʿan al-munkar) and the prohibition of assisting in sin (ḥurmat al-iʿānah ʿalā al-ithm), yet it requires more careful examination in balance with rules such as the principle of averting punishments (darʾ al-ḥudūd). In the civil dimension, the failure of the producer or director to obtain the guarantee, in the event of a crime, constitutes negligence (tafrīṭ) and gives rise to civil liability, which is also consistent with jurisprudential rules such as "causation" (tasbīb) and "failure to take precautions" (tark al-taḥaffuẓ).
کلیدواژهها English