بررسی برخی از مصادیق تحصیل مال نا مشروع از دیدگاه فقه و حقوق کیفری

the present paper deals with criminal issues. for example, legal injunction on the necessity of returning a deposit has a legal nature and legal injunction on the punishment of those who breach the trust has a criminal nature. existing social issues are the basis of classification of some instances into the issue, some of which are based on variation and others on quality. therefore, the motivation behind the selection of this issue and conducting this research is that many new legal questions are raised following such illegal actions as transgressing others’ property, obtaining illegal property, embezzlement, defraud and breach of trust in developed societies and among governments and nations along with development in financial issues, new purchasing in financial transactions and relationships and man’s greed to gather money. the main questions are what the criterion is for distinguishing legal property from illegal property and legal purchasing from illegal purchasing? what is the legal criterion for embezzlement, defraud, bribery, breach of trust, alienation, robbery and trickery? what is the spiritual element (mens rea) of such instances and titles as defraud, breach of trust and obtaining illegal property? and finally, what are the profound similarities and differences between imamiyyah jurists’ verdicts about these instances and those of islamic legal code? therefore, the followings are among the findings of this paper. first, it reviews the constituent elements of misdemeanors of obtaining illegal property such as breach of trust, defraud, bribery, usury. these elements are legal element (actus reus) which constitutes the article one of aggravation of penalty act and spiritual element (mens rea) which includes general criminal intent, particular criminal intent and criminal act, that is, the act of criminal appears in a positive act form, which is deduced from the meaning of the phrase “resorting to fraudulency”. second, it shows that illegitimacy of obtaining illegal property and its penal effect are following quranic verses, according to principles proposed by imamiyyah jurists, especially sheikh ansari: “o you who believe! do not devour your property among yourselves falsely….” (4:29) and “and do not swallow up your property among yourselves by false means…” (2:188). regarding shi’a jurists’ verdict about such misdemeanors as alienation and trickery, the late fazil abi says that alienator’s hand should not be amputated; rather the property taken should be returned and alienator should be punished by whipping him seventy or eighty times in order that he would not repeat the criminal act. the late najmodin helli has the same view.