پژوهشنامه حقوق تطبیقی (May 2021)
Penal transaction as an alternative mechanism to public prosecution (a comparative study of Iranian, Belgian and French legal system)
Abstract
Over the last three decades, various forms of negotiated-consensual criminal justice have been developed in common law and civil law. All of these consensual mechanisms simplify and speed up criminal proceedings in response to criminal act. The emergence of these mechanisms guarantees the rights of the parties to the criminal act and it leads to the contractualization of public prosecution. Execution of prosecution alternatives, first by eliminating the stage of discussion on proving guilt, allows it to be done with the least cost and speed of the stage of investigation, which subsequently reduces the overcrowding of judicial authorities and prison. Then, beyond a purely managerial logic, it guarantees the predictable outcome of the trial, which is the goal pursued by both the accused and the victim and the prosecutor. Eventually, a more acceptable response is achieved and a better procedure is implemented that will be of a nature that tends to prevent recidivism. Among these mechanisms are the institution of penal transaction in French and Belgian legal system and the alternative institution for pursuing public litigation in Iranian law. In this regard, the present study with a descriptive-analytical approach has examined the alternative position of public prosecution of penal transaction in the three legal systems of Iran, Belgium and France. In the end, it was concluded that the Iranian legislature would have more confidence in prosecutors in considering the principle of the necessity of prosecution, and that the prosecuting authority would have taken a more flexible approach to pursuing alternatives.
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