The legitimacy of the criminalization of the operation of production, distribution and publication of malware in the cyber space

Abstract

simply approving an act in the Guardian Council can guarantee its legitimacy and correspondency with Canon Law. since the natural responsibility of this entity is to accord Islamic Parliment's enactments with Canon Law ( religious law), besides unless legislature's enactments obtain its correspondency with the Canon Law, it can not be described as an act. The Guardian Council has enacted the computer's crime law, so it has legitimacy and for the punitive justice agents this amount of legitimacy is enough. But from the jurisprudence point of view it should be detailed more and the arguments and proofs upon which the legitimacy of this act stands be clarified. The subject of this article is to examine the Canon Law's catechism of producing, distributing and diffusing malwares in the cyber space that is the subject of clause 25 in the computer crimes law enacted under the influence of Budapest convention. There is no instance of this crime in the religious tradition and verses as it is a new crime. Therefore to prove its legitimacy we should refer to intellect and general juridicial( فقهی) rules, such as no harm rule, Tasbib rule(causation rule), Taslit rule, Al ta'azir be yadelhakem rule etc... .It is concluded that the mentioned crime not only doesn't conflict with the religious cases but also we can obtain many reasons for its legitimacy

Keywords

• juridical rules
• production
• distribution and publication malwares
• cyber space
• no harm
• tasbib