كلية القانون - دكتوراه
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Item النظرية العامة للاعزار المعفية في القانون الجنائي(جامعة النيلين, 1986) عماد فتحي محمد السباعيItem أثر العلم في تكوين القصد الجنائي(جامعة النيلين, 1989) إبراهيم عيد نايلItem الاشتراك الجنائي(alneelain, 2008) ركان سعود قفطان العدوانAbstract Criminal complicity is considered one of the most important topics in the Sudanese penal code and the Jordanian penal code. This is because of the high accuracy of its definition. This concept allows us to identify the perpetrator of the crime and the accomplices whether it was done through agreement or without an agreement, and how the crime was committed in the case of the presence of criminal agreement or without it. Thus there is some difficulty in identifying the criminal liability of each accomplices .As known, crime in general is committed in an individual way, whereas in the case of criminal complicity it is done by a group of people which makes complicity stronger and more resolute. These crimes can be more violent because the criminals back and cover each other. The cause of choosing this topic in this study is because it is very important from practical and theoretical field in our societies and to shed some li ght on the kinds of criminal complicity, its definition, its aspects and its retribution. This study presents a comparative study between the Sudanese and Jordanian penal codes, about criminal complicity, its general definiti on which means that a number of individuals participate in committin g a crime with a criminal intent and a criminal purpose. Crime in general has a detrimental effect on the societies and the individuals bes ides, thc perpetrators participation in a crime can promote more crilJ. '~s through facilitating the crime and helping the perpctrator .thus no cri minal liability occurs against someone unless they committed a c:ime and participated in its execution . This study is divided into five chapters: Chapter one: discusses the definition of the crimi nal(penal ) complicity, its elements, and its basics principles according to th e Sudanese and Jordanian laws. Chapter two: discusses the Cllrrent legislation theories about criminal(penal) complicity according to the Sudanese and Jordanian laws chapter three: discusses kinds of criminal (penal)compli city for the perpetrator and the accomplice according to the Sudanese and the Jordanian laws. This chapter also di scllsses the order to commit a crime and the duress to commit a crime. Chapter four: includes special aspects of criminal(penal) complicity between the Sudanese and Jordanian laws. These aspects are: Criminal complicity to execute a criminal agreement or without a criminal agreement . The order to commit a crime, the duress to commit a crime . criminal agreement, instigation, and aid. Chapter five: presents special aspects of criminal(penal) complicity in the Jordanian law which have no equivalent in the Sudanese penal code expect in certain cases. The study results showed that: The topics of the multiplicity of perpetrators and accomplices of the crime are called either criminal contribution or criminal participation. The Sudanese law uses the tenn penal participation whereas the Jordanian law uses the tenn (criminal participation). They are two expressions of the same tenn. * Although there IS a difference in the tenns of the criminal penal Participation between the Sudanese and Jordanian laws, we find the practical principles are almost the same. ecuted in a planned * Complicity to commit a CrIme tlu·ough organized way and criminal agreement is considcred one of the usually more dangerous than other most dangerous crimes according to the Sudanese Jurispmdence which included it in articles (2 1 - 26). All countries should address complicity crime in their penal codes because complicity crunes are conunitted ti1fough premeditated agreement and plamung between two or more people. So it is excrimes. * there is a division of tile kinds of criminal penal participation between the Sudanese and Jordanian laws. The Sudanese penal code quotes six kinds of criminal participation: complicity as an execution to a criminal agreement ,complicity without a criminal agreement, the order to commit a crime ,the duress to commit a crime, criminal agTeement, instigation, and aid. Whereas tile Jordanian law quotes complicity in the penal code wlder chapter (liability). it classifies the accomplices into four kinds .they are : the perpetrators who include the accomplices ,the intelveners, the instigators, and tile people who hid tile perpetrators. * Instigations as an aspect of criminalClicity accordi ng 0 the Sudanese penal code is based on the creation of theme of the crime in an individual then supporting it to become a determination to commit a cnme. This support includes temptation, agreement or conspiracy and help. According to tile Jordanian law, the investigator is a person who encourages, or attempts to make someone else commit a crime through giving tl1em money or gift, or influencing them - through threat or tricks or mauls of power .in other words the Jordanian law put certain methods and ways to specify the insti gation crime. * the study offered these recommendations: - The study recommended that the Sudanese law identify methods and ways of instigation, so as the Judge abide by the law texts. *The Sudanese and Jordanian laws are recommended to introduce clarifying examples that better clarify kinds of criminal complicity. * The Sudanese and Jordanian laws should alleviate minor complicity crimes retributions and to limit them in the strictest manner so as not to be used as a context to violate public rights and freedoms of the accomplices who played minor roles in the crime and with good intent. * The study reconunended that the Sudanese and Jordanian laws alleviate minor complicity crimes retributions for individuals who played minor roles in the crime and with good intent.Item علاقة السببية في القانون الجنائي : دراسة مقارنة(جامعة النيلين, 2005) محمد احمد اونورAbstract The main Issues which Study discusse the rule of causation in Criminology science. That impetration and explain that rules which depend onl] [1 i] in order to understand and analysis the crime that applied under many-crimes law in the rest of the all world. The discussion of the causation in this study covering five chapters as well as below 1) The first chapter contains tow sides. The first side gives a general introduction of crime and causation and impact Beside this show the tools that must be followed in discuss and analysis. The second side gives conceptualization of crime definition types. Fields spaces 2) The second chapter express and it relationship threw crime law and other laws. These connecting with the main theories that under applied among world .In general prospective with some cases to show main effect that aflected by the causation and it relationship understanding and analysis of crime causes. 3) The third chapter discusses the causation in criminal iaw give some cases that sentenced by the judgment among some countries. in order to understand the deveioping of causation through and it importance for analysis of reasons that makes action have had a resuit . By other side show that die causation must take place hum many experiences happened and that which continuously advanced. Many studies and researches has heing deveioping main side of sentenced punishment . 4) The Fourth chapter Gives especial cases in Sudan criminai law and causation relationship with some cases impetration the side of causation that avaiiable in criminai law recording to the basic of - law and how it work. 5) Thelast chapter Concentrating Causation di iscussion through doctors responsibilities -in Sudanese Criminal law with applied cases finisher by conclusion and recommendations.Item الخطأ في الجرائم غير العمدية(alneelain, 2007) وائل جميل بن طريفAbstract In this thesis I studied the general theory of error in accidental crimes. I tried to apply the contrastive approach on my research so as to be able to explain this theory in the simplest way to uncover the ambiguity. Also I followed the analytical approach to deduce the result that can be achieved from this work. This research a first chapter with an introduction that tackled the history of the error theory. This includes the historical development of error since the early laws up till now. I discovered that this theory of error was in existence as early as the pharaoh's law as well as Hamorabi law. It was also dealt with in the Greek era and was handed down to the Roman law. We noticed that the Islamic Sharia dealt with the error theory (4- 92). The Islamic, Scholars explained this theory in detail. In this chapter I tackled the history of error theory in Sudanese and Jordanian law. I concluded that this theory was dealt with as early as the establishment of the state. However, this theory falls short of complying with the recent increasing number of accidental crimes. This is attitude towards considering the error the most important element in the crime instead of the result which was previously considered as such. I concluded this chapter with dealing with the legal texts pertaining to error. My work concentrates on high lighting the texts that tackle the error in the Sudanese and Jordanian law jurisdiction. n the second chapter I studied three topics. This first topic tackles the nature of the error in accidental crimes. I concluded that two elements are necessary for the existence of error: 1. The negligence of cautiousness and alertness imposed by law on people behaviour. This has been dealt with under the following headings; a- the legal nature of the cautiousness and alertness duty. b- The conditions of the negligence of cautiousness and alertness. c- The sources of the cautiousness and alertness duty. 2. There should be a psychological relation between the criminal and the crime punished. This relationship takes two aspects:- a. The non-expectancy of criminal result. b. The expectancy of the criminal result. I tackled in the thread topic about the figures of error as it is mentioned in the Jordanian penal system. Material 64, it says if the error is committed by harmful or carelessness or the lack of cautiousness. In the thread chapter I tackled about the legal nature of the error ill accidental crimes. This chapter contains three topics. In the first topic I tackled the relationship between the error and science through: a- The nature of science its importance for error. b- The events that should be known or we should have the ability to know. c- The effect of ignorance or mistake on error. d- The knowledge oflaw in the error theory. I concluded that the doer should know for sure the material circumstances demanded by the law for accidental crimes is not necessary for the error to happen. But it can be available if the charged was ably and as his duty was to know the events. I also concluded that the mistake in events does not negate the existence of error so long as the criminal was able to avoid if he were cautious and alert, with relation to the role of the knowledge of law in the error theory I made it clear that Fight is divided into two approaches. The first approach doesn't stipulate the knowledge of the illegality for the error to exist. This is because the knowledge of the illegality of the action is not a condition for the availability of the moral aspect of the crime. This mistake of the illegibility doesn't negate the error. The second approach, however, stipulates the capability of knowledge on the part of the charged of the illegality of the action. Therefore it the doesn't know that his action contradicts the punishment law he won't be considered as erroneous. In the second chapter I talked about the relation between the error and the will. The following points were discussed: a- The nature of the want. b- The relation between the want and the objective, the incentive the aim and the error. c- The legal importance of the incentive and the goal. d- The want and the erroneous behaviour. e- The want and the criminal result. I concluded that both the knowledge and the want have their role in the form of the crime whether it is intentional or accidental. However, this role is less in the accidental crimes than it is the intentional ones. It is less clear in the error than in the intention. In the third chapter I tackled the fight conflict on the nature of the error and the basis of criminal responsibility caused by error. I presented the main theories that tried to solve this conflict they are: 1. The theory which explains the error as a defect in the want. 2. The theory that explains the error as a neglect of knowledge. 3. The theory that explains the error as dangerous behaviour. I gave preference to the first theory as I believe that it can form a basis for punishment for all accidental crimes where the want of the doer is directed towards a specific deed. In the forth section I dealt with the types of errors in accidental crimes and some applications of the court on it. This section is divided into two parts. In the first one I discussed the types of error material error and art error, simple errors and serious ones civil errors and serious one civil errors and criminal errors. I concluded that their divisions have no basis some reasons. The law texts are general. They don't differentiate between simple error and serious ones or between material and art ones. As for the criminal error and the civil one, I concluded to what the Jordanian court of appeal said there us no contradiction between issuing a degree of rewarding irresponsibility and another of civil compensation. The second part, however, dealt with the law applications on some error types in accidental crimes. I discussed the following: 1. Medical error. 2. Construction and destruction actions. 3. car accidents. In the fifth chapter I dealt with the criteria of error in accidental crimes and its slope. I divided this chapter into two parts. In the first part I discussed the criteria of error in accidental crimes. There is disagreement in the fight regarding specifYing the criteria that can specify the ability of the charged to expect the criminal result of his action. Three theories dealt with this conflict: 1. The Personal theory. 2. The objective theory. 3. The mixed up theory. I gave the mixed up theory more prominence because: 1. It agreed with the justice principles. It takes into consideration the' external circumstance and the personality. 2. It complies with the interest of the society. In the second part I dealt with the scope of the crime. a- The place of error in the general theory of the crime. b- The difference between the error and the criminal intention. The difference between the error and the possible intention. c- The differentiation between the error and the sudden accident and the domineering force. I concluded that the domineering force leads to the destruction of the materialistic aspect of the crime. The sudden accident, however, leads to the refusal of the moral aspect. The safe, criteria to differentiate between the error and the possible intention is represented by acceptance of the criminal result intention.Item الشرعية الاجرائية في القانون اليمني(alneelain, 1999) مطهر عبدالله محمد الشميريItem السياسة العقابية في التشريعين السوداني واليمني(alneelain, 2007) محمد عبدالله عبدالعزيزABSTRACT The research is dealing with the study of policies for both legislators, the Yemeni· and the Sudanese through comparison, analysis, and evaluation of the general trend of both regarding the infliction of punishment in terms of suitability and legality away from the mode of system and the descriptive handling of statutoI)' laws observed or adhered to by several legal sectors which restrict themslves merely on clarification of statutoI)' laws. Beside s the search for the legistIatoe's adminstration irrespective of its sutability and legality or the humanitarian extent. Hence the one who handled this research must follow the proper legitimate concept of punishment or penalty based on the following criteria. 1. Based on the general penal trend in Islamic sharia and Bearing in mind the Islamic statutory laws related to penalty. and penal testimony beside. other related statutory laws in constant relation for completion of its entire parts to form its origins as the base for the branches. ii. The fundamental dependency on the punitive aim which is requested by the penalty, considering the penalty in sharia is for realizing certain aims and destinations, and at the end all lead to combating the crime. iii. To follow the manner being followed at the era of the orthodox caliphs and their honourable companions and to ignore the statements made by the experts in (fiqh) in the Islamic sharia beacause these statements express their understanding or comprehension for sharia, but not the sharia itself THIS RESEARCH CONTAINS FOR CHAPTERS:- Chaprer one: Tackled the crimnal punishment considering it as social excretion and social mecessity that must be taken as exceptional but expressing the needs of the society besides it handled ideative bases and the reality of ciiminal punishment. But the Islamic. Sharia evaluate this on the bases of free will hence it set goals and destination for the punishment. The most important oned are:- The general deterrence, special deterrence, realization of justice, corrections of the offender and as a consequence these punishments resulted in that, they have no religIous impact or impression contraty to what is claimed by some of the experts (fuqaha) in Islamic sharia. Also it tackled the most important qualities and charactaristics of the criminal punishment (principle of legality )and this includes lack of legality for infliction of punishment unless it is already among the current statutory laws. Chapter two: Handled the concept of punishments such as (hudud)cutting edge (qisas) reprisal,(taazir) censure and judgements related to these punishments and cases of waiving by full pardon and prescription. This shows that each punishment is chatacterized by particular judgements. The most important is the (hudud)cutting edge punishment which aims at realizing justice of deterrence or both. At the same time these punishments have one thing in common which is the destination for realizing the aims of the punishment. These several punishments can be taken as a base whenever justice is desired but not in the case of deterrence. In addition to that these punishments can be waived by full pardon or by expiration of the stipulated period. Chapter three:- Tackled th~ policy of both legistlators, the yemeni and the Sudanese from the point of abstention (withholding) or lightening the punishment . It appears that both depended on lack of two elements: the awareness and the free will and their decrease as a criterion for abstention (withholding) the punishment or lessening it. Both legistlators made some cases where punishment is waived because of responsibility and these cases are:- 1. Young person, madness, sleeping, fainting, compulsion and nesessity. ii. Murder is one of the cases where by punishment is lightened in the sudanese legislation if it happened as a result of unsound of mind; nervous, disturbance or psychological diseases, strong provocation, compulsion, necessity ,sudden fight. But in case of yemeni legislation, the punishment is lessened regarding the case of incest , if it happened because of strong provocation as a result of surprise from the wife or the daughter being caught practicing adultry. Chapter four: Is handling the punishments which both legislatorS, the yemeni and the sudanese agreed upon and these are the physical punishments. The most important one is the capital punshment by (hudud) cutting edge, strokes with a whip· . This indicates that Islamic sharia had really managed to keep the punishment of capital punishment at minimun, if it is proven beyond doubt and being decided as capital punishment as (qisas) reprisal or (hudud) cutting edge, according to the Holy Quran and also in case of armed roberry . Besides both legislators differ in two capital punishments by stoning in case of adultry and the crime of apostasy (Riddah)from Islam but in case of mutiny against the government, it has been proven to be political crime and deserves no criminal punishment and its judgements are related to the nation's right or the society in facing and combating those who wage war against the govemment (mutiny) which can be done parallel to the time the crime is happening and not after it in accordance with the constitutional law in the sphere of the state or the international law in the arabic or Islamic sphere. Also the punishment of cutting edge (hudud) had been decided just for the sake of (qisas) reprisal with the aim of realizing justice. But in case of armed robbery and capital theft (hudud) cutting edge is implemented due to the bad need of deterrence. On the other hand the punishments of strokes with whip had been decided and allocated for three crimes only and these are:- adultry, libel(false accusation of unchastity) and aicohlic drinks. Otherwise any issue that exceeds the Islamic legislation in any way is considered as mere means and can be valuated by looking into the efficacy and suitability according to the place and the time. Also this research tackled the punishment that affect liberty which is the imprisonment with its substitutes such as waiving capital punishment (death penalty),lack of pronouncing the punishment and the punishment of obligatory work ( obligation to do) . Add to it the setting up of the security measures for adult, young person and those suffering from unsound of mind and psychological diseases. The research ended by handling the most important financial punishments such as ( diya) blood money and fines also in terms of money. Summary The research contained a number of results and important recommendations.Item دور الادعاء العام في الدعوى الجنائية على ضوء نظام الاجراءات السعودي(alneelain, 2006) عبدالرحمن احمد الافنديItem الجريمة المنظمة عبر الوطنية وفق لتفاقة الامم المتحده لمكافحة الجريمة عبر الوطنية للعام 2000(2009) وسيم محمد صالح مهدىItem مدى سلطة القاضي في تسبيب الحكم الجنائي(2007) حسين يوسف العلي الرحامنهالمستخلص باللغة العربية: تهدف هذه الدراسة إلى دراسة مدى سلطة القاضي في تسبيب الحكم الجنائي وأثر مخالفته، لأنه من أبرز الموضوعات وأخطرها على الاطلاق في مجال قانون الاجراءات الجنائية، ويعتبر من أهم الضمانات، التي تمخضت عنها الأنظمة القانونية الحديثة، لأنه أداة اقناع ووسيلة للاطمئنان التي يسلم بها القاضي من مظنة التحكم والاستبداد. ويهدف أيضاً إلى دراسة السلطة التقديرية للقاضي في تسبيب الحكم الجنائي حسب اطمئنانه، فلا يتقيد بأدلة معينة في الإثبات إلا إذا قيده القانون، والهدف من ذلك هو الوصول إلى الحقيقة، من خلال التزامه ببيان الأسباب الكافية والسائغة التي بررت صدور حكمه في الواقع والقانون. وسارت هذه الدراسة وفق للمنهج الواقعي التحليلي في جانبه الفقهي وقضائه، وما استقر عليها القضاء من أحكام، وما استند إليه المشرع في السودان والأردن من خلال قانون الاجراءات الجنائية في السودان وقانون أصول المحاكمات الجزائية الأردني محللاً ومسترشداً بالسوابق القضائية في البلدين، بهدف الوصول إلى معيار محدد ينبغي أن يكون عليه إصدار الحكم، متسماً بالعمومية والشمول، متبعاً في ذلك، ما يلجأ إليه القضاء من وسائل فنية وقانونية وقضائية واجتماعية متخصصة معبرة عن شكل العلاقة ومحتواها بين القاضي والمتهم على وجه الخصوص. ينقسم هذا البحث إلى فصل تمهيدي وثلاثة فصول. وللوصول إلى الهدف المنشود من هذا البحث، استعرض الباحث بادئ الأمر في الفصل التمهيدي للمفهوم القانوني لتسبيب الحكم الجنائي، وأهميته، وأنواعه، وتطوره التاريخي، ودوره التطويري. والفصل الأول درس مدى سلطة القاضي في التسبيب في مجال أدلة الثبوت، والحالات التي تثور أمامه من خلال تطبيق القانون وتحقيق العدالة. والفصل الثاني عبر عن الاتجاه الذي يسير عليه قانون الاجراءات الجنائية في السودان، وقانون أصول المحاكمات الجزائية في الأردن، ونطاق تطبيق الحكم الجنائي في درجات التقاضي. جاء الفصل الثالث والأخير، بوضع الضوابط والأسس والحدود التي ينبغي على القاضي الجنائي أن لا يخرج عنها عند تسبيب حكمه، حتى لا يؤدي إلى القصور في التسبيب الذي يعرض الحكم للبطلان والإلغاء عند مخالفته لقواعد التسبيب. وذكر الباحث في الخاتمة مجموعة النتائج والتوصيات من أهمها : 1- تعديل نص المادة 167 من قانون الاجراءات الجنائية في السودان لسنة 1991م والإشارة لتسبيب الأحكام صراحة في عجزها. 2- الأخذ بنظام تخصص القاضي الجنائي في الدرجات العليا يعد ضمانة هامة من ضمانات تسبيب الحكم الجنائي، لأن القاضي الجنائي المتخصص يكون أقدر من غيره على أداء هذه المهمة. 3- يجب النص صراحة على بطلان الأحكام التي تصدر من دون أسباب، أو تكون أسبابها غير كافية. تخصيص موضوع تسبيب الحكم الجنائي في مساق مستقل ويدرس في كلية القانون بالجامعات، بحيث يجمع مابين فهم القانون والمنطق على حد سواء، ليتمكن الطالب من الإلمام بالجانب النظري والعملي. المستخلص باللغة الانجليزية: This study aimed to study the extent of the judges’ authority to cause criminal sentence and the impact contrary. It was the most important topic and most serious ever in the area of the criminal procedure code. It was important guarantees resulted in the modern legal systems because it is considered as a tool and means of persuasion to make sure that the characterized judge in the control and disposition area. The study also aimed at the discretion of the judge to cause criminal sentence by his certainty, he adheres to certain evidence in the record of evidence only if the law and aim is to find out the truth of his statement during the rational authority , which justified the wisdom according to the law. In this study, the researcher followed a realistic and analytical approach in taking the justification government code of doctrine and jurisprudence, and abides by the provisions of the judiciary and what mechanism made by legislator in Sudan and Jordan through the criminal procedure law in Sudan and assets trials law in Jordan. The researcher also was guided by the previous judiciaries in Sudan and judicial judgments in Jordan in order to reach a limited criteria and he should issue a public and inclusive judegment following the judiciary procedures such as technical, legal, judicial and social letters specialized and expressed about its kind and content between the judge and the accused particularly. This research was divided into preface and three chapters. In order to achieve this goal, the preface chapter dealt with the judicial concept of the justification governance code, its importance, kinds , historical development and role development. The first chapter dealt with the authority of the judge in the justification of evidence texts and exhibited cases presented before him through the law development and justice achievement. The second chapter also dealt with the criminal procedures law in Sudan and assets trials in Jordan. Third chapter exhibited the control and bases punishment immunity that the judge should not go beyond it during the justification of the judgment and leads to the justification shortage which exposed the judgement to be cancelled and spoils the rules of justification. The researcher mentioned the following findings and recommendations: Amending the texts 167 of the article of the criminal procedure law in Sudan of the year 1991 by referring to disability of the judgments justification frankly. Introducing the located judge of the criminal because it is an important of guarantees causing criminal sentence and the criminal specialist is better than others in this task. Investigating the location issue a defaults judgement in course independent and taught in the law colleges at universities so that brings together law and logic alike the students familiarity aspect theoretical and practical.