الخطأ في الجرائم غير العمدية

Abstract

Abstract 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.