THE RESPONSIBILITY OF SABAB CAUSE AND ACCOMPLICE IN COMPENSATION

Transcription

1 Survey of Malaysian Law ISSN: Vol.14, Issue 1, 2017 Availed online on Article THE RESPONSIBILITY OF SABAB CAUSE AND ACCOMPLICE IN COMPENSATION Farve Adl 1, Gholamreza Arefian 2 Abstract:Sometimes two or more people are involved in the infliction of damage. There are differences in judicial procedures and law doctrine theories about how the division of responsibilities between them, that is generally assumed in three modes. Sometimes the harmful result is directly attributable to one or more factors and person or persons are accomplices in a crime, at other times the person or persons indirectly attribute in a crime without any complicity in a crime and the crime is pure causality. Finally, some are involved as accomplices directly and the others as causes, and the result incurred is of their collaboration. In these cases, the collaboration of cause and accomplice is discussed.the current paper assessed the three different modes and discourse using descriptive method based on library sources in qualitative analysis. Keywords: cause, accomplice, responsibility, jurists, lawyers. I.INTRODUCTION The development of wrongful act process is the responsibility that arises directly or indirectly. Many factors may be involved in emergence of such liability. This article provides a detailed explanation of the literal and technical meanings of responsibility, causes, and accomplice in addition to the views of jurists and lawyers in civil liability; then the cause and accomplice collaboration and the responsibility division among them including: accomplice more responsibility than that of cause, cause more responsibility than that of accomplice and equal responsibility of accomplice and cause with subdivisions and exceptions will be discussed. II.CONCEPT Literal meaning of Masoliyat : the term Masol in Arabic is the past participle of saala and yasalo meaning demanded. 3 Masoliyat is meant to be held accountable for the human and often defined as duty and what humans are responsible for. Masol person means the person who is responsible for their actions.the dictionary also defines Masol as responsible 4. Iranian Civil Code, in addition to the use of the term Masol and Masoliyat in most cases following the religious jurisprudence uses the 1 Department of Private Law, Kish Branch, Islamic Azad University, Kish, Iran 2 Corresponding Author, Assistant Professor, Department of Law, Kish Branch, Islamic Azad University, Kish, Iran 3 Mostafavi, Hassan, without date, Inspection of words of Quran al-karim, Beirut, Daralktb Allmiah, vol. 5, p Nikfarjam, Zohreh, Morteza Moqimi, 2014, civil liability and compensation for damage caused by traffic accidents, Traffic Management Studies Journal, Vol. 3, No. 11, p. 32.

2 224 RESPONSIBILITY OF SABAB terms zeman and zamen. Civil law in France, especially in the context of contracts uses the term garanti which is equivalent to zamen instead of Respasibil. In some cases Masoliyat is used as zemanat or punishment or liability 5. Accordingly, Masol and Masoliyat can be expresses as responsibility and accountability, as well. III.THE CONCEPT OF MASOLIYAT: Masoliyat legally means the individual s commitment to law enforcement sentence issued against him for their behavior. Masoliyat may arise as a result of voluntary or legally binding 6. Anyway, according to the definitions and meanings, Masoliyat can be seen as the personal commitment for a person, subject or a concept. Masoliyat in religious jurisprudence is examined in term of zeman. zeman in religious jurisprudence is used in both criminal and civil liability senses. This legal and religious jurisprudence title has several types in civil law such as coercive liability, the liability of the contract, the liability for losses and other. For instance, coercive liability is a liability not arising from the commitment of the parties against each other; but is a general duty and a legal obligation that people have not to inflict damages in each other. Where the two individuals have not contract and one intentionally or unintentionally harms the other, responsibility or liability is out of contract and is called coercive 7. IV.THE LITERAL MEANING OF (SABAB) CAUSE: Sabab is used in different meanings. Azhari in his book Althzib defines the words as the rope 8. Also, Raghib Isfahani more precisely said: Rope with which to climb a palm tree. 9 Others have provided meanings such as things, the causes, motives, and what brought about event or phenomenon. In Sufism sabab is means between the people and God that is called sabab al asbab 10. It should be noted that sabab is of presentations pillar and is two types: the light and the heavy 11. So, literally, sabab means anything that provides access to the goal 12. sabab first referred to a rope by which man gained access to water and because of the importance of water in human life, sabab the cause was also of particular importance. This caused any important tool in achieving any goal called sabab 13. The primary means used in are expected to be favorable. sabab is literally defined as continuity and cause but the search in the concept show that it is not used as the sole cause and it is a part of cause. Tabari writes: Asbab is the collective form of sabab, means by which the needs are met. 14 In cases where the effect and causality are negated it does not mean that the application in this case is incorrect and application is not only correct in cases of clear and unmistakable causality 15. So in general saba is what providing access to goal and 5 Karimi, Abass., 2013, compulsory liability, Tehran, publisher of Payam Noor, p Bariklu, Ali Reza, 2006, civil liability, Tehran, Mizan Pub, p Khoi Mousavi, Seyed Abul Qasem, 1975, Minhaj Note Foundations, translation: Alireza Saeed, Tehran, Korsandi Pub, p Al-Azhari, Muhammad, without date, Althzib Alloghah, Beirut, Dar al-ehya Altras Arabi, vol 12, p Ragheb Esfahani, Hossein. 1995, words of the Quran, Tehran, Mortazavi Pub, vol. 2, p Mirshekari, A., 2010, the concept and meaning of the condition and cause in the Civil Rights, Association Journal, No. 111, p Beheshtiyan, Mohsen, 1999, Association of causes in civil liability, Master's thesis, Tehran University, p Johari Ismail bin Hammad, without date, Alshah, Beirut, Darallm Lelmlaeen, vol. 1, p Amid Zanjani, A., 2003, Zeman reasons, introduction to civic responsibility and means and books on Islamic jurisprudence, Tehran, Mizan Pub, p Pirouzfar, S., 2012, revelation and its role in the interpretation of the Koran, Tehran, Astan Quds Razav,i Beh nashr, p Hadi, Bijan, 2011, legal study and legal causality, Master's thesis, Azad University Central Tehran Branch, p. 20.

3 SURVEY OF MALAYSIAN LAW 225 is with close similarities to the concept of cause and condition.the similarity to the extent that a detailed differentiation between the two concepts definitions is not possible in many. The concept of Sabab : scholars have provided various definitions of this term including: Sabab, what if it was not, loss was not sure but the cause of loss is deferent from sabab 16. So sabab is a factor, as the accomplice has no direct role in causing the accident but incident cannot be realized without. There is disagreement in jurisprudence and legal meaning of sabab between jurists and lawyers.some know sabab as the necessary causative subject. The writer of Jawaher says: causality is an act that loss occurs as a result, such as throwing slippery objects on the road that passers-by will fall and injured 17. Imam Khomeini said in the definition of sabab, any action that it provides the context for loss, so that if it had not been done, there would have not been any loss, such as digging wells and installing knife and putting the stone and obstructing public passage. 18 Therefore, sabab is the factor that's involved in harmful accidents and it is also a necessary condition, unless the importance of being involved in accidents is very strong to say, alone, regardless of other factors, has caused loss 19. In comparing the condition and sabab, it must be said; however, despite the similarity they are different. Their similarity is that both are not involved inherently and directly in the creation of loss, so as accomplice or reason contribute; but reason provides the grounds for loss and thus if both do not exist the loss will not occur, but the influence of sabab is stronger than that of condition and condition provides the grounds in such a way that in practice, crime and the liability cannot be attributed to it. Typically the realization of the crime and the liability of providing such a context are not expected contrary to these expectations due on it. 20 Therefore, sabab is a factor involved in the occurrence of liability and sometimes the dominance and impact on his compensation liability is accrued and at other times, as in the margin that compensation and liability which is on accomplice. The literal meaning Mobasher (accomplice): Mobasherat means self participation 21, attempting action, intercourse, monitor, business, broker, relaxation and action conducted without intermediaries. 22 Mobasher : the agent, monitoring as well as someone to collect royalties, performer, musician 23. Therefore, Mobasherat means an accomplice in action directly, without intermediaries.the concept of Mobasher : Mobasherat in religious jurisprudence terms is the direct cause of the loss. Jurists do not define Mobasher the same. Imam Khomeini says: the purpose of this is to act as a Mobasher without the use of instruments, such as strangulation by hand or shuffle by hand or foot, so that (animal) dies or is killed using a tool. 24 Iranian Civil Code mentioned criminal liability under both loss and causality, following the Shiite jurisprudence. Article 317 of the Islamic 16 Ameli, Muhammad bin Makki (first martyr), 1993, Rules and benefits in jurisprudence and assets, Qom, Nashreislamy Institute, First edition, p Aqa. Mahdavi, Asghae., Ehsan. Ahangari, 2015, comparative study of the similarities and differences of the two rules in respect of contributions on sin and causality, Islamic studies, jurisprudence and principles of the forty-seventh, consecutive No. 1, pp Mousavi Khomeini, Ruhollah, 1425, Tahrir, Qom, Islamic Publications, vol. 4, p Katoziyzn, Naser., 2008, out of the deal bindings, Tehran, Tehran University Press, 435 p. 20 Amid Zanjani, p Sahib Ibn Abbad, Ismail, without date, almohit fi Alloghah, Beirut, publishing universe of books, vol. 7, p Ibn Manzur, Muhammad Mukarram, 1997, Lisan al-arab, Beirut, Darsadr, vol. 1, p. 578;-and- Bostani, Fouad, 1996, Gematrical culture, Tehran, Islamic, p Amid Zanjani, p Naraqi, Ahmad bin Mohammad, 1981, revenues Ayam, Qom, Islamic Publications Bureau, Page 348.

4 226 RESPONSIBILITY OF SABAB Penal Code reads accomplice is that the crime is directly committed by the offender himself. It seems that the agent is considered accomplice when directly liable, however, according to the general expression of the desired interpretation of the interpretation of Imam Khomeini, i.e., where a tool or used in the destruction and damage by nature it is accomplice. But in the causality it must be acknowledged when the agent, is indirectly involved in causing the damage, the concept of causality is true. V.ACCOMPLICE AND CAUSE IN CIVIL LIABILIT: In religious jurisprudence sources, the main base in the collaboration of cause and accomplice is the responsibility of the accomplice. Accordingly, accomplice is responsible if someone dugs wells and throws other third party in. To justify the accomplice in charge said: It is therefore based on rational and textual documents and consensus the attribution goes for close reason (accomplice) and not far reason (cause). But the theory is criticized by jurists. Riyadh writer has said: If there would be no consensus on the issue we would saying both are responsible and the damaged can sue any of them for compensation, because logically after the appropriate liability was created for the cause it is due and this is the same thing referred to in no loss mentioned in the hadith. In other words, under the no loss rule, the liability is settled on cause although its involvement in damage is weaker than accomplice and accomplice strong contribution cannot free cause from responsibility. 25 this view is stronger when both cause and accomplice intend for loss. In response to this objection is also said that even in the supposition accomplice is responsible because the act is attributed to him, although his action is a means of loss 26. But a little reflection reveals the difference between the close means and the far means. VI.FORMS AND ACCOMPLICE AND CAUSE COLLABORATION AND HOW TO DIVIDE RESPONSIBILITY The harmful act is assumed in different forms: sometimes it is directly attributable to one or more agents, and they are accomplices of the damage; sometimes the other person or persons indirectly are causing crime, and then it is pure causality.finally, factors including causes and accomplices are involved in the crime and the crime is the outcome of their collaboration that the collaboration of cause and accomplice is the issue. In the definition of the latter is said: the collaboration of cause and accomplice is when two individuals inflict financial or life losses on the third, one as the cause and another accomplice. 27 Therefore, three modes are assumed: First: accomplice contributed more than that of cause, in this case the result is attributable to the accomplice, who are directly involved in the crime and accomplice carries all the pillar elements crime including material, moral and legal element. In fact accomplice is responsible, and the cause responsibility needs to be proved, as the causality between accomplice actions and incurred is stronger in common law. If accomplice attribution is stronger and he is responsible, if cause is intentional and learned, cause is called collaborator in crime such as one who gives his weapon to 25 Mohammadi, Abolhassan, 2008, Islamic criminal law, retribution translated the book from masalek Alafham, Mashhad, Mashhad University Press, p Sadeghi, Mohammad Hadi, 2004, specific criminal law, Tehran, Mizan Pub, vol. 1, p Shamloo Ahmadi, Mohammad Hossein, 2001, glossary and Criminal titles, Isfahan, Didar, p. 402.

5 SURVEY OF MALAYSIAN LAW 227 another to kill somebody. But, when the cause is unintentional and non-learned there will be no criminal title for him. 28 Most Jurists, in this case, find accomplice responsible, unless the cause contribution is stronger than that of the accomplice. 29 The basic principle in establishing causation is responsibility of accomplice; here it is inevitable to assume accomplice stronger. Second: cause contributed more than that of accomplice: the claim for compensation from the cause is possible when attribution is assumed stronger than accomplice 30. As a rule, it must be said accomplice responsibility analysis shows that he is the direct operating losses and everything went normal prior to his act. Thus, the accomplice is considered most effective as the final cause of the damage. On the other hand, the accomplice is one who has the wisdom and freedom and did so with the knowledge; so he will be responsible if he is more attributable than cause incases when emergency or duress is not the issue. Article 332 of the Civil Code also confirmed this view and considers accomplice responsible unless the causative agent for the loss is more attributable so that the loss in convention is documented to him 31. So in these cases, the outcome is attributable to the cause and it is an exception to the general principle of accomplice liability. More attributability of cause needs to be proven of the claimant. There is no dispute in the more attributability of cause in some cases and but there are differences in the examples, however, in the following cases cause is more attributable than accomplice. More attributable cause than accomplice cases: 1- Accomplice is animal or natural factors: In crimes, accomplice and cause both have to be humans; therefore, animal or object cannot be a crime accomplice, therefore, human reason is responsible not the accomplice that is an animal or an object Disturbance or disorder in the accomplice:in cases where the accomplice faces disorder or condition of spiritual degradation (wisdom, maturity, freedom of choice) criminal responsibility is not attributable to him, among them are the following examples: Accomplice ignorance: if the accomplice is ignorant of an issue he is considered responsible, and the cause is considered more attributable. An example is that someone digs a well in else's property without permission and cover it, and homeowners are unaware of the existence of well pushed someone well and he fell into a well and dies. In this example, the well digger is responsible and the homeowner is not responsible due to ignorance. Deceived accomplice: when the cause has deceived the accomplice and accomplice has committed a criminal act, the deceiver is responsible. Deceived and ignorant the ignorance is common in lack of knowledge, and they differ only on the origin of ignorance, the ignorant origin of ignorance is of his own but the deceived ignorance origin of ignorance is deception. Accomplice reluctance: reluctance legally means an act of intimidation from one to the other in order to realize the desired action by the reluctant. 33 Generally, reluctance is one of the reasons for criminal liability resolvers and the reluctant person has no 28 Aqaee Nia, Hussein, 2007, crimes against persons (crimes), Tehran, Mizan Pub, p Mousavi Khoi, p Katoziyan, p Zeraat, Abbas., 1999, the Islamic Penal Code: Diyat, Tehran, Phoenix, vol. 1, p Aqaee Nia, p Goldozian, I., 2008, the general criminal law, Tehran, Mizan Pub, p. 131.

6 228 RESPONSIBILITY OF SABAB responsibility, so if the cause forces reluctant accomplice to carry out a crime, the causal relationship shifts and cause is responsible, except for the reluctance to murder that is not justifiable in the criminal law and is not considered in this article. Accomplice distress: legally, the state of distress is where there is no threat but the circumstances to do an act is so that one commits a crime in dissatisfaction on 34. Distress unlike coercion does not distress the will of doer; on the other hand, unlike the reluctance is not a threat.distress is a justified cause of crime and the person in distress is not a criminal act and not even with civil liability in such circumstances, so the cause that has created a state of distress and forced accomplice is responsible. Minor and insane accomplice: generally minor and insane in all legal systems relatively absolved of liability. In Islamic law based on the hadith known as Rafe Qalam, minors 35 and the insane have no liability. 3- Accomplice legality of the action: Some lawyers absolve accomplice where the action is official duties, and know cause more attributable. An example is that one hostage is killed by police officers in the shooting, so hostage-taker is considered responsible. 36 In this case, the cause is more attributable than accomplice. It is worth noting, it seems that the criteria should be determined by reference to common law when the cause is more attributable. In the event that the accomplice action is completely uncommon (as a girl throw herself under the wheels of a car escaping from taunting of annoying person), cause cannot be considered more attributable than accomplice because this is not the norm. 37 Therefore, attribution is a conventional concept measured by common sense and wise reasons. Third: equal responsibility of accomplice and cause: in this case, accomplice and cause are equally involved in the criminal consequences of an action and the outcome is attributable to both, but which one is responsible? In the early Shi'a scholars, several causes involved in causing harm, the verdict is issued ion equal responsibility of all 38. Jawaher writer of contemporary jurists, too, has followed the same principle. The same theory has been accepted in Sunni jurisprudence and the decree issued in the equal responsibility. If the interference of several causes was established in assault and battery, but the type and amount imported by each is not clear, the sentence is to each pay the same share of blood money. 39 But the law has given precedence to accomplice to cause. Article 332 of the Civil Code, it is generally understood that in case of collaboration between accomplice and cause, the accomplice is more responsible because he is closer to the outcome. 40 In this regard, the Supreme Court precedent says: On the liability the responsibility is on the accomplice, and in the collaboration between accomplice and cause, the accomplice is responsible, unless the cause is more attributable, so even if both accomplice and cause are equally engaged in the crime, the accomplice is responsible for compensation. 41 It is also due to the rule of principle of liability of accomplice that this is dominant. 34 Aqaee Nia, p Ibn Abi Jomhor, Mohammad AH, Awali Allyaly Aziziya fi Alahadys Aldynyh, Qom, Sayed Shohada Pub, vol. 1, p Sadeghi, vol. 1, p Emami, Seyed Hassan, 2006, civil rights, Tehran, Islamiyah Press, vol. 1, p Trablosi, Abdul Aziz Ibn Barraj, (the judge), 1991, Almhzb, Qom, Islamic Publications Office, vol 24, p Hojati, Seyed Mehdi, 2005, the IPC in the current legal order, Tehran, Misaq-e Edalat, Katoziyan, p Verdict No. 1923, dated April 18, 1993, Branch 26 of the Supreme Court.

7 SURVEY OF MALAYSIAN LAW 229 CONCLUSION The results show that: 1- In the collaboration between cause and accomplice, the one whom the crime is attributable is responsible even if it is the cause (while in the past responsibility of cause was only in case of cause more responsibility than that of accomplice ) 2- In case of equal responsibility of accomplice and cause in the crime both equally are responsible for the compensation. 3- The court may study the impact each of accomplice and cause and treat each one responsible for the effect his behavior. 4- The responsibility of accomplice and cause to face loss or damage provide a rule that is accepted by both civil law and religious jurisdiction. This principle is the primary shows responsibility of accomplice for compensation. In fact, there are exceptions to the principle, but in case of approved the responsibility of cause, the eligibility of more contribution of cause than that of the accomplice is the custom.this theory known as the conventional attribution theory of loss. REFERENCES Al-Azhari, Muhammad, without date, Althzib Alloghah, Beirut, Dar al-ehya Altras Arabi Ameli, Muhammad bin Makki (first martyr), 1993, Rules and benefits in jurisprudence and assets, Qom Amid Zanjani, A., 2003, Zeman reasons, introduction to civic responsibility and means and books on Islamic jurisprudence, Tehran, Mizan Pub Aqaee Nia, Hussein, 2007, crimes against persons (crimes), Tehran, Mizan Pub Bariklu, Ali Reza, 2006, civil liability, Tehran, Mizan Pub Beheshtiyan, Mohsen, 1999, Collaboration of causes in civil liability, Master's thesis, Tehran University Bostani, Fouad, 1996, Gematrical culture, Tehran, Islamic, p Emami, Seyed Hassan, 2006, civil rights, Tehran, Islamiyah Press Goldozian, I., 2008, the general criminal law, Tehran, Mizan Pub Hadi, Bijan, 2011, legal study and legal causality, Master's thesis, Azad University Central Tehran Branch Hojati, Seyed Mehdi, 2005, the IPC in the current legal order, Tehran, Misaq-e Edalat Ibn Abi Jomhor, Mohammad., 1405 AH, Awali Allyaly Aziziya fi Alahadys Aldynyh, Qom, Sayed Shohada Pub Ibn Manzur, Muhammad Mukarram, 1997, Lisan al-arab, Beirut, Darsadr, vol. 1, p. 578 Johari Ismail bin Hammad, without date, Alshah, Beirut, Darallm Lelmlaeen Karimi, Abass., 2013, compulsory liability, Tehran, publisher of Payam Noor Katoziyzn, Naser., 2008, out of the deal bindings, Tehran, Tehran University Press Khoi Mousavi, Seyed Abul Qasem, 1975, Minhaj Note Foundations, translation: Alireza Saeed, Tehran, Korsandi Pub Mirshekari, A., 2010, the concept and meaning of the condition and cause in the Civil Rights, Collaboration Journal, No. 111 Mohammadi, Abolhassan, 2008, Islamic criminal law, retribution translated the book from masalek Alafham, Mashhad, Mashhad University Press Mostafavi, Hassan, without date, Inspection of words of Quran al-karim, Beirut, Daralktb Allmiah Mousavi Khomeini, Ruhollah, 1425, Tahrir, Qom, Islamic Publications

8 230 RESPONSIBILITY OF SABAB Najafi, Mohammad Hassan, 1404 AH, Jawher al-kalam fi Sahrayea Islam, Tehran, Islamic Publications Naraqi, Ahmad bin Mohammad, 1981, revenues Ayam, Qom, Islamic Publications Bureau Nikfarjam, Zohreh, Morteza Moqimi, 2014, civil liability and compensation for damage caused by traffic accidents, Traffic Management Studies Journal, Vol. 3, No. 11 Pirouzfar, S., 2012, revelation and its role in the interpretation of the Koran, Tehran, Astan Quds Razav,i Beh nashr Ragheb Esfahani, Hossein. 1995, words of the Quran, Tehran, Mortazavi Pub Sadeghi, Mohammad Hadi, 2004, specific criminal law, Tehran, Mizan Pub Sahib Ibn Abbad, Ismail, without date, almohit fi Alloghah, Beirut, publishing universe of books Shamloo Ahmadi, Mohammad Hossein, 2001, glossary and Criminal titles, Isfahan, Didar Trablosi, Abdul Aziz Ibn Barraj, (the judge), 1991, Almhzb, Qom, Islamic Publications Office Zeraat, Abbas., 1999, the Islamic Penal Code: Diyat, Tehran, Phoenix ARTICLES Aqa. Mahdavi, Asghae., Ehsan. Ahangari, 2015, comparative study of the similarities and differences of the two rules in respect of contributions on sin and causality, Islamic studies, jurisprudence and principles of the forty-seventh, consecutive No. 1, pp Mirshekari, A., 2010, the concept and meaning of the condition and cause in the Civil Rights, Kanoon Journal, No Nikfarjam, Zohreh, Morteza Moqimi, 2014, civil liability and compensation for damage caused by traffic accidents, Traffic management Studies Journal, Vol. 3, No. 11.