journal of kerbala university

The reason for criminal responsibility either revenge, where the goal is punishment or the goal is to achieve social justice, for the sake of stability in society. This will ensure people will be in good behavior. The organized society will have the presence of rules and regulations in forced, whether the source of these provisions and rules of "Shari'aa" or man-made. The goal of these laws aim to distinguish the statement of rights and duties between forbidden acts and permissible acts, according to certain conditions and in accordance with human nature and the circumstances that surround it.
Although criminal responsibility has been establishment an adult offender still bears his mental faculties and freedom of choice with his behavior as necessary which connects him to the criminal fact in order to check criminal responsibility. if this psychological connects is absent, this is no longer criminal responsibility. Its presence is linked to his presence and levels belonging to grades. This psychological connection is expressed in Islamic jurisprudence as disobedience, meaning violation of what was ordered by the "Shari'aa" (1). Some of the scholars of the positive law express it as sin, and some of them expressed it as unrighteousness (2). according to the reported Iraqi legislator from the definition of intent in Article 33 of the Iraqi Penal Code, which states that ((criminal intent is directing the perpetrator to commit the component of act of the crime aiming to result in a crime that took place or any other criminal result)) Thus, this text states to establish criminal intent on the basis of two components which are, knowledge and commitment. Knowing the elements of the crime and the will which is


destined to achieve these elements. And these elements are determined by the legal form of the crime, as stipulated by the law (3). However, these elements are represented by material aspect of the crime, followed by all the circumstances in which change the description of the crime because it is one of the components of the elements which establish the material aspect
So we can say, if no knowledge was found about the elements of the located criminal as a result of mistake or ignorance, the criminal intent respectively will be void, which will be considered as a judgment error in crimes, consequently the perpetrator will be punished on these basis (4). Thus, the mistake will be negated by the criminal intent. The "Sharia" equated mistake with error as stated in Quran ((ربنا لا تؤاخذنا إن نسينا أو أخطأنا)) (5). And the question
that arises here, is it a failure of criminal intent because of this mistake that affects the existence of criminal responsibility or it is negation? This research will be divided into three sections: the definition of penal responsibility, being the first section. The second section relates to the mistake of the penal responsibility. The last one discusses the non-effecting mistake of the penal responsibility.