جستجوی مقالات مرتبط با کلیدواژه « guardianship » در نشریات گروه « فقه و حقوق »

Although in most of the contemporary legal systems, there are extensive regulations on adoption and guardianship, but in some of them, there are no regulations, or they are very incomplete and do not meet the needs of today’s society. Among the topics that have received less attention are the provisions related to the end of the relationship of adoption and guardianship. Although inFrench countries, England and Iran, there are more or less different laws about this, but which of the laws is in line with protecting the best interests of the child and what are their shortcomings? It is a question that we seek to answer in this article. According to the authors, preserving the best interests of the child is the most important reason and basis for the legitimacy and rationality of ending the relationship of adoption and undesirable guardianship. Therefore, in summary, in all three countries, there is a possibility of canceling guardianship, but they differ in how and why. Now, while explaining how to end adoption and guardianship in each of the French legal systems; England and Iran, it finally becomes clear that in Iranian law, the legislator’s performance in relation to the reasons for which the court may issue a guardianship termination order is more comprehensive than the laws of England and France.

Islamic jurisprudence is not indifferent to children without guardians or bad parenting children (children without adequate parental care) and has placed their affairs as a collective duty (an act which is rested on Muslims till it is done by some of them alternatively) to the direct affinity of children, judge and Muslims, and has prevented the expansion of the rulings on the natural relationship between parents and adopted children, and its challenges have not been ineffective in the relevant laws in Islamic countries. It is important to notice what is the way out of this problem in Islamic jurisprudence? This article has been compiled using library studies and descriptive-analytical method and has studied this challenge while criticizing Iran’s statute laws by adhering to the jurisprudential Rule of Expediency and expressed the solutions. The findings of this article based on Quranic and narrative principles, conditional and limited adoption in Islamic jurisprudence using the element of expediency as the basis of Sharia rulings and the philosophy of the enactment of rules are in all decisions that his/her guardians, whether judge or godfather make and preserving the child’s true lineage, the necessity of alimony and custody in order to preserve his life and preserve the child’s financial rights (inheritance) and observe the religious blood relations within the prohibited degrees of marriage in the family are also emphasized and the decision is subject to the observance of expediency with the aim of the growth and excellence of bad parenting children in addition to children without guardians in many cases.

The book Tanbiyeh al-Uma, because it was written by one of the elders in the field of religious sciences in the constitutional era, and because of the approval and signature of the constitutional system in it, has always been the focus of some scholars. Mr. Dr. Firhi, following his political jurisprudence concern, has written a commentary on this book and has tried to make it in addition to the description of the book, also in a way to be a report of "Naini's political thought". But did he act correctly and logically in this explanation, or did he go wrong?In the preceding article, with a descriptive-analytical method and a careful look at Mirzai Naini's jurisprudential sources and the book Tanbiyyah al-Uma, it is found that he not only made a mistake in this report, but also that his description is affected by A "spiritual distortion" has also become in Naini's political thought. Spiritual distortion means that, without touching the words and words of the text, the intention of the author of the text is directed in a direction that is not his intention. Two major parts which are considered as pillars of Naini's political thought and the existence of distortion can be proved in them; It is "the theory of public jurists" and "organs of the kingdom of velayatiyah".In this article, the author, after proving the correctness of attributing the theory of public authority of the jurist to Mirza Naini, has resolved the challenge that caused Naini's thought to be spiritually distorted. And also, by explaining the conceptual elements of the provincial monarchy in its divine origin, it becomes clear that, in the book Astana of Modernity, Naini's thought was not established in its homeland and was directed to another direction, which was alien to the author's intention of punishing the nation.

The presence and interaction of jurists with the sultans of their time has led to the emergence of a new reading called the legitimacy of the monarchy, which means the legitimacy of the king's rule by some contemporary writers. Examining the evidence shows that the traditions of praising and obeying the sultans have a weak document and a taqiyyah direction of issuance and have a meaning other than the legitimacy of the monarchy. Just as predestination, reducing the authority of the jurist in limited matters and social necessity does not imply the legitimacy of the royal monarchy, no evidence was found for this issue either. Allameh Majlisi, Mirzai Qomi, Seyyed Kashfi, Sheikh Fazlullah Nouri and Haeri Yazdi emphasized on the authority of the jurist, taking into account the necessities of the context and the time, they dealt with the actions of the authority as much as possible, and they based their interaction with the kings on the basis of expediency in commanding good and forbidding. Just as this theory does not have internal coherence in Islam, it is not compatible with Islamic political principles and foundations.The claim of consensus on the validity of the jurisprudence throughout the history of Shia jurisprudence shows the invalidity of legitimate monarchy, while the contradiction of political principles in Shia jurisprudence has prevented this formalization, the pillars of legitimate monarchy and internal ambiguities and inconsistencies. An important part of the interaction of jurists with the rulers of the time, if not out of necessity and piety, is based on the expediency of enjoining good and forbidding evil and has nothing to do with the officialization of the royal institution. .

In the current age, family research is doubly necessary in the civilization confrontation and secular civilization, and the formulation of legal, jurisprudential and educational theories in this field, especially regarding the role and duties of the mother, is emphasized in a methodical manner by relying on the Islamic and jurisprudential tradition. There are long-term discussions about the mother in Islamic jurisprudence, and the issue of guardianship and the circle of influence and control of the mother in the affairs of the child is one of the most important. In the popular view, the mother's guardianship over the child is limited. The present article tries to reread the territory of mother's guardian's ship (independent and non-independent) in Islamic jurisprudence and examine it based on deductive (Ijtehadi) method. After the investigations, it was concluded that the independent guardianship of the mother is a sign of compliance with the proofs of custody as well as a sign of the commitment of educational applications. Also, the mother as one of the 'Adul al Mo'minin (followers of the believers) has independent guardianship and can have non-independent guardianship (Mazoon) only through guardianship. Also, it was concluded that the territory of the mother's guardianship is dependent on the reason that proved it and it will be decisive in the assumption of confluence with the father's guardianship, and various assumptions of the confluence of the mother's guardianship with the father's guardianship were examined

One of the most significant and important vulnerable people in society are homeless and abused women. Inadequate economic situation, social and cultural problems, psychological problems, poverty, etc., these women always threaten them in their daily lives; Examining the situation of this group is the most important issue facing societies. In fact, all countries have tried in some way to support orphaned and abused children and women, but there is a difference in how to pay attention to this group and the model of supporting them. Unaccompanied women, as part of society, also have the right to a quality life for other people with social security, so support for them needs to be widely studied academically; In this article, the concept of guardianship and guardianship is examined in general and the three countries of Iran, Sweden and Denmark, representing the developed countries of the Scandinavian countries, are compared in a common subject to discover their commonalities and differences so that New solutions were found to improve the situation of these women. Therefore, the duty to support this group of women is the responsibility of any system of government. This category also has a religious basis in the system of the Islamic Republic of Iran and is considered one of the great goals and policies of the system. In the constitution of Iran and its macro-policies, the enjoyment of social security is considered a basic and necessary matter and various plans have been made. One of the goals of social security is to meet the needs of low-income and vulnerable people in society, The abuser and the selfcaregiver are among the neediest sections of society and are subject to a lot of material and spiritual damage. It will be very effective in improving the situation of these women in the Islamic society.

Custody of the child by the mother is one of the important issues that has been discussed in jurisprudence and law. In this article, an attempt has been made to examine the challenges facing child custody by the mother and, if possible, to provide solutions to address these challenges. The research method of this article is descriptive-analytical and the library method has been used. Maternal custody faces two important challenges; Lack of guardianship of the mother over the child and revocation of the mother's custody in case of remarriage. Prohibition of maternal guardianship over the child is absolutely unacceptable because the mother is more compassionate and kind in protecting the child and her property, while in today's society and also due to the ability of women in managing family affairs and outside the family, maternal guardianship over the child, accepted. In the case of remarriage, such a condition can not be imposed on the mother alone, while for men there is no such restriction and the mother can be prevented from remarrying by creating fear in her. From the jurisprudential point of view, the ruling of compulsory guardianship is not one of the rules of worship but one of the rules of reason. On the one hand, with the shrinking of the family in the present age, and on the other hand, the rising level of education and social presence of women, forgery of forced guardianship for mothers and the possibility of remarriage of women is the most important way to solve the existing challenges.

This research seeks to determine the limits of the guardianship of God, the Prophet and the Imams, and this discussion is important because of the limits of the guardianship of the Vali Faghih. Because the guardianship of the Jurist is due to the guardianship of the Imam, the Prophet and the Almighty God, and since the guardianship of the mujtahid and the jurist cannot be more than the guardianship of God, the Prophet and the Imam, then its limits must be determined.

This research has been carried out in a library using descriptive-analytical research methods. Ethical Considerations:

 related to writing texts and referring to sources was observed.

The intellect dictates that man should obey someone who has come from God, and the reason for this, in addition to the intellect and the numerous verses of the Qur'an, is that they are benevolent guides. The boundaries of the province are also in all personal and social issues as well as expediency.

The Prophet and the Imams have guardianship by the permission of God and the guardianship of the Prophet and the Imams is inferior to the divine guardianship.

The role of the family in guardianship and protection of children is undeniable، Sometimes the foundation of the family weakens for some reason and its structure collapses and causes the family to lose its efficiency. In this situation, the guardianship of children is one of the most important issues. The guardian is sometimes denied from her or his guardianship right. Diseases and illness are one of the most important things that affect on guardianship of children. The most of Islamic jurists believe that chronic and incurable diseases don't cause the loss of guardianship of children if the guardian would be able to do his or her duties through a deputy. In general, it can be said that if the guardian's Infectious disease cause to damage the child's physical health, his or her guardianship right will be revoked. But the principle of his or her guardianship will be survived if the guardian can prevent the spread of the disease to the child and to carry out matters related to child's maintenance and training through the supervisor.

The small community of family, like a large community, needs a wise and capable manager who can lead this community well and in the case of issues, it is the refusal of speech and so on, particularly females should accept this management. This article aims to examine the nature of couples’ incompetence that in a library method and by examining verses 34 and 128 of Surah Al-Nesa and studying the references, it has been concluded that God preserves solutions for the family protection to solve the issue in the same family environment and thereby maintain family respect.

One of the most frequent institutions that is considered in various jurisprudential subjects is the institution of "Wilayat (guardianship) ". Among the examples of guardianship, "customary guardianship" has been less discussed and studied, and in addition to the need to explain the nature, it is necessary to examine the arguments for the legitimacy of its guardianship. Accordingly, the major question of the study is "What are the principles of legitimacy of customary guardian?". The research hypothesis is that blood relatives (other than father and paternal grandfather) are the customary guardians and narrative and rational arguments can be used for the legitimacy of their guardianship. The method of this study is descriptive-analytical and the religious arguments are analyzed in it. The finding of the current study suggests that by analyzing and scrutinizing the primary and secondary arguments of the guardian, the customary guardian can be accepted as a constrained guardian. Accepting the legitimacy of guardianship of a customary guardian will have many effects on individual and social life. In addition, it can reduce some of the responsibilities of the government and the judiciary system, and manage affairs more easily and by the people themselves.

One of the indisputable and important rules of jurisprudence is the rule of Domination. According to this rule, man has dominion over his property and, consequently, the right to possess. The issue that has been raised in this regard and has caused controversy among jurists as well as jurists is the possibility of recognizing the human right to the body based on the rule of Domination. The specific question in this regard is whether the human right to one's body can be justified on the basis of the rule of Domination or whether another approach should be sought? The results of the analysis of this issue in the present paper are that the inference of kingship over the organs of the body, by analogy with the priority of human kingship over rubbing, does not seem correct because our kingship over property is not absolute so that we can By analogy of priority, let us conclude that we have dominion over the organs of the body. Also, the delegation of human affairs to him can not be considered as a reason for man's dominion over his body parts, because the delegation of human affairs to him is only in matters not related to body (blood) and includes political and social issues. It does not enter into the circle of sensitive issues in which the Shari'a procedure is based on excessive precaution. On the contrary, reliance on the rule and theory of guardianship seems to be a better explanation of the human right to his body.

One of the issues raised by constitutional jurists, and scientific circles is the question of the generality and jurisdiction? of the constitutional legislator, so that some people, relying on certain principles, believe in the limitation of the functions duties and jurisdiction of the cases considered by law; therefore, they reject the idea of generality of guardianship, where as some others believe in the generality of guardianship and inclination of the institution of the supreme leader to solve the problems and further the interests of society. This study evaluates the arguments of both parties by checking the fiqh-legal issue and expounds the held view. The hypothesis is that the constitution legislator holds that the plan and approval of the generality of guardianship are based on its ancient fiqh origin and, has acted with caution and intelligence and given special attention to national sovereignty in this respect.

1989 Convention on the Rights of the Child emphasizes that the states shall act in accordance with the high interests of children. According to this Convention each child has special constitutional rights including right to life, right to name and identity, right to family relationships and the right to communicate with parents, even if separated from them. Today, despite the membership of most of the states in the Convention on the Rights of the Child, there are many similarities and differences between countries as regards the nature of international adoption, the high interests of the child and the competence of the adoptive. In the present research, through using a descriptive-analytic method, by a brief overview on the international adoption in laws of the Islamic Republic of Iran, France and Germany we come to this conclusion that despite the differences as to simple and incomplete adoption, influenced by international rules, these countries to a large extent have enacted similar rules especially in simple adoption. However, with regard to international adoption, despite the prediction of certain rules in French and German law, in Iran's law this institution is faced with the silence of the legislature. It seems that we can admit this institution in accordance with Islamic standards with solution for accepting an adoptive qualified Muslim parent for orphaned Muslim children and an adoptive parent for the orphaned children of the People of the Book in the framework of existing regulations and best interests of the child.

The Rule of “Alwilāyatol Khāsah Aqwā minanwilāyatol ‘Āmah” is among the jurisprudential rules based on which some Sunni scholars have cited in secondary jurisprudential rules. By virtue of this rule, there is a relationship between the guardian and what is under his guardianship that enjoys such solidarity and dominance that in spite of his presence there would be no right of interference and oc- cupation for the general guardian in the realm of special guardian’s guardianship. In the present study, first, the hadiths cited by Sunni jurists have been analyzed and examined as evidence of this rule, then other arguments have been expressed as customary confirmations and some have been criticized. Likewise, this paper has stated and proved the rule of “Al-aqrabo Yamnaol Ab’ad”, a rule which is
stated by Imamiyah jurists on the heritage issue and no one has criticized this rule. Finally, the narrations of “Lahmeh” and “Assoltan walion man lā waliya lah” and the rule of “Al-aqrabo Yamnaol Ab’ad” have been the approved reasons for proving this rule.

Regarding using new instruments and contrivances for protecting the deserted or ill- parented children, English legal system is considered as one of the advanced and old-line ones in the European Union. Through the present research, we see that fostering process in English legal system is a two -stage one. The first stage is limited and temporary separation of the child from the birth parents and biological family; and, the second stage is issuing the (final) fostering order. Because of existing different variables including social sensitivities, psychology, etc., the English legislator has determined just general rules and principles. On the other hand, through judicial process, English courts have taken the responsibility of codifying certain detailed regulations. On the same direction, by considering the principle of child welfare preference to other issues, English courts developed the certain invincible (final) order which faced with criticism due to some reasons .

Medical fertilization are artificial reproduction techniques, that have been welcomed in recent years by countless couples. In a variety of medical fertilization methods, there is possibility of misrepresentation that occurrence and has many challenges. Some of these, occur in non-fiscal effects such as origin, guardianship and custody. The necessity to attention to these, the lack of a clear legal solution and the silence of the legislator, the new crises will encroach on these methods, and instead of solving the problem of infertility of young couples, will create more serious problems. We conclude that the child's origin arisingfrom deception doesnot destroy and the blood relationship continues to exist ; however, some specialists consider as illegitimate origin. guardianship will return to the ownerof the sperm in the eventof fraud from a heterogeneous fertilization by donors and homogeneous there is no effect on the guardianship. In the eventof deception by donors and the dismissal of the child by receiver, custody is the responsibility of the donors. If the medical team or health center is committed, the child custody costs can be claimed from the deceiver . In Britain, misrepresentation in medical fertilization also has different effects. There is no jurisprudential guardianship in this country. Also, custody will ultimately be assumed by other support institutions if the donors and receiver donot accept custody. in this respect support of the child is wellreceived. origin also has lost its true meaning in this country, because the legal approach is towards the contractual nature of this concept.

Since the Almighty God mentions the dominance of Men over Women in the Holy Quran ( Nisa’, 34) the concept of “domination” has been on the focus of many commentators and interpreters. From the perspective of the family, the very initial institution in human life, the issue of Men’s domination would be well considered within the context of family. The present study, having a Shiite jurisprudence perspective, seeks to find a reasonable explanation to this. The concept of domination can well be explained based on "Human Interests" in Shiite ideology. According to this ideology there is compatibility between Men’s domination and Human Fitrah (essence), by and large, family consolidation and maintenance. The issue of Gender differences, consequently, should be considered upon the explanation of one’s right and duty.

In most of the juridical debates, the guardianship of the father in the marriage of anadolescent’s virgin maid has been considered necessary without any distinctionbetween temporary marriage and permanent marriage. Examinig the relatedtraditions that are the main causes of differences in ju rists’ views, however, revealsthat the domain of guardianship is more limited in temporary marriage thanpermanent marriage. The traditions can be classified into five group and they allshow that when a maid is capable of managing her affairs independently, she isindependent in getting marriage, whether temporary or permanent. But if she is notable to, and is under the control of his father (Bayn ul Abavayn) and defloration isgoing to be done in marriage, the permission of the father is necessary; he shouldconsider the interests of the maid. Yet when penetration is not going to happen inmarriage, the guardian permaiion is not necessary and the virgin maid can marry onher own choice.