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

AbstractOne of the essential needs of every family is the presence of a child who warms the heart of the family. Despite this, some families are deprived of the blessing of having children, and on the other hand, there are children who have been left without a guardian due to natural and unnatural reasons. This is where adoption comes into play. In Iran's legal system, with the approval of the law on the protection of Unsupervised and poorly supervised children and adolescents In 2012, the institution of adoption underwent changes and the basis of adoption was placed in Iran's legal system. The purpose of this research is to investigate the approach of the Iranian legal system towards the institution of adoption and its effects and the way it is carried out. It has created support for orphaned children, but it has not been able to create the effects of a real child in relation to an adopted child.

The threefold verses of Sūrah ʾAl-Nisā provide a detailed legislative framework for the laws of inheritance. In understanding these verses, it is important to have an understanding of the history of inheritance as well. In the tradition of Arabs before the advancement of Islam, men who were blood relatives of the deceased directly or via other men, were considered his/her heirs. Closer relatives would deprive more distant ones of their inheritance rights. Inheritance verses were revealed in such a context, with the purpose of determining a share for those who were deprived of inheritance. Therefore, the Quran has not written the rules of inheritance in vacuum, but rather in accordance with the existing norms and as corrective measures. This cultural background reveals the reason why some relatives have specific shares of the inheritance while others do not have that. On the other hand, the allocation of certain shares from the inheritance to non-heir members in the pre-Islamic custom could lead to the deprivation of those without a share or the excess sum of shares beyond each other. It seems that in order to solve these challenges, one should use the proportion of the heir’s shares in comparison with each other instead of proportioning the shares of heirs to estate.

One of the most important financial rules is the inheritance of people from one another if the condition exists, which has always been prevalent across the nations and followers of holy religions. In this regard, Islamic Sharīʿa has provided precise legislations that determine the ranks and levels of heirs and their shares. According to most inheritance āyahs, all eligible individuals, regardless of their religious relations will inherit from one another. These general rules, supported unanimously by Farīqayn juriconsults are established with conclusive evidence; including reports indicating that non-believers will not inherit from Muslims. However, Islamic sects disagree whether Muslims inherit from non-believers or not. The majority of common juriconsults (Fuqahā-yi ʿĀmmih) believe that Muslims don’t inherit from non-believers. On the other hand, Imāmīya juriconsults and a few of the common juriconsults assert that Muslims do inherit from non-believers. The key point is that Imāmīya juriconsults unanimously believe that in case of the existences of a Muslim heir, the non-believing heir will be deprived of inheriting from a non-believer, even if the Muslim belongs to a more distant rank and the non-believer is closer in rank. The present research investigates the issue of the Muslim’s disinheritance from a non-believing heir, using the descriptive-analytical method and document analysis. Contrary to popular belief, the study concludes that arguments in favor of disinheritance are incomplete and the non-believing heir will inherit from the non-believer according to the general rules of inheritance.

artificial insemination has been among the challenging legal, medical and ethical issues in the contemporary period. Keeping in mind the opponents of this method of fertility, the supporters of this method from the point of view of jurisprudence and law also consider economic rights for children born from this method, which will be discussed in this research. 

The method of this article is analytical and descriptive and the research tool is library.

Ethical considerations:

 In writing this article, the ethical principles of referencing and quoting sources are of concern to the authors. 

The rights of children born from artificial insemination are reserved in jurisprudence and Islamic law for those who follow the scientific methods and the specificity of the guardian and the owner of the fetus or by respecting the rights of the owner of the womb in the matter of surrogate womb. The most important rights are benefiting from inheritance, meeting economic needs and equality with other citizens. 

Children born from artificial insemination will inherit from him if the owner of the sperm is known. However, if the sperm is from a stranger, the inheritance relationship and the provision of his economic needs are cut off from the owner of the sperm, and the child inherits from the mother, and the provision of his economic needs is the responsibility of the mother.

In the present century, due to the increasing technology and communication of more nations, intellectual property is very important and intellectual phenomena are considered not only as a knowledge, but also as capital. Therefore, considering their economic value and source of income, consequently, the transfer of these rights is also part of the legal issues. In the present study, while examining the legal and jurisprudential meaning of intellectual property rights and the nature and effects of these rights, the views and documents of Shiite and Sunni jurists as well as jurists have been expressed. One of the main examples of these transfers is the forced transfer of these rights, which occurs due to the death of the creator. But among the jurists, this issue has been addressed in the new issues and referendums; Examining the theories expressed, it can be seen that most jurists, both Shiites and Sunnis, have acknowledged the legitimacy of intellectual property rights and, based on the fact that these rights are among the financial rights and interests and are accepted by custom, it can be transferred to The heirs know.

The present study has addressed the issue of whether it is possible to develop the causes of inheritance due to the role of will in hereditary factors or not? The answer to this question is expressed by explaining the role of will in hereditary factors and examining the abolition of characteristics and texts that are in conflict with the development of hereditary factors, whose development has been proposed through two perspectives. The first view is obtained by the absolute view of voluntariness and the principle of voluntariness in actions in such a way that we can make the condition of inheritance in contracts that are the result of agreement of wills, and the second view introduces the Ḍimān Jarirah Guardianship as a contract of protection and responsibility and considers this guardianship as a cause of inheritance that has no characteristics, so its characteristic can be revoked. So, there are some cases that are examples of this guardianship, such as adoption and child contract derived from gamete donation. In all these cases, there is a kind of support and responsibility. Therefore, in the absence of kinship relationship, it will be possible to include the condition of inheritance in them.

The murder of the testator by the heir in testamentary disposition (testament for disposition of personal property), while challenging and lacking in research background, raises the question of whether such a murder can deprive the legatee of taking possession of the bequest (legacy). Three jurisprudential views based on the investigations can be considered in this regard that the murder of the testator by the legatee has no effect on taking position of the legatee according to the famous view and the legatee is still the owner of the bequest (legacy). However, two other views, in a little detail, are based on the fact that murdering a testator by the legatee as in the case of inheritance would prevent the legatee from the bequest (legacy). The present article considers the famous theory acceptable by using a descriptive-analytical method and using library resources, while critically analyzing and evaluating the jurisprudential fundamentals of the proposed views and also considers the prevention of the legatee from the bequest more acceptable by arguing that on the one hand, no evidence that stipulates the prevention of murdering from testamentary disposition (testament for disposition of personal property) and the absoluteness of verses, traditions and principle as the main reason for the famous point of view, each of them can be undermined in some ways and does not have the authority to prove the famous point of view.

Inheritance is sometimes by kinship and sometimes through relation by marriage (sabab). However, the Imamiyyah jurists believe that if a dead person has an heir who enjoys two reasons for inheritance, this person can take both of the shares, no matter whether these two or more reasons are relation by marriage or by kinship, or both or all the reasons are either kinship or marriage, provided that none of the reasons is preventing the other. Otherwise, the heir would only inherit based on the reason which prevents other possible reasons. In this paper, an analytical-descriptive method is used to prove that according to the existing evidence, inheritance of the heir for two reasons is specific to those cases in which one reason is relation by marriage and the other is by kinship. However, in cases where both reasons are by kinship, the heir would inherit both shares only in case the relations by kinship are considered as conventionally separate and distinctive.

The issue of grandchildren's inheritance in case of grandparent's death and the existence of the first heir is one of the cases that has been neglected by the legislator despite its high important especially in preventing family disputes and financial problem. Currently, based on the rule of closer relative, when a person dies earlier than her/his parents, her/his children will be deprived of their grandparents' inheritance if the grandparents have any other children which are alive at the time of their death. Although Imāmī jurisprudence accepts the inheritance of grandchildren as the successors of their parents or Qaem Maqam, In order to respond this question whether Qaem Maqam is being able to inherit in case of the existence of their aunts or uncles, this research has been done based on, hadiths and jurisprudential sources and indicated that none of the evidence cannot be in the contrary with the assumption of avoidance of grandchildren's inheritance along with the other heirs, in case of the death of one of their parents. Therefore, such inheritance could be considered for them.

Adoption is one of the most important issues that has received special attention in all legal systems. The purpose of this article is to examine the financial obligations of guardians towards the adopted child in the light of jurisprudence and Iranian law.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

The findings of the present study show that the approach of fiqh to the situation of the adopted child is a traditional approach and considering the principle of good faith, However, due to the changes that have taken place at the community level, the legislator has become more sensitive to the financial obligations of guardians. The main reason for this is the difference between the main basis of adoption in fiqh and Iranian legal system.

Ethical Considerations:

 In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

The main basis of adoption in the first place in fiqh, the principle of benevolence and the basis of its rules are mainly in the framework of worship; Whereas in Iranian law, due to the abuses that may be committed against the adopted child in practice, the main basis of adoption in the first place is the protection of the adopted child and the lack of attention to the principle of benevolence by the guardians.

In a taking possession will, heirs of testator are forbidden to possess property that is subject of a will. There is no distinction, based upon different foundations, among reasons for such prohibition and under different foundations like transferring, appearance, and no need for an acceptance, the result is forbidding heirs from possession of property. The reason for above point is that a testator has an especial right over one- third of his property, therefore, till the time of rejection or acceptance of the will his legal heirs are not permitted to use the testator’s property. For such a limitation, there is no difference either the testator die or his property transferred to his residuary. Under this foundation that after dying a person his legal heirs becomes owner of the testator’s property, so it is possible to accept such a result for them in the case under discussion, since there many examples that a testator unable to transfer his ownership upon his property to a third person residuary. In all those cases, like conditional sale contracts and mortgage, a common factor for forbidden a testator is an implying conditions to save property or destroying it by the owner; and a seller would be able to recover the same property or has a right to return it to him by a buyer as well as a mortgager would be able to recover his money by selling the mortgage. In all those cases mentioned in above, a person who is obliged to keep a property itself or has no right to possess it. Because, possession of a property is a matter that is inconsistent with the main purpose of doing legal activities namely a passion either in a form of transferring or destroying it, or condition for saving a property directly or by implication. Under the “Imamiyyah” Jurisprudence, it is admitted that until the time of rejection or acceptance of a will by a residuary, those who are testators of a will have not any right to possess the property of a dead person; of course, this is not a rule that easily to accept it since it is in contradiction to rules of ownership and right of rejection to accept a will. In this article, it is tried to support a reason (s) for a prohibition of possession of a testator’s property against those above rules.

For some criminal acts, the Holy Legislator (God as the law-giver) has mentioned some ancillary punishments in addition to the principal punishment. Murder is considered as an impediment to inheriting anything out of the estate of the murdered person if it is deliberate or out of their blood money(Diyah) if it is not deliberate, i.e. manslaughter. The idea that murder prevents a murderer, just like the case of inheriting, from being a beneficiary of the murdered person’s will is in need of jurisprudential and legal analysis. The issue lacks any explicit statement in our sources of Islamic narrations and legal articles, hence it was tried to find the taste of the legislator by examining similar subjects such as the murderer heir, the validity of the content of a will in case of suicide committed by the testator, or a liberated slave who is the murderer of his/her master and the spirit of the law was utilized for discovering the superior opinion in legal doctrine. Detailed examination based on the chronological order of making a will and the oppressive intentional deadly act, as well as detailed inspection based on the ability to modify the will after a deadly act, leads us to this conclusion that in case of any deadly act by the legatee after a will is made and also of the inability of the testator or his/her lack of opportunity to modify the content of the will after the deadly act, the legatee is sentenced to testamentary deprivation.

The religion of Islam, as the most perfect divine religion, always pays special attention to the status of man and the preservation of human dignity. In authentic Islamic and jurisprudential documents, according to the instructions made in the Holy Quran, human beings have material and spiritual rights from the time of sperm formation and coagulation as an adult, and a creature is considered to have the right to life and respect. The legislator in domestic law, following the religion of Islam by modeling valid Islamic documents, considers the fetus to have rights, and from the time of fertilization of the sperm by issuing the sanctity of abortion and issuing a performance guarantee for the perpetrators of this act, supports the life of the fetus and, after granting this right, considers him entitled to other rights such as the right to health and the right to money. However, in the Convention on the Rights of the Child, as a comprehensive document on the recognition of the rights of the child, without mentioning the fetus and the period of pregnancy, only in the first paragraph of Article 6 of this document, member states are required to recognize the inherent right of all children. Other international instruments, such as the Introduction to the Universal Declaration of the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, refer to the period of pregnancy and the fetus. However, there is no text to grant financial or material rights to the fetus or to recognize her/his right to life, and the authors of these documents have only supported the child to prevent her death and stillbirth.

The legal nature of the funds paid to the legal heirs of the deceased employee in accordance with the regulations, in terms of not considering them as part of the deceased's estate and consequently excluding the provisions related to inheritance or considering them as part of the deceased's estate and consequently following the inheritance rules and the effects on it are debatable in terms of the ability to seize against the debt of the deceased employee. In this article, the answer to the question of which of the funds paid to the survivors of the deceased employee is not inherently part of the estate and is excluded from the provisions related to inheritance and according to the rules, equally or as predicted belongs to the eligible survivors of the deceased and which of them is inherently part the deceased's estate and divided according to the rules of inheritance, is expressed. Research findings show that part of the payments to the survivors of the deceased employee, such as salary, end of service reward and life insurance, which is not part of the deceased employee's estate is excluded from the provisions related to inheritance and according to the relevant laws, equally belongs to the surviving eligible survivors. Part of the payments, like the funds related to the financial demands of the employee during his / her service and life, includes overtime, incentive funds, productivity rewards, mission fee and reserved leave of absence funds, is inherently estate and subject to special inheritance provisions. This issue is examined in the present article using library and documentary sources and by descriptive and analytical methods.

Jurisprudential analysis of the unpopular views of Sheikh Sadouq on inheritance Sheikh Sadouq is one of the fourth-century jurists in a period that is related to the absence of the Imam. Almost all jurisprudential fields have opinions contradictory to the famous Imamiyyah jurisprudence. The authors of this paper examined the legal jurisprudence of their subjects on inheritance and showed that Sadouq’s five cases of inheritances are: 1- Inheritance of not having child of child in the presence of a deceased parent. 2- Partnership between grandpa and grandchild in inheriting deceased property. 3- Inheriting the mother of a deceased woman by imagining one-sixth spouse as a share and the rest by return. 4- If the sole heir is his wife, the woman inherits a quarter of the property at the time of Imam's presence and, in absentia, will inherit all. 5- Inheritance freed from liberator. The result of this research is to show that the opinions of the not famous jurisprudents, including Sheikh Saduq, also have valid and reliable narrative support. Therefore, their views appear to be able to stand up to prominent promises and can be effective in Iranian law and may be a factor in changing the inheritance of civil law disputes, which have largely followed prominent pronouncements.

Islam and the law of many countries, including Iranian Civil Law, agree that the murderer is not entitled to the inheritance of the murdered heir. The scope of dispute is only about the limits of this deprivation and its extension or non-extension to the types of murder. But the issue of deprivation of the heir who was an accomplice in the murder, in the case of the silence of the law and many jurisprudential texts, is the place for stopping to give an opinion. In addition, it needs to be investigated whether the deputy in murder can receive a pension from the pension funds as the survivor of the victim or not. On the one hand, the exceptional character of the impediment to inheritance and the need not extend it to indefinite titles and on the other hand, the reasonableness of following the wisdom of the ruling on the deprivation of the killer and its extension has made it difficult to provide a conclusive opinion. However, there are reasons and documents in which we can state carefully that the issue of deprivation of inheritance and receiving a pension is also probable in this case, and the grounds for this conclusion are more solid. Thus, this paper aims to analyze the issue and provide a solution based on an analytical-critical approach.

Individuals can use legal provisions, which are the tools of public relations, to infringe on the rights of others. Divorce is one of these tools. If the couple suffers from a terminal illness, it is possible to divorce the wife with the intention of depriving her of her inheritance. The purpose of this study is to investigate this situation.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Findings show that in the field of Imami Fiqh and Iranian law, if a man suffers from a disease overlooking death, due to fear of abuse of the right, in case of divorce of the wife, despite the circumstances, the wife inherits from him.

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

Inheritance of the wife is not an exceptional situation in jurisprudential and legal terms in the case of the husband suffering from a disease leading to death; Rather, it should be considered as a general rule.

The property of the person goes to his heir after his death, but the financial rights of the deceased will also be inherited or not? To answer, the source of the financial rights must be determined, whether it is a contract between the parties, such as a right of pre-emption, or an Iqa' (Unilateral act), such as a right of Tahjir (Revival of property), or a law, such as a right of copyright. The criteria for distinguishing financial rights from non-financial rights are the tradability of these rights and the ability of converting them to money. Some rights, including pre-emption rights, options and copyright, are transferred to the heir unanimously, such as the deceased's property. However, for rights such as benefit and tolerance, there is disagreement between jurists and legal experts that whether they can be passed to the heir or not. The most important reason for inheriting these rights is the reason. This present study, which has been compiled with the aim of understanding the view of Imamiyah jurisprudence and Iranian law on inheritable financial rights, has been done in a descriptive-analytical method and data has been collected through a library filing method. Another issue is whether the transfer of some financial rights to the heirs is accepted, should all the heirs together exercise this right or can some of them exercise this right? Given the multiplicity of viewpoints, the financial right is apparently a single right and will be enforceable if all the heirs request it.

The use of new methods of pregnancy has created many issues in the field of both parties' rights that the study of its obligatory effects is one of them.   The purpose of this study is to understand the obligatory jurisprudential effects of embryo donation based on Shiite attitude and remove the ambiguity of Article 3 of " the Law on How to Donate Fetus to Infertile Couples". This study has been done by collecting library data and with descriptive-analytical method and also by relying on first class Shiite books searched the key words such as embryos, donation, custody and inheritance in them. Due to the attribution of the child to the owners of the sperm, obligatory rights such as custody, alimony and inheritance are established between the child and the owners of the sperm; However, in Article 3 of this law, the legislator has "considered the duties and responsibilities of the couple who received fetus donating and the child born are the parents in terms of maintenance, alimony and respect, such as the duties and responsibilities of the children and the parents." While the child is attributed to donors and does not mention an important issue such as inheritance. Therefore, the law should be change and explain how to assign duties to recipients of fetus.