جستجوی مقالات مرتبط با کلیدواژه "نفی نسب" در نشریات گروه "فقه و حقوق"

In the Iranian and Afghan criminal law, Ghazf as one of the examples of the crime of slander, because of having a religious color, although they have similarities; but, the existence of some differences makes their comparison with each other interesting. These differences are evident not only in the constituent elements of Ghazf, but also in penalization. One of the most important of these differences is that Ghazf in Iranian law is the wrongful attribution of "adultery or buggery" to another, while, in Afghan law, what is attributed should be "adultery or negation of lineage". In Iranian law, not only Ghazf, but also Maghzoof are eligible for many conditions, such as being sane, mature, Muslim, and certain, but in Afghan law, the conditions related to the offender and the victim are few and insignificant. In terms of penalization, the differences are obvious; For example, in Iranian law, in addition to the main punishment, supplementary and consequential punishments can also be applied to the Ghazef, while in Afghan law, what is imposed on Ghazef is only the main punishment. For this reason, this article, relying on the descriptive-analytical method, has tried to analyze the position of the crime of Ghazf in the Iranian and Afghan criminal law and to address their similarities and differences from a comparative point of view.

Relative relationship may be denied for various reasons and motivations. The denier of relative relation claims that the relative relation that apparently exists is contrary to reality. In general, any person who benefits from the denial of lineage can file a lawsuit for denial of lineage. Therefore, the purpose of writing this article is to clearly state the approach of Iranian law towards the legal status of a child whose parentage has been denied. Since there may be a difference between the rights of a child whose parentage is denied and the rights of a child who does not have this feature, it is necessary to determine which of the financial and non-financial rights is different between the child whose parentage is denied and the child whose not. The result of this research is that those rights that such a child still enjoys are financial rights, alimony and non-financial rights, guardianship, custody, family name and birth certificate. Inheritance is also a right that is affected by denying lineage.

In Iranian civil law, as a result of Islamic jurisprudence, in order to determine the relationship between father and offspring, reliance upon the rule of marital paternity presumption is accepted. Based on this rule, a child who is born during marriage is considered the husband’s offspring, provided that no less than six months and no more than ten months have passed from the date of sexual intercourse to that of birth. If, despite the existence of the above conditions, a husband should claim that the child born to the couple does not belong to him, and in order to prove his claim, he relies upon a DNA test and the results of this test indicate that the child is not attributed to him, the situation of the born child is doubted in terms of attribution. In order to clarify the issue in question, the traditional theory considers rejection of the DNA test more compatible with the reasons for legislating the aforementioned rule and preservation of the foundations of the family. This is so while the need to pay attention to human knowledge which helps the judge discern the truth has made it advisable to pay attention to the results of these types of tests. In fact, the said rule is considered as a presumption due only to lack of knowledge, and therefore, it can hardly be maintained that if there is a scientific method through which the relationship between father and child can be determined with a high degree of certainty, one should still resort to a method that discerns the reality only through conjecture.

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Parentage is a biological and genetic topic to which much attention has been paid in jurisprudence and law due to its numerous legal effects. Advances in genetics and its relation to the field of law and the courts in the last three decades and the use of DNA and blood analysis, make the study of the jurisprudential and legal credibility of this problem necessary. The present article seeks to answer the question whether the jurisprudential and legal credibility of blood tests and genetic evidence is valid enough to resolve cases related to rejection of parentage. Some jurist believe that these types of tests are more valid than evidence of the marriage bed and proof of the contrary to evidence is possible via the above mentioned tests; however, the answer to the research question of this paper is that although there has been some success in the area of genetic testing in connection to the relation of parental relationship but; in cases where all the conditions of the marriage bed have been proved, these tests can not deal with this circumstantial evidence and proving the contrary of the circumstantial evidence of the marriage bed in this manner is not possible unless one of the conditions of the circumstantial evidence is missing. In that case, the use of the above mentioned test can be useful-as judicial evidence.

Undoubtedly, the Legislator has paid special attention toward protection of lineage of persons so as the weakest evidence like lottery may be used to establish a lineage under the Shiite Jurisprudence. Therefore, the value and credit of scientific evidence such as DNA test in proving lineage is very clearly acceptable. But the point worth considering here is evaluating whether such scientific evidence can negate the lineage, because the conservation of the family is greatly respected by the Sharia and restricted the ways a lineage may be negated. This research paper deals with this issue whether DNA test may be used for negating lineage by considering the fact that the ways of negating lineage is restricted by Sharia.