نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار دانشگاه تهران
2 دانشجوی دکتری فقه و مبانی حقوق اسلامی دانشگاه تهران
3 دانشجوی دکتری فقه و مبانی حقوق اسلامی دانشگاه فردوسی مشهد
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
One of the less known principles which has been less approached in spite of its use in jurisprudence, law and principles of jurisprudence is the jurisprudential principle "Al-Saghet La Ya'ud" (what is extinguished shall not return). The interpretations of this principle and its uses in Imamiyyah and Sunni jurisprudence texts suggest some sort of discursiveness, which necessitates the investigation into this context more than ever, because this principle can take on special uses in jurisprudence and legal issues and contribute a lot to the solution of emerging and new problems. The present research was based on a descriptive-analytical method and the use of library resources according to four connotations put forward by jurists in relation to the rule " Al-Saghet La Ya'ud": 1- non-returning of the kind of the extinguished object, 2- non-returning of the extinguished object and person, 3- non-returning of the extinguished object or person at the time of being extinguished, 4- non-returning of the extinguished rights, of which the reasons of proving or disproving as well as the exclusions came under discussion. Similarly, regarding the principle “Zaval Al-mane” (impediment removal) and Al-Saghet (the extinguished), some discussions have come up as to the idea that impediment removal can be in force where the requirements of a judgment are available. Therefore, impeding causes can't be effective and the judgment can be enforced only after the removal of the impediment. Thus, the principle "the extinguished" is enforceable where the requisition of a judgment is obliterated, which means the distinguished judgment can by no means return due to the lack of requirements. As far as the choice of the impediment and the extinguished rule is concerned, the impediment more often prevails, because the origin of the uncertainty is indeed the doubt over the idea if the impediment only impedes the effect of the requirement, or it repudiates the requirements and prevents the restoration of it unless if some new causes arise. The former is certain but the latter is skeptical, and the principle implies the lack of the latter case.
کلیدواژهها [English]
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