نوع مقاله : مقاله پژوهشی
1 استادیار دانشگاه رازی، کرمانشاه
2 کارشناس ارشد فقه و مبانی حقوق اسلامی دانشگاه رازی، کرمانشاه
عنوان مقاله [English]
Imami Jurists believe that father and paternal grandfather have been introduced as natural parents of minor, insane and lunatic (whose insanity and lunacy has been continuous to their minority period) but Sunny jurists have different opinions about Natural Guardianship; therefore, Maliki and Hanbali jurists have not applied and exercised the paternal grandfather as a guardianship in their schools. Iranian legislators have followed Imami jurists and the natural guardianship of the father and grandfather has been explicitly required in civil law. Islamic jurists and consequently Iranian legislators, in order to protect ward, have required vast powers for natural guardian; therefore, the father and paternal grandfather have full power to represent the ward’s property and the presumption is that the interest of the ward is observed; therefore, as long as the interest of the ward is observed the activities of the natural father or the parental grandfather are legally effective and enforceable, unless the contrary is established. However, sometimes the natural parent does not do his corresponding duties and misuses his power and applies his personal purposes and doesn’t observe the interests of the ward and causes loss to him or her. In the present study, an attempt has been made to deal with treachery and violation by natural guardian and explaining the samples of the violations of natural guardian. Also, in this study, the responsibility of natural parent about ward and also the viewpoints of Islamic jurists and Iranian legislators have been discussed. Deposing the natural guardian who has violated is the strategy and the executive guarantee that Imami jurists have predicted for the treachery and incompetency of natural guardian. Also, in some Sunny denominations, deposing the natural parent has been predicted. Pairing the trustee to natural parent was the strategy predicted by legislators for executive guarantee which was not effective. Finally, the law has been developed for adapting Imami view and fulfilling the requirements. For this purpose, deposing of natural parent has been predicated in article 1184 of civil law for protecting the ward and observing the interests of the ward.