The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013
The legislator in Note 2 of Article 495 of the Islamic Penal Code, introduces the guardian of unconscious patient in order to consent to treatment or discharge (action regarding quittance) of certain damages as the father and the public guardian and authority (the Supreme Leader). This Note is deriv...
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Razavi University of Islamic Sciences
2024-05-01
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| Series: | آموزههای فقه مدني |
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| Online Access: | https://cjd.razavi.ac.ir/article_1730_efe56fa48bef0b8e7864f81fd666b1ee.pdf |
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| author | Hojjat Pooladin tarqi Seyyed Hasan Vahdati Shobairi Seyyed hamid Hosseini Hossein ebrahimzadeh |
| author_facet | Hojjat Pooladin tarqi Seyyed Hasan Vahdati Shobairi Seyyed hamid Hosseini Hossein ebrahimzadeh |
| author_sort | Hojjat Pooladin tarqi |
| collection | DOAJ |
| description | The legislator in Note 2 of Article 495 of the Islamic Penal Code, introduces the guardian of unconscious patient in order to consent to treatment or discharge (action regarding quittance) of certain damages as the father and the public guardian and authority (the Supreme Leader). This Note is derived from jurisprudential texts, and there is a question regarding the mentioned Note, who is meant by specific guardian? Do the patient’s relatives have the entitlement to sign the medical clearance? The present research which is written in an analytical-descriptive method, concludes by examining the cases cited in the jurisprudent’s theology that the verse “But those of [blood] relationship are more entitled [to inheritance]” (Arabic: وَأُولُو الْأَرْحَامِ بَعْضُهُمْ أَوْلَی بِبَعْضٍ, Transliteration: waoloo alarhami baAAduhum awla bibaAAdin) can be accepted as a general rule in response to the above question, and in the assumption of the anesthesia of the patient who has been removed from under the authority can also be referred to his relatives to obtain clearance. The legal and jurisprudential studies such as diligent search in cases of application and citation of the mentioned verse by the Jaʿfarī jurists by generalizing the verse or rectifying or isolating the effective cause as well as the rule of prohibition of detriment (Arabic: لا ضَرَرَ, principle of harm) and think carefully about the practice governing the medical condition of the country at the present time, reinforces the hypothesis that the meaning of the guardian in this note is not a natural guardian (compulsory guardian) but is the satisfaction of one of the patient’s first-degree relatives (customary guardian) which is jurisprudentially and legally is correct and will exempt the physician from liability. |
| format | Article |
| id | doaj-art-c4612ef954a645f89367a525ae1df08e |
| institution | Kabale University |
| issn | 2251-936X 2783-3690 |
| language | fas |
| publishDate | 2024-05-01 |
| publisher | Razavi University of Islamic Sciences |
| record_format | Article |
| series | آموزههای فقه مدني |
| spelling | doaj-art-c4612ef954a645f89367a525ae1df08e2025-08-20T03:56:17ZfasRazavi University of Islamic Sciencesآموزههای فقه مدني2251-936X2783-36902024-05-011629356010.30513/cjd.2022.4083.16821730The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013Hojjat Pooladin tarqi0Seyyed Hasan Vahdati Shobairi1Seyyed hamid Hosseini2Hossein ebrahimzadeh3PhD student in Private Law, Razavi Univ. of Islamic Sciences, Mashhad, IranAssociate professor, University of Qom, Qom, IranPhD student in Criminal Law & Criminology, Razavi University of Islamic Sciences, Mashhad, IranPhD student in Criminal Law & Criminology, Razavi University of Islamic Sciences, Mashhad, IranThe legislator in Note 2 of Article 495 of the Islamic Penal Code, introduces the guardian of unconscious patient in order to consent to treatment or discharge (action regarding quittance) of certain damages as the father and the public guardian and authority (the Supreme Leader). This Note is derived from jurisprudential texts, and there is a question regarding the mentioned Note, who is meant by specific guardian? Do the patient’s relatives have the entitlement to sign the medical clearance? The present research which is written in an analytical-descriptive method, concludes by examining the cases cited in the jurisprudent’s theology that the verse “But those of [blood] relationship are more entitled [to inheritance]” (Arabic: وَأُولُو الْأَرْحَامِ بَعْضُهُمْ أَوْلَی بِبَعْضٍ, Transliteration: waoloo alarhami baAAduhum awla bibaAAdin) can be accepted as a general rule in response to the above question, and in the assumption of the anesthesia of the patient who has been removed from under the authority can also be referred to his relatives to obtain clearance. The legal and jurisprudential studies such as diligent search in cases of application and citation of the mentioned verse by the Jaʿfarī jurists by generalizing the verse or rectifying or isolating the effective cause as well as the rule of prohibition of detriment (Arabic: لا ضَرَرَ, principle of harm) and think carefully about the practice governing the medical condition of the country at the present time, reinforces the hypothesis that the meaning of the guardian in this note is not a natural guardian (compulsory guardian) but is the satisfaction of one of the patient’s first-degree relatives (customary guardian) which is jurisprudentially and legally is correct and will exempt the physician from liability.https://cjd.razavi.ac.ir/article_1730_efe56fa48bef0b8e7864f81fd666b1ee.pdfguardian of patientreligious guardiancustomary guardiannatural guardian (compulsory guardian)those of [blood] relationship (arabic: أُولُو الأَرْحَامِtransliteration: oloo alarhami) |
| spellingShingle | Hojjat Pooladin tarqi Seyyed Hasan Vahdati Shobairi Seyyed hamid Hosseini Hossein ebrahimzadeh The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013 آموزههای فقه مدني guardian of patient religious guardian customary guardian natural guardian (compulsory guardian) those of [blood] relationship (arabic: أُولُو الأَرْحَامِ transliteration: oloo alarhami) |
| title | The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013 |
| title_full | The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013 |
| title_fullStr | The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013 |
| title_full_unstemmed | The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013 |
| title_short | The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013 |
| title_sort | conceptual scope of guardian of patient in note 2 of article 495 of the islamic penal code 2013 |
| topic | guardian of patient religious guardian customary guardian natural guardian (compulsory guardian) those of [blood] relationship (arabic: أُولُو الأَرْحَامِ transliteration: oloo alarhami) |
| url | https://cjd.razavi.ac.ir/article_1730_efe56fa48bef0b8e7864f81fd666b1ee.pdf |
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