نوع مقاله : مقاله پژوهشی
نویسندگان
1 استاد، گروه فقه و مبانی حقوق اسلامی، دانشکده الهیات، دانشگاه تهران، تهران: ایران.
2 دانشجوی دکتری، گروه فقه و مبانی حقوق اسلامی، دانشکده الهیات، دانشگاه تهران، تهران: ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Upon acceptance of a bankruptcy claim (iflᾱs), the bankrupt individual (muflis) becomes subject to financial and non-financial rights and obligations, some of which are restrictive while others are advantageous. Moreover, the interdiction (hajr) of the debtor minimizes the potential infringement of creditors' (ghurmᾱ') financial rights and provides an opportunity for partial repayment of their claims from the debtor's remaining assets. The jurisprudential and legal status of bankruptcy necessitates a thorough understanding of who can claim bankruptcy and under what conditions such claims are accepted. This research, conducted through a descriptive-analytical method based on library sources, aims to address the question of who is authorized to claim a debtor's bankruptcy and what are the effects of such a claim. According to the findings, Muslim jurists have proposed three possibilities for claiming bankruptcy: by creditors, the debtor, or the ruler (hᾱkim). Disregarding the Hanafi view on the non-interdiction of the bankrupt, the majority of jurists from other schools accept the preemptive action of creditors in claiming the debtor's bankruptcy, citing their rights, knowledge of the debtor's situation, and the interest in preserving existing assets. While Hanafi, Hanbali, and Maliki schools have not addressed the issue of bankruptcy claims by the debtor, Imᾱmī and Shafi'i jurists argue that the debtor can claim their own bankruptcy and consequent interdiction. This is because the debtor is most aware of their financial situation, and such a claim is considered a self-admission. Some narrations also suggest that creditors' demands are not a prerequisite for declaring bankruptcy. Jurisprudential sources ascribe two roles to the ruler: governance and guardianship (wilᾱyah). According to the prevalent opinion among Imᾱmī jurists, the ruler in the capacity of a judge cannot claim a debtor's bankruptcy as they do not possess rights in this position.
کلیدواژه‌ها [English]
)