نوع مقاله : مقاله پژوهشی
نویسنده
دانش آموخته سطح 4 و استاد سطوح عالی حوزه علمیه قم / دانشجوی دکتر فقه و مبانی حقوق اسلامی دانشگاه قم
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
According to Islamic jurisprudence and Iranian law, if at the time of inheritance distribution there exists an unborn child,a share is set aside for it until its being born alive is established.This segregated property may generate increments and benefits, and it may also be subject to loss or destruction.The central question,therefore, is to whom these increments belong and against whom any loss should be borne.Addressing this issue requires an analysis of the legal nature of the “segregation of property” and whether it constitutes a division of property or not.Using a descriptive–analytical method and drawing on jurisprudential sources of the Islamic schools of law as well as legal sources, this article examines the nature of ʿazl.Some Imāmī jurists and the majority of Shāfiʿī, Ḥanafī, Ḥanbalī, and Zaydī jurists, relying on arguments such as the implication of the rule of no harm, the absence of any impediment to the contingent ownership of the unborn child, and the implication of the nature of a subsequent condition, regard segregation as a form of division.They further argue that preventing future disputes and harm to other heirs requires removing the estate from common ownership from the outset.Article 878 of the Iranian Civil Code, though not explicit, likewise implies that segregation has the appearance of constituting a division.By contrast, arguments advanced to distinguish segregation from division,despite appearing more robust at the evidentiary level, lack practical effectiveness.Consequently, once the share of each heir is separated, the rules governing jointly owned property no longer apply:the increments and benefits accrue to each respective share, and any loss is borne by its owner.Given modern medical tools that allow determination of the fetus’s status at the time of death, there is little justification for delaying inheritance distribution.Accordingly, the estate should be divided without delay, while preserving the share of the fetus.
کلیدواژهها [English]
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