نوع مقاله : مقاله پژوهشی
نویسندگان
1 عضو هیئت علمی دانشگاه قم و مدرس خارج فقه و اصول فقه حوزه علمیه
2 دانشگاه قم
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
In the existing regulations, the harim (privacy) has a special function. Concerning the subject of the privacy, there are different regulations which each of them has used the privacy in according with the nature of its subject. Since in the different laws, the legislator has not followed a similar procedure, the legal nature and foundation of the privacy has remained vague. In articles 137 and 138 of the civil code, based on the famous jurisprudents` approach, the extent of some harims has been emphasized, while in other regulations, the famous theory has sometimes been accepted and, in some cases, has not been followed by reason of the necessity. In addition, in Article 136, the basis of the privacy is completeness of profit, and article 139 is to prevent the loss which the logical aspect of the combination of these two mentioned articles has been doubted. Since in the case of ambiguity of the legal regulations, a judge is obliged to infer the judgment of the issue by reference of the valid jurisprudential sources, it can be said that according to jurisprudential principles and criteria, the basis of the benefit perfection is to consider possession of the owner`s privacy and without taking an account of the other estates, or owners and privacy; but the foundation of preventing the loss is raised in the event that there is another right which in the case of conflict between completeness of benefit and loss, the rule of la zarar (there shall be no loss and damage in Islam) is made a priority.
کلیدواژهها [English]
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