نوع مقاله : مقاله پژوهشی
نویسنده
موسسه عالی فقه و علوم اسلامی، قم، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The relationship between the paternal grandfather’s and father’s guardianship over a child is one of the major issues in the field of guardianship over minors and is also highly relevant in practice. Each year, a considerable number of judicial cases concern this issue. Although the basic establishment of guardianship for the paternal grandfather and father over a minor is regarded as an established principle, less research has been conducted on certain aspects of the matter. One such case arises when both the paternal grandfather and the father exercise their respective guardianship over some or all of the minor’s property, resulting in conflicting dispositions such that both cannot be legally effective. From the perspective of Islamic jurisprudence, although the ruling concerning a conflict between the acts of guardianship exercised by the paternal grandfather and father over a minor is more clearly established in matters of marriage, it is less clear with regard to the minor’s property. Where the exercise of guardianship by either the paternal grandfather or the father precedes the other chronologically, giving precedence to the earlier disposition is a plausible ruling. However, when the two dispositions occur simultaneously, the issue becomes considerably more complex, to the extent that six principal possibilities have been proposed in this case. The author argues that none of the following positions constitutes a sound solution: giving precedence to the disposition of the paternal grandfather or the father, granting the judge the power to choose between them, resorting to drawing lots, or declaring both dispositions invalid—although the precedence of the paternal grandfather’s disposition appears to be the stronger possibility. This is because each of these alternatives faces several objections. Therefore, between the two conflicting dispositions, preference should be given to the one that fully serves the minor’s best interests, since the very rationale for establishing guardianship over minors by their guardians requires such an approach. In particular, the general principle applicable to the issue, together with the possibility that prioritizing the more beneficial option is accorded significance by the Lawgiver, provides strong support for this view. This study offers innovations in three areas: (1) its focus on the subject of financial guardianship; (2) its comparative approach to the various positions and its detailed critique of some arguments that have been examined less; and (3) the strengthening of Imam Khomeini’s legal opinion on the issue through a detailed argumentative foundation.
کلیدواژهها [English]
)