Jurisprudential analysis of determining the instances of the sick guardian in Note 2 of Article 495 of the Islamic Penal Code

Document Type : Original Article

Authors

1 PhD Student in Private Law, Razavi Islamic University

2 Associate Professor, Qom University

3 Razavi University of Islamic Sciences

Abstract

In Note 2 of Article 495 of the Islamic Penal Code, the legislator appoints a patient guardian for unconscious patients to satisfy the treatment or to acquit the special guardian; Introduces like father and general guardian (leadership position). This comment is one of the cases that are taken from jurisprudential texts. The question that arises about this comment is, who is meant by a special guardian? Are the patient's relatives authorized to sign the medical certificate? The present study, which has been written in an analytical-descriptive method, after examining the citations in the words of the jurists, concludes that this verse can be accepted as a general rule in answer to the above question And in case of anesthesia, the patient who has left the province can also refer to his relatives for acquittal. Legal and jurisprudential studies, including examining the use and citation of Imami jurists to the above verse by generalizing the verse or refining the manat, as well as reflecting on the current practice in the medical space of the country, reinforces the hypothesis that the meaning of the guardian in This remark is not a coercive guardian, but the consent of one of the relatives of the patient (a customary guardian) will be jurisprudentially and legally correct and will exempt the physician from responsibility.

Keywords

Main Subjects

Civil Jurisprudence Doctrines

Articles in Press, Accepted Manuscript
Available Online from 19 August 2023

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