عنوان مقاله [English]
Undoubtedly, civil responsibility In certain sense - arising from destruction and indirect causation- is one of the most complex branches of civil rights. The merger of this legal branch with various interests and policies, and the increasing influence of various developments in other sciences has made this field, the most dynamic civil rights sector. Meanwhile, speaking of the civil responsibility of the minors and insanes- are not discretion and inability to perceive- is one of the most important aspects that Is observer to the quality of interference the mental elements that has been the subject of much controversy and disagreement over the years in all legal systems of the world. Apparently, this issue is one of the challenges in civil- liability,s law because, on the one hand, the requirement of the ethical, emotional issues, and observer to Fairness and justice is The absolute or relative adjustment of the civil liability of such persons, and, on the other hand, the requirement of pure Superficial Justice, is The protection of individuals has been damaged. (Cees Van Dam, 2013, 269) The response of legal systems to this challenge, is different. From the perspective of some legal systems, both minors and insanes have full civil liability, but some of other systems, have only accepted the full civil liability of the insanes and They have decided to moderate responsibility in respect of the minors. Although, it seems, paying attention to the Objective justice along with security and discipline is more efficient in realizing the ultimate goal of justice.The main question that the present paper seeks to answer it, is whether the minors and insanes, have civil liability? In simple saying, is a discerning minor or insane has civil liability in return for the direct or indirect losses Which he has created? What is the position of the law of Islam, Iran, Afghanistan and India about this issue? Due to the deep relationship between the Iranian, Afghan and Indian nationals, especially in the south-eastern part of Iran, the Comparative study of civil responsibility of the minors and insanes, is imperative. In particular, there is no independent study in this area. The purpose of this research is to explain the views of legislators in Iran, India and Afghanistan on the civil responsibility of minors and insanes and Notifying the lawyers and law students at different legal views on this issue. Also, with a scientific analysis and an integrated look at the Objective justice alongside social security, we are looking for Presentation a distinct theory that is closer to justice and fairness.
2- Research methodology
The present research is a theoretical, descriptive-analytical research that is based on library studies, and the purpose is the objective and systematic description of the research,s subject. The method of data collection of The present research, is carried out by scanning and recording data (by referring to library and internet resources such as books, articles, newspapers, banks and databases, etc.). In this research, information is collected as a library-documentary. The method of analyzing the data of the present research is of a qualitative type and In the form of descriptive-analytical, which first describes the issues related to the main discussion and then analyzes the challenges ahead.
Contrary to this notion that is common among the Islamic jurists and lawyers, About that they consider indispensable and a Consensus the civil responsibility of in discerning people, it seems that there are also opposition tendencies and views in Islamic law. tendencies that occasionally Relatively(minimal) affect the Psychic elements in civil liability of in discerning people and, in particular, its effects, and sometimes, they are suspicious in absolute (maximally) the basis for the realization of responsibility for these categories of people Because of the lack of a mental element discretion. based on this approach, The forced compensation responsibility, approved in the form of modality. in the sense that at First the legislator approve the order duty of necessity of Compensation of damages and then He abstracted from it, The forced compensation responsibility of person who Caused the loss.
Therefore, because in discerning people (such as minors and insane) due to the lack of General terms of duty (that is, intellect and distinct power), in any case, they have not any order duty, so there is no forced compensation responsibility for them, because The forced compensation responsibility abstracting from the order duty, and because there is no order duty for in discerning people, naturally,the forced compensation responsibility will be eliminated from them. Therefore, in the assumption that the indiscerning people caused the illegitimate loss to another person,s property, he should not be required to compensate for damage as long as the terms of the task (for example intellect and distinct power and etc), are not collected to him. (Ashtiani Razi, 1429, 7,57-65; irvani, 2007,1,39; Na'ini, 1414,4,387; Iraqi, 1405,4,103; Khorasani, 1430, 3, 209; Sadr; 1423, 286,287; Hosseini Rouhani, 1434, 6, 129). From the point of view of Proof too , Imam Ali, narrates from the Prophet: The duty have been taken from three groups: " (1) From sleep until the time of wake up; (2) From insane person until the time of intelligence (3) From the child until the time of puberty. " (Tamimi Maghrebi, 1385, 1, 194).
Essentially, there is two systems of thought about the issue of effect (direct or indirect) the mental element in civil responsibility of the in discerning people. The systems those are subject to the objectivist rules, including the legal systems of Iran, Afghanistan, and the famous theory of Islamic law , believe that in the law of civil responsibility, what is genuine importance is a harmful act and the effects of the damage caused by it. And the goal is to return previously balanced collapse, in the shadow of the correctional justice and the principle of counterbalanced counteract. but subjective systems that tends towards it the India's rights that are based on the rights of the Common law of England, do not look at the situation of the parties as a completely impartially. Instead, the legislator and the judge would look at the case from the person's perspective and the actual mental state. In subjective attitudes, though it is important to compensate for losses, but more importantly, it is interfering the mental state of the suffering person in analyzing the case data. the proposed criterion of the authors -the middle and mixed criterion- is a criterion that modifies and Takes together the formal justice and extreme justice, a criterion that, as far as possible, treats equally with equals and treats unequally with unequal's. In this criterion, simultaneous attention is paid to two phenomena; one is the objective and material legal relationship between the parties to the dispute, and the other, to pay attention to the parties of the legal relationship, that is, the parties to the dispute. It seems to me, therefore, with regard to the native system of civil liability law, it can be suggested that the legislator approves the general principle of compensating for losses by the indiscerning injurer person (formal justice), but this would also be possible the adjustment of this general principle, according to the obvious characteristics of the indiscerning injurer person (such as the assessment of his activity with regard to the weakness of his mind power and his age, the existence or absence of financial power, the existence or absence of a guardian, the existence or absence of insurance coverage, etc.) (Righteous justice). for example, according to the proposed code, the purpose of "conventional" behavior in articles 951 and 952 of the Civil Code of Iran should be the conventional behavior in any group or subset of the indiscerning persons in accordance with Common and public features. The above criterion is a middle, complex, and combination of typical and personal criteria. In one sentence, it is a "relative objective" criterion, because it deals with each group or subset fit with it.
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