Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed
Judge independence guarantees fair hearing. Famous jurisprudents consider withdrawal of judgment for Mojtahed and consider his sentence to be effective. But according to note 3 of the Civil Procidure code: "If the judge is a mujtahid and consider the law unlawfull, the case will be referred to...
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| Format: | Article |
| Language: | fas |
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Semnan University
2021-08-01
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| Series: | مطالعات فقه و حقوق اسلامی |
| Subjects: | |
| Online Access: | https://feqh.semnan.ac.ir/article_4928_4b22d1cfaca1c455f01349308afc3fbe.pdf |
| _version_ | 1797296349564108800 |
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| author | Tahereh Farmanesh Alia;bar Izadifard Aliakbar Jahani |
| author_facet | Tahereh Farmanesh Alia;bar Izadifard Aliakbar Jahani |
| author_sort | Tahereh Farmanesh |
| collection | DOAJ |
| description | Judge independence guarantees fair hearing. Famous jurisprudents consider withdrawal of judgment for Mojtahed and consider his sentence to be effective. But according to note 3 of the Civil Procidure code: "If the judge is a mujtahid and consider the law unlawfull, the case will be referred to another branch for consideration", and it seems that Judge Mojtahed's scientific and practical independence has been challenged. The authors argue that preventing Judge Mojtahed from ruling without contravening the principles of judgment contradicts the independence of the judge, contrary to the law. The perverse implications of this are the isolation of ijtihad in the judicial process and, the excessive presentation of the virtues and dignity of Mojtahed. Therefore, by meditating on the narrative and rational documentation, the legislative approach in the note, as the only way out of the challenge, rejects the issue of referring the matter to the Guardian Council or the Jurisprudential Council or the Fatwa of the Supreme Leader, as a competent reference for recognizing conformity or noncompliance. Laws are recommended by law. |
| first_indexed | 2024-03-07T22:03:22Z |
| format | Article |
| id | doaj.art-88287a2515e647c2b0a64062b41c3fd4 |
| institution | Directory Open Access Journal |
| issn | 2008-7012 2717-0330 |
| language | fas |
| last_indexed | 2024-03-07T22:03:22Z |
| publishDate | 2021-08-01 |
| publisher | Semnan University |
| record_format | Article |
| series | مطالعات فقه و حقوق اسلامی |
| spelling | doaj.art-88287a2515e647c2b0a64062b41c3fd42024-02-23T23:20:13ZfasSemnan Universityمطالعات فقه و حقوق اسلامی2008-70122717-03302021-08-01132435138410.22075/feqh.2020.20004.23614928Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge MojtahedTahereh Farmanesh0Alia;bar Izadifard1Aliakbar Jahani2PHD student of jurisprudence and Islamic law principles of Mazandaran universityUniversity of MazandaranMazandaran UniversityJudge independence guarantees fair hearing. Famous jurisprudents consider withdrawal of judgment for Mojtahed and consider his sentence to be effective. But according to note 3 of the Civil Procidure code: "If the judge is a mujtahid and consider the law unlawfull, the case will be referred to another branch for consideration", and it seems that Judge Mojtahed's scientific and practical independence has been challenged. The authors argue that preventing Judge Mojtahed from ruling without contravening the principles of judgment contradicts the independence of the judge, contrary to the law. The perverse implications of this are the isolation of ijtihad in the judicial process and, the excessive presentation of the virtues and dignity of Mojtahed. Therefore, by meditating on the narrative and rational documentation, the legislative approach in the note, as the only way out of the challenge, rejects the issue of referring the matter to the Guardian Council or the Jurisprudential Council or the Fatwa of the Supreme Leader, as a competent reference for recognizing conformity or noncompliance. Laws are recommended by law.https://feqh.semnan.ac.ir/article_4928_4b22d1cfaca1c455f01349308afc3fbe.pdfindependence of the judgeijtihadjurisprudence councilguardian council |
| spellingShingle | Tahereh Farmanesh Alia;bar Izadifard Aliakbar Jahani Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed مطالعات فقه و حقوق اسلامی independence of the judge ijtihad jurisprudence council guardian council |
| title | Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed |
| title_full | Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed |
| title_fullStr | Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed |
| title_full_unstemmed | Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed |
| title_short | Investigation of the Conflict of Note 3 of Article 3 of the Code of Civil Procedure with the Independence of Judge Mojtahed |
| title_sort | investigation of the conflict of note 3 of article 3 of the code of civil procedure with the independence of judge mojtahed |
| topic | independence of the judge ijtihad jurisprudence council guardian council |
| url | https://feqh.semnan.ac.ir/article_4928_4b22d1cfaca1c455f01349308afc3fbe.pdf |
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