نوع مقاله : مقاله پژوهشی
1 دانشیار، دانشکدۀ الهیات، دانشگاه تهران، تهران، ایرانb
2 دانشجوی دکتری، فقه و مبانی حقوق اسلامی، دانشگاه مذاهب اسلامی، تهران، ایران
عنوان مقاله [English]
One of the institutions that has less considered analytically from different dimensions, despite having vast applications in law and jurisprudence, is the guardianship of father over the child. This writing tries to investigate the nature of the guardianship of father over the natural child and legitimate child from the viewpoint of right or rule in Imamiyyah jurisprudence and civil law. The study of jurisprudence resources shows that the interpretation of the guardianship in the traditions of infallible Imams (peace be upon them) and the statements of the jurists pertains to the general meaning of the right that includes the rule. Considering, in addition, the capability to waive the right that is regarded by the jurists as the main specification of the right in its specific term, the lack of capability to waive the right of guardianship shows the ruling role of this institution both for the legitimate child and the natural child. Despite the fact that it has not been stipulated in the civil code, since it is followed by the famous jurists, the civil code also agree with that. It is worth mentioning that according to the opinion of the contemporary jurists all of the effects of the guardianship except inheritance are applied to the natural child too.