Volume 15, Issue 56 (4-2021)
MLJ 2021, 15(56): 693-706 |
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Malekafzali Ardakani M, Karami F, Vahdati Shobeiri S H. A research on the jurisprudential principles of the Islamic punishment law about discharging the doctor. MLJ 2021; 15 (56) :693-706
URL: http://ijmedicallaw.ir/article-1-1422-en.html
URL: http://ijmedicallaw.ir/article-1-1422-en.html
1- Department of Law, Faculty of Law, Political Science and History, Yazd University, Yazd, Iran
2- Razavi University of Islamic Sciences, Khorasan Razavi, Iran
3- Associate Professor, Department of Private Law, Faculty of Law, Qom University, Qom, Iran
2- Razavi University of Islamic Sciences, Khorasan Razavi, Iran
3- Associate Professor, Department of Private Law, Faculty of Law, Qom University, Qom, Iran
Abstract:
Background and Aim: The Islamic Punishment law of 1392, while accepting the doctor's guarantee in treatments that even with the patient's permission, has introduced one of the ways of not guaranteeing the acquisition of previous innocence.
the doctor's discharge according law is count if the patient is obliged and able to discharge the doctor, Its the patient's right, and if he is not obliged (minor or insane) or obliged but for reasons such as anesthesia is unable to discharge the doctor, It’s the Right of "Patients Wali".
the issue of this research is about the range of acceptance of this view among jurists, other possible statements and the strengths and weaknesses of this statement compared to those statements and finally, the expression of the preferred statement.
The authors' hypothesis is that most jurists oppose the promise contained in the law and, on the contrary, strengthen the argumentative foundations of those who beliguareve in the right of the "patient's wali" to be acquitted of the guarantee resulting from the patient's death; Whether obligated or not.
Materials and Methods: The Current article, with its analytical and descriptive method and following the sayings of Imami jurists from the earliest to the latest, has been in a position to prove this hypothesis
and has come to the conclusion that the Islamic Punishment Law, should be amended in such a way that the physician is acquitted. Pre-said to be done by the "Patients wali".
Results: When the patient's life is discussed, the majority of jurists do consider the right to discharge a doctor to belong to man himself and - when he is not obligated - his religious Wali and consider it in the exclusive competence of "avenger of blood"
In contrast to this majority, there are minorities who consider it their right to discharge the doctor. The jurists who consider the the right of discharge of doctor to patient himself, if he is not obliged, naturally recognize the application of this right for his "religious Wali". A small number of jurists, recognizing this right for both the patient and the guardian, They are cautious about this issue and recommend the physician to absolve himself from both.
Ethical considerations: This research has been written on the principles of ethics, honesty and trustworthiness while maintaining and accuracy in the originality of the texts.
Conclusion: The legislator's action in granting the right to discharge a doctor to the patient or - when he is not obliged or unable to discharge - to his religious Wali to acquit the guarantee resulting from his death is against the opinion of the majority of Imami jurists and acceptable reasons There is a weakness. Therefore, it is necessary to amend Article 495 of the Islamic punishment law and Note 2 thereof to give the right to discharge a doctor in the aforementioned cases to the "patients blood avenger", it means the same claimant.
Cite this article as: Malekafzali Ardakani M, Karami F, Vahdati Shobeiri SH. A research on the jurisprudential principles of the Islamic punishment law about discharging the doctor. Medical Law Journal 2021; 15(56): e43.
the doctor's discharge according law is count if the patient is obliged and able to discharge the doctor, Its the patient's right, and if he is not obliged (minor or insane) or obliged but for reasons such as anesthesia is unable to discharge the doctor, It’s the Right of "Patients Wali".
the issue of this research is about the range of acceptance of this view among jurists, other possible statements and the strengths and weaknesses of this statement compared to those statements and finally, the expression of the preferred statement.
The authors' hypothesis is that most jurists oppose the promise contained in the law and, on the contrary, strengthen the argumentative foundations of those who beliguareve in the right of the "patient's wali" to be acquitted of the guarantee resulting from the patient's death; Whether obligated or not.
Materials and Methods: The Current article, with its analytical and descriptive method and following the sayings of Imami jurists from the earliest to the latest, has been in a position to prove this hypothesis
and has come to the conclusion that the Islamic Punishment Law, should be amended in such a way that the physician is acquitted. Pre-said to be done by the "Patients wali".
Results: When the patient's life is discussed, the majority of jurists do consider the right to discharge a doctor to belong to man himself and - when he is not obligated - his religious Wali and consider it in the exclusive competence of "avenger of blood"
In contrast to this majority, there are minorities who consider it their right to discharge the doctor. The jurists who consider the the right of discharge of doctor to patient himself, if he is not obliged, naturally recognize the application of this right for his "religious Wali". A small number of jurists, recognizing this right for both the patient and the guardian, They are cautious about this issue and recommend the physician to absolve himself from both.
Ethical considerations: This research has been written on the principles of ethics, honesty and trustworthiness while maintaining and accuracy in the originality of the texts.
Conclusion: The legislator's action in granting the right to discharge a doctor to the patient or - when he is not obliged or unable to discharge - to his religious Wali to acquit the guarantee resulting from his death is against the opinion of the majority of Imami jurists and acceptable reasons There is a weakness. Therefore, it is necessary to amend Article 495 of the Islamic punishment law and Note 2 thereof to give the right to discharge a doctor in the aforementioned cases to the "patients blood avenger", it means the same claimant.
Cite this article as: Malekafzali Ardakani M, Karami F, Vahdati Shobeiri SH. A research on the jurisprudential principles of the Islamic punishment law about discharging the doctor. Medical Law Journal 2021; 15(56): e43.
Type of Study: Original Article |
Received: 2020/12/2 | Accepted: 2021/05/12
Received: 2020/12/2 | Accepted: 2021/05/12
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