نوع مقاله : مقاله علمی پژوهشی
نویسنده
استادیار گروه فقه و حقوق دانشگاه بزرگمهر قائنات
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
An active or a neutral role for the judge regarding the issues is rooted in the acceptance of the originality of the individual or the community. In Article 156 of the Constitution, the middle theory is accepted and the judiciary is supporter individual and social rights; But the legislator in article 199 of the Civil Procedural Law like the followers of the community originality, allow the judges conduct any investigation. Despite the above article, there is disagreement regarding Tahsile Dalil. The question of the current research, which is written with descriptive-analytical method, is about the possibility and conditions of Tahsile Dalil. If there is incomplete evidence in the case and the Tahsile Dalil doesn't conflict with other regulations, the judge is allowed to do so in civil cases. In criminal cases, the judge is allowed to Tahsile Dalil, except for those related to Allah rights. Despite the lack of clear opinions of jurists regarding the Tahsile Dalil; But in jurisprudence, some reasons point to the necessity of justice and others point to the impartiality. In some jurisprudential opinions have been emphasized justice to the extent that the judge is not exposed to the accusation of partiality, which is a good theory. Imam Khomeini didn't explicitly comment on the Tahsile Dalil; But he pointed the impartiality of the judge, and on the other hand, he emphasized the necessity of discovering the truth; so we can consider the selected theory about the Tahsile Dalil to be consistent with the Imam's opinion.
کلیدواژهها [English]
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