The provisions Of the missing in Islamic Law (Comparative with Iraq)

Undoubtedly, the situation with respect to the life of the person before the law; It is divided into three parts: the exact one who lives, the exact one who dies, and the missing / weird / lost, that is, whether he is alive or not. Our research focuses on the legal situation of the human being in the third situation, for which there is no clear information about his life or death. In the legal literature, this is called missing. The situation of the missing person is of paramount importance in positive laws, including the Iraqi constitution. However, before all this, Islamic law emphasized this issue and emphasized its importance. The missing person; The fact that they describe them as unidentified people, whether they are alive or not, shows the importance given to sectarian imams. Inspired by this definition, the Iraqi constitution has described the missing person as absent a missing person whose survival is unknown. In fact, the Iraqi constitution has taken many of its provisions from Islamic law. Our research has addressed the issue in terms of Islamic law and the Iraqi constitution. In Islamic law and the Iraqi constitution, the provisions concerning the missing person were stated and preferred among the views of the four Sunni sects and the Shi'a imamiyya sect. In addition, provisions concerning both the missing person and his family and property were determined. In this study, the conflicts of the sect imams concerning the missing persons were examined. Because this issue is more important especially due to the frequent incidents of loss. Our study; The preface consists of an introduction and two main sections. In the preamble; the subject, importance, objectives, previous studies and method of the research are discussed. In the introduction section; The dictionary and term meanings of the concept of "disappeared" are discussed and the difference between this concept and the concepts of "captive" and "weird" is mentioned. In addition, it was stated that the loss was divided into two parts, one of which was considered to be the apparent salvation of the disappeared and the other was considered to be destroyed, but both cases resulted in the emergence or death of the disappeared. In the first chapter: The provisions of the missing person in Islamic law and the Iraqi constitution are discussed. According to Islamic law, a person is considered "lost an from the moment the news of the disappearance is presented to the court, which affects the driver's license and causes him to be considered a kişi restricted person.. The Iraqi constitution also complied with Islamic law. the judge shall set a deadline for the disappeared person to be considered dead and, if not present, shall rule on his or her death. There is controversy among sect imams about how long this period should be. Some are based on the average life expectancy, some have limited this period to a few years, while others have left the decision on the judge's initiative. Our research; the opinion which gives the decision of the judge to the initiative of the judge was preferred. In the Iraqi constitution; if the disappeared person is normally lost, a waiting period of four years is determined. In addition, provisions relating to the disappeared person's spouse are discussed in this section. Because in marriage, the person's life or death of his wife must wait for a while until the final judgment. However, there is disagreement among the denominations regarding this period and each denomination has a waiting period according to the situation of the loss. The Iraqi constitution complied with the Hanbali sect. All denominations agree that the spouse has the right to child support during the waiting period. The Iraqi constitution has adopted the opinion of sects on this issue. However, in the absence of child support, the imams disputed whether or not the woman had the authority to divorce her missing husband. In this case, Hanafi and Imamiyya sects do not give women the right to divorce, while Malik and Hanbali sects gave this right to women. The Iraqi constitution also granted this right to women. There is disagreement among sects about whether a woman has the right to divorce her missing husband because of her need for marriage. While the Shafi'i, Hanafi and Imamiyya sects did not give this right to women, the Malik and Hanbali sects gave him this right. The Iraqi constitution did not provide a clear view on this issue. Since the whereabouts of the missing person is not known, there are different opinions among the denominations as to whether the spouse has the right to divorce. According to Hanafi, Shafi'i and Imamiyya sects women do not have this right. However, according to the sects of Malik and Hanbali he has this right. The Iraqi constitution, on the other hand, complied with the Shafi'i, Maliki and Imamiyya sects and decided that the woman did not have the right to divorce her missing husband. After the death sentence is issued for the missing husband, his wife must expect violence just like the woman whose husband died. There is a consensus between Islamic law and the Iraqi constitution. Provisions concerning other relatives of the missing person are also discussed in this section. There is no controversy between Islamic law and the Iraqi constitution as to the need to pay child support from the property of the missing person. In addition, the missing person loses all of his powers as long as he is lost because his license is limited. In this section, the provisions concerning the property of the missing person is also mentioned. Issues such as how the attorney appointed before the disappearance or the attorney appointed by the judge after the disappearance should save on the property of the disappeared person, the will and legacy of the missing person were also discussed. In the second part: the provisions concerning the occurrence of the disappeared after the sentence of death have been emphasized. Because in this case, all the provisions given to him are considered to be dead and all his legal rights are returned to him. Because precise information removes the provisions on suspicion. In this case, she still has the right to demand the return of her spouse, provided that she does not marry another person or is married but has no sexual relations. However, if the new husband has sexual intercourse with the woman, provided that he is unaware of the disappearance of the disappeared person, the right of the ex-husband to request the return of his wife falls. There is no controversy among sect scholars in this regard. However, the Iraqi constitution granted the new husband the right to disappear and not return husband. The missing person has the right to reclaim his property when he returns. All goods are returned to him except the goods that are spent or wasted after being given to the heirs. The situation of the goods expended caused a conflict among the sects. However, the Iraqi constitution ruled that all goods, except those consumed for alimony, be returned. To know what happened in the Iraqi courts; Some examples and judicial decisions related to the missing person, family, property and return are mentioned at the end of the chapter. In the conclusion part, the most important points reached in the research are mentioned.