فهرست نشریات علمی دسترسی آزاد ایران

Background and Aim: The liability of a non-culpable, authorized physician in the event of injury to a patient is one of the controversial issues proposed among Imamiyyah scholars. Jurisprudential disagreement on this matter has led to the adoption of various approaches throughout the legislative period following the victory of the Islamic Revolution. Specifically, until the adoption of the Islamic Penal Code in 1392 SH, following the majority opinion of jurists, the theory of the physician's absolute liability was accepted. However, despite this theory being accepted in the judiciary's draft of the Penal Code and also in the initial bill passed by the Islamic Consultative Assembly (Majlis), the Guardian Council deemed this perspective flawed. Consequently, in order to resolve this flaw, the Majlis, by adding a note, approved the less prevalent view, namely the theory of the physician’s fault-based liability. The legislation of this less prevalent view, after three decades of the dominance of the theory of the physician's absolute liability, raises the question: what is the basis for the legislator's deviation from this theory? Materials and Methods: The present research has been conducted using a descriptive-analytical method. The data was analyzed qualitatively by referring to documents and library resources. Conclusion: The findings indicate that the legislator's deviation from the majority opinion of the jurists in the Islamic Penal Code adopted in 1392 SH was not due to the strength of the foundations of the less prevalent view. Rather it was a result of the incorrect interpretation of the majority opinion and the jurisprudential decree (fatwa) of Imam Khomeini (RA) during the stage of religious (Sharia) review of Article (495) of this law. The Guardian Council declared this article to be in contravention of Sharia, and consequently, the Parliament amended the approved bill in accordance with the less prevalent view in order to satisfy the Guardian Council's opinion. Therefore, considering the error that occurred during the religious review stage, and given the solidity of the evidence supporting the majority opinion, it is necessary to stablish the jurisprudential decree of the Supreme Leader (Vali-e Faqih) as the standard for state regulations, to resolve the ambiguities and contradictions present in the current article, to replace the text of Article (495) with the original draft from the Judiciary and the Parliament's initial bill and to remove note 1 (Tabsareh 1) of this article.