نوع مقاله : مقاله پژوهشی
نویسنده
استادیار، گروه حقوق، دانشگاه آزاد اسلامی، واحد ساوه، ساوه، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The determination of compensation methods has become increasingly complex in light of recent social developments and the expansion of non-pecuniary and multifaceted damages. The main question of this research is: on what jurisprudential foundations and legal criteria does the court rely in selecting the appropriate method of compensation, and how can the scope of this discretion be defined? Accordingly, this study aims to analyze the substantive rules governing judicial discretion in determining compensation methods using a descriptive-analytical approach.
The findings indicate that judicial discretion in this regard is not absolute and is confined within a framework of principles such as the rule of “la darar” (no harm), rational practice (bināʾ al-ʿuqalāʾ), customary understanding (ʿurf), and the principle of removal of hardship (nafī al-ʿusr wa al-ḥaraj). Based on these principles, the proportionality between the type of damage and the method of compensation requires that the form of reparation correspond to the nature of the harm, and in some cases, purely financial compensation alone is insufficient.
Moreover, judicial reasoning and fairness require the judge to adopt a method that best reflects the actual harm and restores the disturbed balance. In addition, restorative justice approaches, supported by institutions such as reconciliation (ṣulḥ) and amicable settlement (iṣlāḥ dhāt al-bayn) in Imamiyya jurisprudence, provide further justification.
Furthermore, in bodily injury compensation, institutions such as “arsh” (non-fixed compensation) demonstrate the role of custom, expert assessment, and judicial evaluation in determining the type, extent, and quality of compensation.
کلیدواژهها [English]