أثر فقد الموکل على الوکالةمناقشة فقهیة قانونیةفی الفقه الإسلامی والقانون العراقی

	أثر فقد الموکل على الوکالةمناقشة فقهیة قانونیةفی الفقه الإسلامی والقانون العراقی
Kirkuk University Journal: Humanity Studies
Article 11, Volume 3, Issue 1, 2008, Pages 188-212
Abstract
Abstract A missing person is the one whom nothing is known about his destiny . i.e. whether he is alive or dead . The status of the missing person is declared by a court decision. This declaration is abrogated in case of any evidence showing he is alive being present. The court shall nominate a custodian for the missing person incase he has no trustee. The custodian shall be put under the supervision of juvenile Welfare Directorate. and he exercises the same rules applied for the guardian. By nominating the custodian the properties of the missing person shall be freed and managed by the former. This is similar to the case of managing the properties of the under aged where no property shall be sold unless it is subject to damage. Moreover. It is not allowed to buy property using his name except for what necessitates maintaining and managing his property. Submitting her status to the judge. the missing person s wife shall await for four years ( with getting married again) during this period the judge shall spare no means looking for the missing person. If no sign shows the possibility of his return the judge shall wait. If the one acting on behalf of the wife has a deputy who manages his affairs the judge shall order him to divorce. After divorce the wife shall spend her period of waiting after which she may be allowed to remarry. During the period of the missing person s absence. His wife has the right to spend from his money even if her missing husband has not really consummated the wedlock ( he had not have coitus with her) because he is the party on side of whom this situation had happened. The state of absence ends by the death of the missing person and the court shall have the right to declare him dead if it has a decisive with regard to his death and if four years have passed since decisive evidence or if he was missed in certain conditions that make his death more probable with two years after declaring his missing . The day of issuing his death shall be regarded as the date of his death after which his inheritance shall be divided among his heirs who are alive at the date of his death issuance. In case the missing person returns his properties shall be brought back to him. In case his death is affirmed whether legally or really. his properties shall be delivered to his inheritors. On investigating the provisions concerning the missing person the issue regarding his trustee is raised since it has not been talked neither in the chapters of deputyship provisions nor in those of the missing person ones. After the death of the authorizer missing person the authority which he gave to his deputy shall be terminated unless a decision of otherwise is to be issued by the court. This matter was of a highly controversial nature.

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