چکیده:
In disputes between the Muslim governor and state with the citizens، apart from the issue of initiating an action versus the ruler and government، there is this question that who is competent for its trial? Can this ruler hear the case which himself is one part of it? Similarly، there is this question that does the Islamic ruler or state require to raise an action in order to receive the public rights or ، as thought by others، according to his absolute guardianship، can the governor carry it out without resorting to any judicial strategy? In this paper، with a glance at the admissibility of bringing an action versus a governor، absolute majority of Shiite jurists`s viewpoint have been confirmed: in those cases that the Islamic Governor or judge is one of the parties، it should be resorted to arbitration of a third person. In the other hand، by raising an action against state which its personality has no reality except abstraction، there is a question that can it bring an action against a legal person? In this article، in addition to a positive answer to the mentioned questions، it was stated that there are some probabilities regarding the types of relationship between natural person of a governor and legal person of a state، and the nature of initiating proceedings was explained as each case appropriates.
خلاصه ماشینی:
To explain, while it is true that in this narration Amir al-Mu'minin 7 criticized Shurayh's action (because, given that the armor was stolen, he should not have requested a witness from him) and also reminded that when the ruler is considered a trustee over the financial and non-financial affairs of society, which are much greater and more important, he will a fortiori be a trustee in these minor claims that are in the direction of preserving the interests and benefits of the public treasury, and his claim is an accepted matter; nevertheless, neither the criticism of Shurayh's work nor the concluding point of the narration prevents the general principle regarding the possibility or necessity of filing a lawsuit; because: First, the situation is not always such that the ruler has knowledge of the reality; this assumption rarely occurs in a situation where governments now have vastness and complexity in their work, and especially with the relative acceptance of the principle of separation of powers; in other words, even assuming that based on this narration, the ruler himself would not need to file a lawsuit to obtain a right in a case where he has knowledge of the reality, this cannot be extended by removing the specificity to other officials, nor to the case where knowledge of the reality does not exist and judgment is made solely based on principles and rules such as the principle of istishab and the rule of yad in favor of the ruler or officials; and even with the assumption of doubt, one must resort to general evidences and rules, the requirement of which is nothing other than recourse to a judicial ruling.
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