النيابة الشرعية بين الفقه الإسلامي و القانون الجزائري

Abstract

Abstract The Legal Representation is a legal regime was set by the Algerian legislator to protect a group of persons who are unable to act, where its substantive provisions were put in the Family Code in its second book, with some relevant articles of the Civil Code, while the rules of procedure were laid in the Code of Civil and Administrative Procedure. The Algerian legislator derived these provisions from the Islamic jurisprudence, which called the regime of the Legal Representation by the name of the tutelle, which means authority over the person and her money. The same meaning adopted by the Algerian legislator and the Arab comparative laws. Persons subject to the regime of the Legal Representation are the minors and the prohibited persons by a judicial judgment, the incompetent (the folie and the blind) and limit capacity (the foolish and the negligent), in addition of the absent and the missing by a judicial judgment as such. The functionaries of the legal representative are the legal guardian, the testamentary guardian and then curator, in addition the mandate given to the judge and relatives in some cases. the subject of the Legal Representation is the creation and execution of acts in the personal or financial status of the person under the regime of the Legal Representation. In the first side, which is called (alwilaya ala annafs) the matters of marriage and divorce and their effects. And in the financial side called (alwilaya ala almal) the legal representative for the minors and the prohibited persons has the mandate of conservation and development and investment. As for the funds of the absent and missing persons, the original is the preservation and exception of development, although the Algerian law and Arab comparative laws did not provide for this and equalized between the management of funds of minors and prohibited persons and the management of funds absent and missing persons. The Legal Representation ends for several reasons, the reasons for the persons who are subject to the Legal Representation: The minor when amount to age of majority or by a judicial majority, prohibited persons by a judicial judgment romove the interdiction, the absent and the missing persons also by a judicial judgment considered them dead or by ther returns alive. Reasons related to the legal representative is his dismissal, demission, inability or end of the tasks if he was a temporary testamentary guardian, in addition to the death of truth or by judgment and loss, which are common causes between the legal representative and minors and the prohibited persons. The end of the Legal Representation arranges a range of effects: The transmission of money to the minor and the prohibited persons after the majority, and recover the money of missing person if he returned alive, and also the accountability of the legitimate Attorney and the possibility of establishing his responsibility.