أحكام النيابة الشرعية في قانون الأسرة الجزائري.

Abstract

This study aims at defining the legal system of the legal representation, indicating its dispositions within the family law, analyzing its texts and bases, shedding light on its legal applications and demonstrating to what extent are these dispositions based on Islamic legislation-being the first principle source of this law. It, then, aims at pointing out the strong and weak aspects of this system, comparing its basics with those of the Moroccan legislation to which it resembles, in terms of source and structure. The study, in its first section, entitled : ‘The Essence of Legal Representation’, focuses, in the first chapter, on defining legal representation, distinguishing it from other similar systems, delimiting its scope, and reaching the conclusion that legal representation allows the representative to replace the represented in managing his personal and financial affairs. This is different from the power of attorney in that it is imposed on the represented person due to his inability and weakness. The latter delimits the scope of legal representation as being found in a state of inability and weakness, that may be manifested in: underage, madness, imbecility, foolishness, absence and disappearance The second chapter indicates the different applications of legal representation, which are guardianship, custody, appointed legal representation and kafala, with their respective definitions, beneficiaries, conditions and procedures of appointment. The second section entitled : ‘the effects of legal representation’ focuses on the effects of legal representation in two chapters. The first chapter explained and the powers of the legal representative on the person represented, either on his personality through protection, education and marriage, or on his money through preservation and investment. The chapter indicates the limits put by the Algerian legislator to protect the person represented. The second chapter highlights the legal surveillance on the legal representative to reinforce the protection of the represented person. It shows that legislation is rich of texts and laws which prevent the legal representative from abusing his powers, or assaulting the represented person psychologically of financially. In case of assault, the legal representative is accused civilly or legally and the law ends his representation function, which is one way, among others, to end legal representation.