نوع مقاله : پژوهشی
1 دانشیار گروه حقوق خصوصی و اسلامی، دانشکدۀ حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
2 دانشجوی دکتری حقوق خصوصی، دانشگاه عدالت، تهران، ایران
عنوان مقاله [English]
The Civil Code recognizes that most of the natural wealth and public property without an owner can be owned by members of society under the general title of permissibility. This sentence, which is stated in Article 27 of this law and is detailed in Articles 141 to 182 of this law, is based on the natural theory that was prevalent in the world in the eighteenth century and with the entry into force of the French constitution and civil law, other Legal systems, including Iranian law, have been infiltrated.
However, changes in social conditions and shortcomings in the natural theory of private property led to the passage of several laws in Iranian law that were inconsistent with the provisions of civil law on permissible property. These changes, which took place especially after the years of World War II, after the victory of the Islamic Revolution, were accompanied by a change in the jurisprudential view due to the establishment of the Islamic government and the tendency to nationalize public property and further encouraged this. Article 45 of the Constitution is the culmination of the incompatibility of the provisions of the Civil Code with other laws in this regard.
In the present article, by discussing the above issues and examining the evolution of rulings related to the possession of public property in French law and in Imami jurisprudence, we will examine the need to amend the rulings related to permissible property in civil law and provide suggestions for this amendment.