جستجوی مقالات مرتبط با کلیدواژه "anfal" در نشریات گروه "فقه و حقوق"

Contemplation and investigation of various narratives by the Imamiyyah jurists about the ownership of oil and gas mines reveal that four theories are more popular. They include the inclusion of the mines by the concept of Anfal (profits), Ibahah (permissiveness) in mine ownership, subordination of mine ownership to land ownership, and the difference between inner and outer mines. Since these controversies have led to the ownership of the oil and gas mines by the government, or public and private ownership, and the difference in the way these resources or their benefits are used, this topic has been always a challenge and a bone of contention. In the Iranian legal system, oil and gas ownership has been studied under the title of “mine’ and the influence of Imamiyyah jurists. Although some scholars have considered the approach of the legislator based on the theory that mines are absolute Anfal, the findings of the present study, referring to principles 44 and 45 of the constitution, indicate that actually, the legislator has issued a general ruling without considering the jurisprudential issues related to the examples of Anfal or inclusion/exclusion in Anfal. It has attributed the ownership of the Anfal and public wealth to the government only by the term “in possession” so that it can act in accordance with public interests. The same basis has been reflected in the Petroleum Act of 1987 and the Amendment to the Petroleum Act in 2011, and the government has entrusted the Ministry of Oil with the exercise of sovereignty over oil resources and facilities on behalf of the Islamic government.

Based on Article 45 of the Constitution, public waters are considered part of the Anfal, but according to the opinion of the jurists of the Guardian Council that it is against Sharia to count the waters as Anfal, Article (1) of the Law on the Equitable Distribution of Water is set in such a way that public waters are considered part of the commons. he does. On the other hand, the examination of the opinions of jurists and different jurisprudential approaches in the field of the nature of public waters shows that it is possible to pursue different approaches to the exploitation of public waters based on considering public waters as part of public waters. According to the legal status of irrigation rights, the question arises as to what is the optimal jurisprudential approach in the challenges of using rights in public waters. The findings of this research with a descriptive-analytical approach from the base of reference to library sources showed that there are the necessary jurisprudential foundations to consider public waters as enfal, but considering public waters as part of the public commons, as well as the state of their being enfal, the legal confrontation with the rights in Cases such as the definition of the right to irrigation or the legal effects of the reduction of traditional rights by the government in order to modify the pattern of water consumption in the laws of the five-year development plans, should not be based on the argumentative approach of considering public waters, which allows any amount of private ownership in public waters.

In Islamic jurisprudence, special provisions have been established for natural resources, especially forests and pastures. According to Shia jurists, natural resources, including Anfal, belong to the Imam. If it is pasture and forest that has been dedicated. This endowment is valid and valid when humans are involved in the creation of that forest and pasture. But the important issue under discussion is that the inhabitants of the forests of northern Iran and other forest parts of the country for many centuries and based on history and very old objects discovered in places in the northern provinces of Iran and other similar places, have a history of several thousand years of residence. They have been in the heart of the forests and considered themselves the owners of those areas. This sense of ownership in the forest made some believers dedicate forest lands under their control for various purposes. With the establishment of the Nationalization of Forests Law, the challenge of endowment of these lands was raised, therefore the law accepted the endowment lands before the adoption of this law, but did not accept the endowments after that due to the endowment of property by someone else. This research is of applied type and based on jurisprudence and legal sources, it examined the validity of forest land endowments after the approval of the nationalization law of forests by means of content analysis. The result of the research is: If a person rehabilitates a ruined forest, that part belongs to him and there is no problem in donating it.

credit can be imagined in public, private and government formats. One of the important types of mines is oil and gas mines, which have been presented with various theories in jurisprudence as well as laws and legal doctrine regarding the ownership of them from the public and private aspects. The present research deals with the structural explanation of the private and public ownership system in the form of oil and gas mines based on jurisprudential and legal foundations by examining jurisprudential and legal documents. The results of this research show that, although the jurisprudential approach and even the laws initially prefer private ownership over public ownership, and with the passage of time and the transformation of oil and gas as one of the national wealth, public ownership has sovereignty over them. In determining the rules governing public wealth, one can pay attention to the attitude of jurists in determining the nature of the relationship between Islamic government and Anfal, and in general, the approach of jurists in determining the nature of the relationship between Islamic government and Anfal can be seen in cases such as: inherent priority or ownership He gave priority to the imam's real person, the possession of the imam, etc.) The research method in this study is descriptive-analytical, and the library method was used to collect the sources.

Oil, as an economic and strategic commodity, has played an effective and decisive role in the political and economic destiny of the country and its people since the past and because these resources belong to the people, and on the other hand, its management is the responsibility of the government according to the law, entrusted to act according to the interests the people. In order to realize this, it is necessary to comply with the principles and requirements that the theory of enforcement to public rights in Anfal and public wealth in oil and gas sector tries to explain the necessity and manner of realizing these rights and the obstacles to their realization by respecting the property rights of the people. In the regard, the management of exploration, optimal production, the manner and quantity of supply, the income from exports and the manner of spending it are of particular importance. One of the positive and influential factors for the realization of public rights is the key role of the government in implementing good governance and regulation in order to restore and protect these rights, and the effective and reciprocal role of the people in this regard, and the negative factors are the weakness of laws and inefficiency, Management officials pointed out. The main questions raised in this article are: What is the performance of the responsible party to realize peoples, rights in oil and gas natural resources? Are there practical measures and serious determination to solve the problems in the industry and remove the obstacles to the realization of peoples right in natural resources of oil and gas? The evaluation of the performance of officials and law in a descriptive and analytical way has been examined in this article.

Anfal is a general term that includes a wide range of properties with different characteristics. The distinguishing criterion of Anfal is not having a specific owner and public property such as favorable or abandoned lands, mines, seas, lakes, rivers and other public waters, mountains, valleys, etc. is at the disposal of the Islamic government to treat them according to public interests act In this research, with analytical-descriptive method, Anfal and its relationship with public law have been investigated. Anfal are properties that have relatively many examples and public law recognizes the right to use these properties for the general public. Public rights guarantee the public ownership of people on the enfal. . As an example, the use of rivers, pastures, and forests, which are all included in anfal, is manifested through public rights. Judicial authorities (prosecutors) are required to protect and restore these rights. In fact, Anfal is considered as public property that can be used by everyone in the same land, and public rights can also be related to the use of Anfal as a right. Protection of this right in the legal system is entrusted to the prosecutor. Therefore, the prosecutor should monitor the rights and benefits that are obtained from the use of Anfal by the general society, and wherever a right has been violated, it should pursue its public justice.

Water as the most important factor in the formation of civilizations has long been considered by everyone. In our country, due to being in the dry and desert belt, the importance of this vital fluid is doubled. Conflict of interests in this field and competition for its ownership It is possible to reflect more and more on the legal nature of this vital blessing and to examine the impact of identifying this legal nature in the exercise of public rights. What is the effect of inland water supply on public rights? This research seeks to answer this question with a descriptive-analytical method. What is the relationship between the legal nature of inland water and its recognition as public law? The system of water ownership, which was previously discussed under private law, has entered the realm of public law. It is the provision, guarantee and restoration of these rights. However, a mere economic view of water is not without its drawbacks, and recognizing it as the basic and basic need of citizens beyond economic value is a transcendent view. It is examined what other divisions such as private property, Anfal, permissibility, etc. can have in allocating this vital fluid to the public as an inalienable right.

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.

In today's era, natural capitals are very important in economic prosperity and active production cycle, because the production of factories mostly depends on the raw materials obtained from these mines, and on the other hand, the capital of some countries is also obtained through the extraction of reserves. It is provided underground, including oil. Therefore, the importance of mines in providing financial resources, industrial development and economic progress of countries is undeniable. Therefore, considering the importance of mines in the economic development of countries, its extraction requires laws and regulations that clearly explain the rights of the government and the nation; Because the arbitrary extraction of mines can lead to irreparable negative economic and environmental consequences. Therefore, by analyzing the rules, foundations and legal sources between public and private ownership, the present research seeks to answer the question, who is the main owner of mines from the perspective of Islamic jurisprudence and English law? And it has come to the conclusion that despite the existing differences, from the perspective of famous Islamic jurists, mines are a part of Anfal and its authority is in the hands of the imam or ruler of Sharia, and in English law, there are two different views on the ownership of mines, one theory of ownership It considers mines to be subordinate to land, and the second theory considers mining ownership to be separable from land ownership and negates the land owner's ownership of mineral deposits hidden in its depths.

One of the important tasks of the Islamic state is Fair distribution of wealth. The anfal lands too, is one of the most important sources of public wealth and The policy about it was so important that led to The White Revolution in Pahlavi regime. But after the revolution, Lack of Precise policy and Update, to cause with Land seizures,privatization and even nationalize, These sources which must be at the disposal of all the people and increase public welfare, to the sources of private wealth, and Public law Ignore. So, with respect to Special concern Imam Khomeini and The supreme leader of the leadership in the Optimal management, this research aims In the light of the general policies, to study of The extent of criminal policy inaction in the Follow these policies. The finding of this research is that Although about management of anfal lands to correct diagnosis Constitutional experts, Constitutionalisation of structural In the context of Principle 45, but Constitutionalisation of intrinsic, was neglected. Among the reasons for this, Lack of single management, Lack of differential criminal policy, lack of attention to jurisprudence, including the prohibition of transferring them, and Performing plan of Cadastre and It also lacks the economic system Use of anfal lands Can be named.

One of the important issues in Islamic society is the natural capital of a society. Valuable resources such as oil and gas are also included in these funds. In addition, Anfal is considered as one of the most important national capitals on which many policies of the country's administration and economy depend. In addition, the principle of permanent sovereignty over natural resources means that countries with natural resources have the right to control, extract and sell natural resources in their territory. In the legislative structure, oil and gas resources can be connected to Anfal in the formulation of its law. This connection is based on rules or rational criteria (such as Sirah. The application of reasons indicating the process of reviving dead resources. It is against the requirements of private ownership of the category. Anfal, etc.) Moreover, the criterion of narration (the context and meaning of the verses and traditions related to it) the ability to establish. It is implemented.

Anfal is derived from the word "nafal" and means "a lot". On the other hand, a look at the narrations and jurisprudential books shows that there are several examples of Anfal. Accordingly, the present article tries to explain the concept of Anfal in order to identify cases of Anfal. The method of the present research is documentary and library type and is of qualitative type based on checking its definitions and examples in jurisprudential sources. In general, the results of the research show that the cases of Anfal have been mentioned more in jurisprudential texts; However, explaining the idiomatic meaning of Anfal by the jurists can also determine the context for approaching other cases. The question that arises is whether a general criterion can be achieved in the induction of Anfal cases? Some contemporary jurists have defined Anfal as "we are not the Lord"; But the suggestion of the present article is that the lack of definition of Imams (AS) and jurists is due to the fact that the literal and idiomatic meaning of Anfal is the same and means "excess on the principle" and that the number of examples of Anfal in the books of jurists and even in the narrations It does not happen this is because the existing evidence about Anfal has not been limited to instances of Anfal, but has an allegorical aspect and is not definitive and consensus, and it is the responsibility of the owner to determine the instances according to time, place, questioner and social need. The Holy Quran (Anfal/ 1) is the owner of Anfal of God and the Holy Prophet (PBUH) and after the death of the Holy Prophet (PBUH) according to the narrations, he holds the position of Imamate and leadership.

Due to its predominantly arid and water-deficient climate, Iran faces the challenge of dehydration. The rate of exploitation and consumption of water resources plays some role. Iranian civil law, which is the first law governing the processes of water resources exploitation, inspired by Shi’i  law, has based its relevant rules on theories such as absolute ownership of land, priority, privacy, and acquisition. The theoretical bases of the legal system of water resources management is thus based on private property, which along with the development of new technologies of drilling and exploitation has led to uncontrolled consumption of water resources. Therefore, the revision of these theoretical foundations is necessary in order to limit and regulate the exploitation of water resources. The first theory listed above, absolute ownership of land,  crystallized in Article 96 of the Civil Code, holds that whoever owns a piece of land has the absolute ownership of the water resources under it and can use them however he wishes without any restrictions. Apart from giving rise to disputes among, A second theory, the right of precedence, regulates the use of  water resources based on the date of first discovery and exploitation, which is an implication of the precedence rule in Shi’i law according to which prearrangements for reclamation of resources is a basis for priority in possession. . A third theory, territory of land (harim), is another basis granting the owner of a piece of land  surrounding a surface water source such as a river or lake the right to own and exploit these water resources. Accordingly, the ownership of water is a function of the land ownership, and there is no right to transfer the ownership of water, independent of the adjacent lands. Some jurists in these cases have relied on the rule ‘Al-Aqrab fa al-Aqrab’ (‘Who is closer takes priority’), based on the fact that whoeveris closer to the water stream, is superior to others, and Article 156 of the Civil Code has been influenced by this theory. But the theory of attainment,which has more supporters in Shi’i law, is based on the possession of water., According to this everyone owns any amount of water that he or she obtained through the possession and branching of surface water or digging wells and aqueducts. Article 149 of the Civil Code regarding the possibility of acquiring surface water and Article 160 of the same Code governing the digging and acquisition of wells and aqueducts have been taken from this theory.  These theories, which have led to the private ownership and management of water resources, have led to the development of mechanized methods of exploitation and, in turn, to the destruction of water resources. Articles of civil law and other regulations that are influenced by the aforementioned theories, on the one hand, and a tendency towards a state-centered view of public ownership, on the other, as in the Law of Equitable Distribution of Water, which recognizes the government as the owner of water, by applying proprietary behaviors, makes it an instrument for its economic and social policies, has permitted the unwarranted exploitation and has exacerbated the water crisis. Therefore, based on the environmental needs and the international trends viewing water as a national asset belonging to future generations, this article seeks  a theory that can be based on environmental, jurisprudential and legal principles and provides grounds for  revising laws and regulations governing the ownership and management of water resources, in particular Articles 149 to 160 of the Civil Code, which make water a common property that is open to free acquisition and private ownership.  Accordingly, Article 1 of the Law of Equitable Distribution of Water, enacted in 1982, which is influenced by Article 45 of the Iranian Constitution, has a great potential to change the approach to the ownership of water, based on the concept of public trust, private ownership to one based on the concept of trust. The article relies on the explicit use of the word trust in the Law to lead to more effective policies and regulations in the protection of water resources and in the issuance of licenses for its exploitation, and to prevent unrelenting competition in the consumption of this common resource and uncontrolled harvesting and drastic reduction ofthe country's water reservoirs. This article uses an analytical and descriptive research. Relying on library resources it studies different perspectives in order to answer the question what is the basis of the right to use water resources in the jurisprudential andlegal system of Iran and which theoretical bases can be selected for it. to ensure protection and preservation of water resources. It first suggests and examines various theories, and then seeks to formulate, under the final theory which is based on the concept of public trust, a view in accordance with environmental conditions and water resources crisis based on Islamic legal principles. By amending existing laws and regulations, water can be used as a trust in the hands of the government in the public interest.

There are special rules in Islamic jurisprudence for natural resources such as grazing lands, pastures, and forests. To study about ownership of these God-given riches is one of the important jurisprudential issues about forests and pastures, based on Imamiyyah and Hanafi jurisprudence. The main purposes of this article are consolidation and explanation of the principles and ideas of Imamiyyah and Hanafi jurists about foresaid subject. As a result, the reader becomes familiar with the views and opinions of jurists of both religions and their similar and different attitudes through a comparative study. To achieve this goal, the ownership of pastures and forests have been discussed in regard to to the Imamiyyah school from the era of the Holy Prophet (PBUH) and the Imams (AS), and also the era of absence. In addition to Imamiyyah school, Hafani school of thought has been studied from the era of the Holy Prophet (PBUH) until now. This research by a descriptive, analytical and comparative method shows that in Imamiyyah jurisprudence, pastures and forests are properties of Islamic ruler and governer and as a part of Anf'al, and in Hanafi jurisprudence it is considered as is public's property and who possesses them firstly will be their owner.

Separating "Anfal" from other examples of public property and as a result, making difference in the rules governing these two (duality theory) and the competing theory that believes in unity of all instances of public property and consequently the unity of the governing rules (oneness theory), has not been limited to a jurisprudential dispute at the theoretical level and has had numerous practical effects. The issue under consideration is, which one is more similar with foundations of Iranian basic law and dynamic Ijtihad methods? Research outcome which has been done in a practical way is that «the theory of public property dichotomy» practically leads to dichotomy and diversity in legislative, financial, taxable, organizational structures and these results don't fit «progressive Velayate Faghih system as an institution based on order and discipline», «the philosophy of the Constitution and drawing the legitimized structures in it», «dynamic Ijtihad methods» and «legal State standards».

The ownership and its decline in civil law and Imamiyya jurisprudence are based on specific means. In this context, civil law in Rule 140 states four reasons for ownership which they are also the methods of property transfer. On the other hand, respect for private property of individuals has always been subject to the legislator's attention and has formed the foundation of many laws on legal and criminal issues.  In this article, the author seeks to analyze the status of lands that have a special owner and squatter, but the land has been underwater due to the coming forth of sea water, lakes or rivers, and it is not possible to determine the situation of the former and current state. The main questions that can be discussed in this field are whether this condition causes the deterioration of land ownership? Do people still own those properties? For example, can they build buildings or use other uses with up-to-day equipment on seawater in their ownership limits? Or is private property rescinded and, in accordance with Principle 45 of the Constitution, it is a public property? And in the recent assumption, if the sea water returns later, can individuals claim ownership based on their former ownership? Therefore, if the sea moves forward in the coastal area, so that some land and houses of some people are under water, in the conflict between private property and public interests, the protection of public property will arise.

National lands and natural resources are among the public property and belong to all citizens, so it is worthwhile to pay more attention to the public interest and the enjoyment of all. Crimes against national lands and natural resources are an old wound and a pain of erosion that has deepened and widened, especially over the last two decades, in a way that has found an organized way and formed a network of violations. Given the importance of Anfal and the emphasis on Article 45 of the Constitution on the protection of public property, we have seen the enactment of various laws and regulations to prevent such crimes, but the policy of setting multiple laws and enforcing coercive punishments for reasons such as improper interaction. Relevant organizations, non-implementation of the cadastral plan, dispersal of laws, tolerance in the execution of punishments, lack of information of the State Property and Deeds Registration Organization and weakness in expertise and specialization in practice have not been successful. In this regard, and based on preventive criminological considerations and considering the problems facing criminal measures.

Mines are one of the most important and effective factors in the prosperity and sustainability of the economy in various aspects such as the supply of raw materials for various industries, energy production and employment.  Recognition of mines, both thematically and in terms of judgments, plays an important role in the community's reference to economic activity in mining, the exploration of mines, and the impact of mines on society's economy. For this reason, conducting research in order to know the subject and the rules of mining is very necessary. The present study has been conducted on the subject titled "nature and ownership of mines in Imami jurisprudence" to achieve this important end. This research has been carried out for developmental-applied purposes and with descriptive-analytical-comparative research method and has achieved the following results Second, the mines on the lands are the property of Imam (as), and the mines on public lands are permissible for all people, while the mines on the private property belong to the owner of the land. As for the mines which are conventionally deep down are permissible for all people, but the mines which are unconventionally deep in the land are also the property of the Imam (as).

The Article 45 of the Constitution, in the position of reviving the macro and systematic attitude towards the public wealth of the society and by emphasizing on the jurisprudential teachings of the Imami religion, has provided the public wealth and its examples to the Islamic state. The present study, using library studies and adopting an analytical-descriptive approach, in the position of recognizing the concept of these properties, has reached the conclusion that, contrary to the popular belief, "public wealth" is not merely "Anfal". The properties mentioned in this Article fall into three general categories: "Anfal", "Mobahat" and "User-centric public properties"."Anfal" are the properties belonging to the legal entity of the state and the nature of the state's relationship with them is the relationship of ownership of a legal entity with its properties within its jurisdiction. "Mobahat" are the properties belonging to no particular person and anyone (whether government or other natural or legal persons) can own and exploit them, although the state has the power to impose restrictions on their exploitation. "User-centric public properties" are also those not owned by the legal entity of the Islamic state like Anfal, nor it is possible for individuals to own them, as Mobahat. The administration of these properties, which are permanently allocated for a general or non-restricted purpose, is in the possession of the Islamic state, and their ownership belongs to the legal personality of these properties.

In order to prioritize the Anfal analysis order for the Shiites or to observe environmental regulations and which is superior to the other, the nature, generalizability and effects of both judgments, namely, the Anfal analysis and the necessity of environmental protection, must be taken into consideration, on the other hand, the right having a healthy environment is one example of solidarity rights that includes the human right of the third generation. On the other hand, Anfal and its ownership and distribution of natural resources are a matter of great importance in protecting the healthy environment. However, is it possible to capture Anfal for Shiites? There is a controversy between jurists, but today, protecting the healthy environment has crossed the borders and has become a global public. As in the third generation of human rights, it is one of its main examples. Therefore, in addition to domestic laws and legal rules such as the rule of law that impose a kind of anfal analysis, today's international regulations will limit the use of anfals by humans in order to achieve a healthy environment for humankind.