A Comparative Study of Obtaining Illegal Property and Illegal Obtaining of the Property in Islamic and Western Law

In the Iranian legal system both terms of obtaining illegal property and illegal obtaining of the property are used. Since the adoption of the Act on Aggravating the Punishment of the Perpetrators of Bribery, Embezzlement and Fraud (hereinafter AAPPBEF) in 1988, utilization of the first phrase has become more common. This is due to the fact that the Legislator, in particular in article 2 of the AAPPBEF, has employed the phrase "illegitimate method of obtaining". Undoubtedly, it refers to illegal obtaining of the property. Presumably, this means that the property is legitimate, but the way through which it is obtained is illegitimate. What is the criterion for illegitimacy? Does it mean that if the way to obtain a property is legitimate, the act would not be regarded as a crime? Does it mean that if article 2 refers to the way of obtaining the property, it is possible to obtain an illegitimate property by means of a legal way and the act is not of a criminal nature? It seems that the Legislator considers the case from two viewpoints. First, the illegitimate property may be obtained through a legitimate or an illegitimate way. Second, the legitimate property may be obtained legitimately or illegitimately. Under legal systems of Germany, UK and Us, the aforementioned crimes do not exist and the related acts are criminalized as theft or fraud. In Islamic law, the unlawful ownership has been discussed. Although there is a difference in describing the act between Islamic law and western law, substantially both of them acknowledge the prohibition of obtaining property through illegitimate and illegal means. The present paper, using an analytical method, considers the different aspects of the case.