مطالعه ابعاد مالکیت اموال فرهنگی-تاریخی
آرشیو
چکیده
ام روزه ح ق مالکی ت، ح ق مطلق ی نب وده و قانون گ ذار می توان د بن ا ب ه علل ی، محدودیت های ی را ب ر ح ق مالکی ت اعم ال نمای د؛ گرچه در قواعد عمومی حقوق مدنی، باور اولیه بر آن است که مالکیت، اصل خدشه ناپذیر و مسلّم حقوقی است، بر این مبنا، بنا به جهات و اسباب مختلف، محدودیت هایی وارد می شود و گاه، این اصل، به طورکلی مورد انکار قانون گذار واقع می گردد. قواعد میراث فرهنگی ازجمله اسباب محدودیت و سلب اصل مالکیت محسوب می شود. پرسش اصلی این مقاله این است که، ابعاد مالکیت اموال فرهنگی-تاریخی در قوانین و مقررات ایران چیست؟ و حق مالکیت معنوی و مادی مالک آثار تاریخی-فرهنگی چه جایگاهی در قوانین و نهادهای حقوقی دارد؟ گردآوری اطلاعات به شیوه اسنادی و کتابخانه ای صورت گرفته و روش پژوهش، توصیفی-تحلیلی است؛ براین اساس، پژوهش حاضر ازطریق مراجعه به قوانین و مصوبات موجود و کتب و مقالات در این زمینه سامان یافته است. به نظر می رسد که در برخی شرایط می توان محدودیتی نسبت به بعضی از اموال قائل شد که از آن جمله، میراث فرهنگی است که می تواند در این شمول قرار گیرد. این قوانین در بسیاری از موارد، تضعیف مالکیت های خصوصی را درپی دارد؛ ازطرفی شریعت اسلام با توجه به اهتمام خاصی که به مالکیت خصوصی دارد، براساس احکام اولیه، مالکیت یا تملک آثار تاریخی-فرهنگی را هم چون سایر اموال، نه تنها معتبر دانسته، بلکه تخطی از آن را خلاف قوانین شرع به شمار می آورد. قوانین فعلی به دلیل عدم به روز رسانی جامع و نیز فقدان ظرفیت های اجرائی برای جلوگیری از تعارض منافع عمومی و خصوصی در چارچوب صحیح قانونی و شرعی، کارکرد خود را از دست داده است.The Study of Features Cultural-Historical Properties Possession
The right of possession is not an absolute one today and the lawmaker has the power to limit the possession right according to several reasons. It is a general thought in the public regulations of the civil law that the possession is a legal absolute right. Accordingly, and due to different tools, the limitation is fulfilled by the lawmaker and this right is completely ignored. The rules of cultural heritage are of the tools to make the limitation and to devest possession. The main question of this article is that what are features cultural-historical properties possession in Iran and what are the position of intellectual and material property right of the of the historical-cultural owner of the properties? It seems that there could be limitations in some situations to some cultural heritage properties. The mentioned laws could weaken the private ownership in some cases. Additionally, the private ownership is respected in Islam and according to the first verdicts the ownership of cultural-historical properties are authentic its ignorance is assumed wrong. The today law are not upgraded and its fulfilment is ignored in order not to be against the religious and legal frameworks.
Keywords: Possession, Cultural Heritage, Cultural-Historical Properties, Movable Properties.
Introduction
Cultural heritage includes series of valuable movable and immovable properties from the past. A significant part of the properties is owned privately or is inherited or discovered by them. Now-a-days it is the aim of the government to protect these properties with cultural-historical values. As the verification of their ownership in the laws of cultural heritage are not noticeable by the lawmakers it is significant to study the different aspects and illuminate the ownership situation of these properties as the aim of the Authors in this article.
The Aim and Necessity of this Research
The lawmaking process for cultural heritage in Iran started in 1930 as the law of national properties protection by the national consulate of the parliament of Pahlavi I and under the direction of Andre Godar, the French architect and archaeologist, of the antiques center. Several paragraphs have been added or removed from the mentioned law since then. It seems that the law on cultural heritage and cultural-historical properties are not efficient as the traffic of the properties are increasing and the national treasures are looted. Therefore, it seems that the study in this field and the different aspects of the protection and conservation of cultural heritage are essential in the present situation.
The primary and secondary question and hypothesis: What are the features of cultural-historical properties in the laws and regulations of Iran? What is the position of the tangible and intangible cultural-historical properties ownership in the legal and administrative sections?
Research Method
The research method is according to the library study of the present laws and decisions in the field. Cultural-historical properties ownership in the laws and regulations
The ownership and its features are as above-mentioned. The ownership is significant in the present society as the method of personal economic relationship adjustment. Respecting one’s control over the objects gives him authority to protect his material benefits. This ownership is fair, defensible, and even sacred. The respect for it is as the blood of human and even more than Kaaba in Islam. The constitution of Islamic Republic of Iran, paragraph 22, it is mentioned as following: "The property of the persons is safe from assault unless the law approves" and in paragraph 47 it is mentioned: "The legitimate property is respected and the law designates its rules". Some lawyers describe the respect for personal property as the fundamental respected laws and its soul (Katouzyan, 2010: 133).
In paragraph 3 about the protection of national property, approved at 1930, two sorts of properties are mentioned; the properties without personal owners and the properties with personal owners. These tangible and intangible properties could be faced according to paragraphs 3 and 4. Additionally, the personal properties are mentioned in the law of land and construction purchasing for the protection of historical and ancient properties, approved at October 1968, paragraph 1. The properties with or without owners will be discussed here (Khodadadi Larzjan, 2016: 5).
Obviously, thousands of properties with personal owners cannot be only safeguarded by law that is approved 80 years ago and is enforced unilaterally. It means if the owners of the historical properties know that they are not alone on protection their properties and this might improves their social position and their benefits they will not take those properties abroad.
In another hand the inscribing of a property in the national list destructs their property right for the personal property owners. Therefore, the destruction of the properties accelerated according to the more nationally inscribed process in 1990s. The owners destructed the buildings as they knew they will not be able to sell, be benefited or destruct their properties after inscribing them in the national list of cultural heritage. The owners whose properties were inscribed previously were shocked for some times and due to the consultation of the lawyers found out the legal solution and complained in Court of Administrative Justice.
Conclusion
The attention and support of the government of the legal cultural-historical owners’ property rights and checking property conflicts and also the separation of personal and public ownable properties (with respect to the governmental sovereign rights) could be one of the best methods to encourage people to identify and protect the mentioned properties and preventing them from being exported illegally.
According to paragraph 4 of the constitution, all the laws should be congruous with the religious rights and a rules should be religiously interpreted accordingly. As, the property is of the legal rules and respected by the sacred lawgiver in Islam, the lawmaker could not regard the property as a public benefit tool. Ignoring the property right could divest thee economic drafty and help the export of the property from the society and to harm the public and personal benefits. Regarding the properties as not being absolute and allowing the government to threating the personal property right leads to disrespecting the property right. Therefore, there is not a common method for confiscating cultural-historical properties and the discovered ones and also a right for the finder- with respect to the situation of the discovery process and the place- although very little. This could be either usurpation and forbidden by the religion or could cause more traffic and secretly keeping the properties and eventually destruction the national property. The conflict of the public and personal benefits of historical buildings and also the lack of a serious, functional and legal solution could lead to the destruction of the constructions through the years and the blame of the future.
Therefore, there is an urgent need for a religious, critical and courageous review of the law with respect to the constitution and international laws in order to conclude public and personal property limitation and identifying the features of property to respect the owners’ right and prevent the traffic of cultural-historical properties.
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