New research for resolving the conflict between Article 38 Of The Civil Code with the laws restricting private property

Abstract

According to article 38 of the Civil Code of the Islamic Republic of Iran, the owner has the right to do anything with his property, including land and space; But nowadays, private property rights have been limited by the legislature in many cases for expediency’s observation. This indicates the conflict between article 38 C.C. and the current legislative approach. Therefore, it is necessary to find a way to resolve this conflict. This descriptive-analytical article shows that the application of Article 38 C.C. should be limited according to time, place & the necessity of responding to the growing needs of the society by the principle of no harm and the respecting public interest; However, the observance of justice requires considering the strong jurisprudential and legal evidences of respecting the individuals’ private property on everything that is in a their personal property, as well as the conventional space of that property, and to ensure the opinion of the Guardian Council - which considered the prohibition of possession of valuables items from private property in contrary to Sharia standards – and by referring to articles 9 & 10 of Preservation of National Monuments code which approved on 08 / 12 / 1309 & considering a share for the land’s owner & paying damages, all sights must be observed & the land’s owner must be satisfied much as possible, in order to prevent the destruction of other people's property . Also, because of various laws which exclude article 38 C.C., it seems that this article needs huge changes.

Keywords

• article 38 of civil code
• application of property
• restriction of ownership
• private property
• subject laws