Document Type : Original Article
Highlights
The right to property is one of the best rights that a citizen has. Ownership is mastery over a property. Among the issues of ownership, the ownership of oil resources is ranked first. Article 45 of the Constitution as well as oil laws have emphasized the nation's ownership of resources and have placed them at the disposal of the jurist as an anfal. But the jurist has enforced this duty and the government, as the representative of the people, is allowed to manage and exploit it. Public ownership of oil and gas resources and the belonging of this wealth to the public of a country has led to exclusive legal works. The principle of national sovereignty over natural resources is one of the effects of public ownership of oil and gas natural resources.
The scope of the current research is to examine the phenomenology of the private and public ownership system in oil and gas mines with an emphasis on jurisprudence and legal foundations about this issue. The main research question is to investigate the type of government ownership of oil and gas mines and analyze the relationship between government ownership and these cases. Therefore, while processing the background of the research to the most important systematic origins of ownership in oil and gas mines and explaining the context of state and public ownership, prioritizing ownership over private ownership in the intrinsic, relative and governmental areas, it deals with the phenomenon of the mentioned system in these capitals.
Despite the difference in economic approaches to the issue of ownership, talking about types of ownership is not exclusive to a particular economic and legal system, and the existence of public or private ownership in some systems cannot be denied absolutely. What causes problems for the interested groups in various economic and legal systems is the ambiguity and interference in the related legal titles, especially if these titles have similarities on the one hand and differences on the other hand. to be The concept of public property is one of these examples that it is necessary to outline its scope in Iran's legal system with regard to other similar concepts such as "state property" and "property of state companies". After the nationalization of Iran's oil industry and even before that, nationalization was considered almost synonymous with statehood in the minds of statesmen and other sections of society. In the meantime, jurists, mostly under titles such as property and ownership, and sometimes during the description and detail of the civil law, administrative law issues and when examining public property such as oil, have expressed their meaning of public and government property and other similar concepts.
In the modern period, the theory of maintaining public property by the government is a kind of reaction to the political and legal events of this era. From a political point of view, the liberals were opposed to the government's ownership of these properties due to the bitter experience of the period of monarchical systems in which the king misused public property. On the other hand, the 19th century writers' distrust of ideas threatening liberalism, such as Marxism and socialism, which opposed private property, led to a negative reaction to the concept of public property. The theories against public property are different in their bases, but they were united in this issue that the administration has the role of a "gendarme and roadman" and in fact, the government and other persons do not have the ability to own public property and are only allowed to maintain it. they are.
In this context, some jurists have considered the sovereignty of the government as the basis of the maintenance theory. This statement is clearly stated in some laws such as the approved oil law of 1366 with the amendments of 1390. In the 17th paragraph of Article 1 of this law, there are some things that are part of the governance affairs of the oil industry: "Exercise of the right of ownership and public ownership by the Islamic Republic of Iran on oil resources and policy making, planning, guidance and supervision and supreme supervision of executive actions in Oil Industry." It means that oil is a public property and belongs to the national public property. Since the government has sovereignty over the entire land, it will also have sovereignty over this property and administer it by its authority. Article 2 of this law specifies this issue: "All oil resources are part of Anfal and public wealth. It is the responsibility of the Ministry of Oil to exercise the right of ownership and public ownership over the aforementioned resources on behalf of the Islamic Government. This article explains the article 45 of the constitution regarding oil as one of the mines, and partially, the responsible authority in the oil field of the Islamic government has been introduced as the Ministry of Oil.
From the point of view of jurisprudence, mines are considered part of Anfal, which are at the disposal of the Islamic government. Oil and gas mines are also part of these cases. According to Article 45 of the Constitution, the ownership of oil and gas mines is in the hands of the government, and despite the pre-Islamic revolution in Iran's legal system of accepting private ownership, today oil and gas mines are public property, and the legal system The ruler over them is subject to public law. Due to the lack of a clear and precise definition of public and government property and a precise separation between them, the government's ownership of oil and gas mines is of the type of public property, and these mines are among the public property that the government exercises the right of sovereignty, management and interest. He puts the removal of these mines on his agenda.
