نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق خصوصی، واحد تهران مرکزی، دانشگاه آزاد اسلامی، تهران، ایران
2 دانشیار دانشکده حقوق خصوصی، دانشگاه تربیت مدرس، تهران، ایران
3 استادیار گروه حقوق خصوصی، واحد تهران مرکزی، دانشگاه آزاد اسلامی، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Ownership of natural waterways, including rivers, natural streams and canals, is one of the most important issues of the water law of the country; therefore, in this article, the evolution of the ownership of the mentioned waterways from the beginning of the legislation until now has been studied. For this purpose the fallowing articles were studied: the Civil Code (as the main law on ownership), paragraph 6 of Article 96 of the Municipal Law (as the first law governing the ownership of urban waterways), Article 2 of the Water Law and its nationalization, as well as Article 2 of the Law on Fair Water Distribution (as Specific laws in the water sector). In this research, the legal criteria for determining the waterway bed have been criticized and the legal effects of these criteria on the ownership of lands adjacent to natural waterways have been explained. Also, in the current article, an attempt has been made to mention the evolutionary stages of the ownership of waterways' bed. Therefore, taking into account the various divisions for property, ownership of waterways with the term "natural" or "public use" should be included in the category of public property. Reviewing the legal status of this type of property in the relevant laws from the beginning of the legislation until now, it was found that the legislator does not have the same approach to the ownership of waterways. The evolution of the relevant laws indicates that the legislator had three different approaches on the ownership of this category of property. Therefore in accordance with the circumstances of the time, the adoption of the law can be classified and reviewed in three historical important periods: 1- private property of waterways, 2- government ownership, 3- Water governance that considers waterways' property as public wealth and commonalities, at the disposal of the Islamic government.
Study of the historical course of legislation showed that the Iranian legal system formed its first approach which was the protection of private property; and then gradually moved toward the governmentalization of these properties; and finally included them in the category of public property and natural resources, which are in the possession of the government.
During the period of privet property of waterways (1906-1968), the waterways' bed was occupied by adjacent land owners and exploited according to the existing conditions. The article 23 of the Civil Code (1924) related the exploitation of ownerless property (including public properties) to relevant laws which had not been well developed until that time. Moreover, the article 25 of the Civil Code has forbidden the occupation of public properties. Paragraph 6 of Article 96 of the Municipal Law indicated that the waterways' beds within the cities are considered as public property that is owned by the municipality. Besides, any civil operations within the beds of waterways in cites is subjected to the permission of the Ministry of Power. The second period started in 1968 with the Water Law and its nationalization which introduced water ways as public properties. The Coastal Land Law described the conditions of construction, inside the bed or nearby the water bodies, with technical details. The third period of water governance started in 1983 with the Law on Fair Water Distribution.
The results of this study showed that according to the current legal system of the country, the bed of natural waterways is not privately owned, and in addition the government does not own them; but the bed of waterways are among the public property and national natural resources. Although the bed of natural waterways is under the control of the government, it should be noted that this control is only to manage the use of water and protect national resources and the environment. This possession does not mean that the government owns them. Therefore, for example, the government does not have the right to sell or transfer them. Hence, the actions of the Ministry of Energy are purely administrative. The special emphasis of this article is on how to apply legal rules and standards in recognizing the bed of natural waterways and its final limit, as well as its stabilization in nature in order to protect public rights and prevent damage to adjacent landowners or limitation of their ownership
کلیدواژهها [English]
)