Volume 22, Issue 4 (2018)
CLR 2018, 22(4): 29-64 |
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Hosseini O, Issaei Tafreshi M. Redefining restitution of illegitimate assets in English & Iranian Law. CLR 2018; 22 (4) :29-64
URL: http://clr.modares.ac.ir/article-20-16391-en.html
URL: http://clr.modares.ac.ir/article-20-16391-en.html
1- PhD Student of Private law, Faculty of law, Tarbiat Modares University, Tehran, Iran.
2- Professor, Department of private Law and Criminology, Tarbiat Modares University, Tehran, Iran ,tafreshi@modares.ac.ir
2- Professor, Department of private Law and Criminology, Tarbiat Modares University, Tehran, Iran ,
Abstract: (9455 Views)
The article deals with a semantic scrutiny into the meaning of "restitution" of illegally possessed property and its relation to similar concepts.
Here "restitution" has been used in its absolute meaning, i.e. "dispossession of a person from property obtained without legitimate and legal cause", and not limited to "returning of the object to its legal owner".
Based on this, to establish the truthfulness of the concept of "restitution, there is no need for a private plaintiff to exist – contrary to whose interest such illegal possession runs, rather, the Substitute Asset is classified under the concept “restitution”. The Arabic rule "حرمت أکل مال به باطل" (meaning: prohibition of eating the wrong property) and wide scope of concept of “مال حرام” in the Islamic jurisprudence also supports this Opinion.
In British Law, according to the most recent viewpoints, in order for the "restitution" to take effect the illegal possession should not necessarily be to the detriment of the plaintiff or any other third person; rather the axial fact is that nobody’s property is expected to increase unduly.
In the Iranian and British legal texts, this meaning of restitution (dispossession of a person from illegally obtained property) has been mixed with similar concepts especially "confiscation", and has created a kind of Semantic confusion. Relying on the priority of meaning over the apparent wording, the article seeks a suggestion to this existing confusion and disparity.
Here "restitution" has been used in its absolute meaning, i.e. "dispossession of a person from property obtained without legitimate and legal cause", and not limited to "returning of the object to its legal owner".
Based on this, to establish the truthfulness of the concept of "restitution, there is no need for a private plaintiff to exist – contrary to whose interest such illegal possession runs, rather, the Substitute Asset is classified under the concept “restitution”. The Arabic rule "حرمت أکل مال به باطل" (meaning: prohibition of eating the wrong property) and wide scope of concept of “مال حرام” in the Islamic jurisprudence also supports this Opinion.
In British Law, according to the most recent viewpoints, in order for the "restitution" to take effect the illegal possession should not necessarily be to the detriment of the plaintiff or any other third person; rather the axial fact is that nobody’s property is expected to increase unduly.
In the Iranian and British legal texts, this meaning of restitution (dispossession of a person from illegally obtained property) has been mixed with similar concepts especially "confiscation", and has created a kind of Semantic confusion. Relying on the priority of meaning over the apparent wording, the article seeks a suggestion to this existing confusion and disparity.
Article Type: Original Research |
Subject:
Comparative Law
Received: 2017/12/3 | Accepted: 2021/03/8 | Published: 2019/03/15
Received: 2017/12/3 | Accepted: 2021/03/8 | Published: 2019/03/15
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