3.3 所有权的含义
3.3 The Meaning of Ownership
个人所有权是个人依法享有的一项权利,即个人有权占有动产和不动产。这项权利受立法和文化的保护与界定。所有权除了是由沙里亚(Shar'a)确定的具有货币(财务)价值的利益之外,还表明个人对其所拥有的财物拥有支配权。他可以像支配自己的自主行为那样处置这些财物。因此,所有权是在真主(SWT)的命令与禁令的范围之内界定的。
The right of individual ownership is a legal right of the individual who has the right to possess movable and immovable assets. This right is protected and determined by legislation and culturing. The right of ownership, besides being an interest of monetary (financial) value determined by Shar’a, indicates that the individual has control over what He possesses. He may dispose of it in the same way that He has control over his optional actions. The right of ownership is thus determined within the limits of the commands and prohibitions of Allah (swt).
所有权的界定,明显体现在用以确定产权归属的合法占有方式之中,也体现在哪些情形可以适用刑罚、哪些不可适用的问题上。例如盗窃的定义、抢劫的定义以及非法夺取的定义。这种界定也体现在所有权的处分权利上:有些处分情形是被允许的,有些则是被禁止的;同时体现在对这些情形的界定以及其具体事例的表现之中。伊斯兰确定所有权时,并不以数量为依据,而是以取得的方式为依据,具体体现在以下几个方面:
The determination of ownership is evident in the legal means of possession by which the right of ownership is decided, and in the cases to which punishments may or may not be applicable. Examples of this are the definition of theft, the definition of robbery and the definition of illegal seizure. This determination is also evident in the right of disposal of the ownership, where some cases of disposal are allowed, and some other cases are prohibited, and in the definition of these cases and the manifestation of their incidents. When Islam determines ownership it does not determine it by quantity but rather by its manner as shown in the following matters:
它决定的是财产的所有权归属,着眼于占有和投资财产的方式,而不是所拥有财产的数量。
1. It determined ownership in respect of the means of possession and investing of the property, rather than in the amount of the property owned.
2. 它决定了处理的方式。
2. It determined the manner of disposal.
3. 哈拉吉土地的产权归国家所有,而非个人所有这一事实。
3. The fact that the Kharaji land title is owned by the State, not the individuals.
4. 个人财产在某些情况下被强制转为公共财产的情形。
4. The fact that individual property forcibly becomes a public property in certain cases.
5. 国家向那些拥有的财产不足以满足其需要的人,发放其认为必要的款项。
5. The State grants amounts deemed necessary to those whose means of ownership are insufficient to cater for their needs.
由于要确保个人财产的合法所有权,就必然需要为其所拥有之物设立明确的权威。立法使保障个人的所有权成为国家的责任。它确保对所有权的尊重、对其的保护以及不侵犯。立法设有惩戒措施,即刑罚,用以惩处侵犯此项权利的人,无论是通过偷窃、抢劫,还是以其他任何方式。在教化过程中,应着重约束人们的欲望,使其不去觊觎自己无权拥有、而属于他人的东西。因此,唯一合法(哈拉姆之外的合法,即 Halal)的财产,是落在所有权含义之内的财产;而非法(Haram)的财产则不被视为所有权,也不属于所有权的含义范围。
It is inevitable that in order to ensure legal rights of ownership of individual property, a defined authority for Him over what He owns should exist. Legislation makes the securing of the individuals right of ownership a duty upon the State. It ensures the respect of ownership, its protection and non-aggression against it. Legislation incorporates deterrents in the form of punishments, which are enforced upon those who infringe on this right, whether by stealing, robbery, or in any other manner. During culturing, emphasis is placed to curtail the desires of people from longing for that which they have no right to own, and that which is owned by others. So the only legal (Halal) property is that which falls within the meaning of ownership. And the illegal (Haram) property is not considered ownership, nor does it fall within the meaning of ownership.