امکان سنجی مالیت دارایی های دیجیتال غیر مثلی در تراز فقه و حقوق ایران (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
شناسایی مال در فقه امامیه و به تبع آن در حقوق ایران، مشروط به برخورداری از ارزش مبادله ای، مشروعیت، تصرف پذیری و انتقال پذیری است. توکن های دیجیتال غیرمثلی که تحول عظیمی را در عرصه حقوق مالکیت معنوی و اشیای مجازی ایجاد کرده است، از دیدگاه عرف مال شناخته می شود؛ اما صرف شناسایی عرفی مالیت آن، سبب اعتبار مالیت از دیدگاه فقهی و حقوقی نیست و باید دیگر شرایط شناسایی مال احراز شود. این پژوهش با روش توصیفی تحلیلی و با استفاده از ابزار کتابخانه و اینترنت، به امکان سنجی تطبیق شرایط مالیت در حقوق ایران و فقه امامیه بر توکن های دیجیتال غیرمثلی می پردازد. هدف این پژوهش احراز مالیت این نوع از توکن هاست تا بتوان حاکمیت قواعد مربوط به اموال را از قبیل منقول یا غیرمنقول بودن، قابلیت توقیف و... در رابطه با این موضوع در پژوهش های آینده بررسی و احراز کرد. نتایج پژوهش، حاکی از انطباق معیارهای چهارگانه شناسایی مالکیت که از جمع بندی نظرات فقیهان امامیه و عرف اقتصاددانان به دست آمده است بر توکن های دیجیتال غیرمثلی است؛ بنابراین چنین توکن هایی در فضای مجازی، شرایط مالیت دارند و در زمره دارایی ها قرار خواهند گرفت و آثار حقوقی مدنی و تجاری بر آن ها مترتب می شود.Feasibility of Taxation of Non-Fungible Digital Assets (NFT) in Iranian Jurisprudence and Law
Identification of property in Imami jurisprudence and, accordingly, in Iranian law, is conditional on having exchange value, legitimacy, possession and transferability. Unusual digital tokens that have created a huge transformation in the field of intellectual property rights and virtual objects are known from the perspective of common property; However, the mere customary identification of its property is not the reason for the validity of the property from a jurisprudential and legal point of view, and other conditions for property identification must be met. This research, with a descriptive and analytical method and using library and internet tools, deals with the feasibility of applying the taxation conditions in Iranian law and Imami jurisprudence to Non-Fungible Token. related to property, such as whether it is movable or immovable, the ability to seize it, etc. in relation to this issue in future research. The results of the research indicate the conformity of the four criteria for identification of ownership obtained from the summation of the opinions of Imamiyyah jurists and the custom of economists on digital tokens. Therefore, such tokens in virtual space have financial conditions and will be classified as assets, and civil and commercial legal effects will follow them. Keywords : Non Fungible Token, Exchange Value, Legitimacy, Possession, Transferability 1. Introduction The world has entered a new era since the beginning of the 1980s. Understanding what it is and why it is and understanding the necessary planning to cope with it requires the use of new concepts and theories. Virtual space, as a product of new information and communication technology, has a decisive role in this. This real space, which is an extension of human society in the context of information and communication technology, is an infinite space that organizes all kinds of interactions through information and communication in a digital context. In this space, regardless of the limitation caused by physical geography, extensive communication between persons with each other, persons with objects and objects with each other is provided through computers and in a digital process. One of the latest phenomena of organizing economic and non-economic interactions in the virtual space is called blockchain, which has created a huge evolution in terms of security, speed and transparency of data. Blockchain technology has brought many derivatives to humanity, one of the most prominent of which is Non-Federal Digital Tokens (NFT). These tokens have various applications in the field of economy, trade, culture, politics and other social and interactive affairs of humans with each other, humans with objects and objects with each other. Although today, art, business, and music are at the forefront of using this tool, and the buying and selling of things such as works of art, digital books, and in fact anything that can be converted into this type of token has become common. The basic question regarding these tokens is that according to these economic functions, from the perspective of Imami jurisprudence and according to Iranian law, do these tokens have the conditions to be recognized as property so that it can be assumed that they can be owned and have legal effects on them? or that if buying and selling takes place, it is only for the common practice and basically these tokens do not have juridical value. The purpose of this research is to investigate the conformity of property identification criteria in Imamiyyah jurisprudence and Iranian law on non-homologous digital tokens. Considering that previous researches have generally dealt with finance in the cyber space or paid attention to cryptocurrencies in general, the present research has this innovation that it specifically deals with the finance of non-traditional digital tokens, which until the time of writing this article, in Persian sources, there is no research in this field. The context is not visible. 2. Methodology The method used for this research is descriptive-analytical. In this article, two categories of sources are used: the first category includes authentic books of Imami jurisprudence, laws related to property rights in Iran's legal system, and authentic articles that serve as a reference for obtaining the nature of property and the criteria required for token comparison. Non-homosexual digital tokens are considered in Imamiya and Iranian jurisprudence, and the second category includes valid educational courses, international authoritative articles and sites that are used to obtain the required information related to non-homosexual digital tokens. Non-Fungible Token in Iran, like in other countries, is a new phenomenon and does not have a diverse and extensive research history. in other words, this article is the first research in Iran's legal system that comments on the property of these virtual objects. It should be noted that some limited research related to the rights of Non-Fungible Token in Iran has been done in the form of a thesis in the field of intellectual and intellectual property rights, such as the role of Non-Fungible Token in supporting intellectual property rights at the University of Tehran. 3. Results and Discussion In order to identify any issue in terms of whether it is tax or not, it is necessary to determine the classification of the issue, because each classification of property requires its own criteria for taxation. In Iranian law, property is divided into the same category as tangible property and benefits. A benefit that is included in the category of property can be manifested in two forms, object or service. As a result, in general, regardless of whether the subject of property is object or benefit, property can be considered in this division according to its different nature, object or service. Any non-physical activity that is transferred from its provider to the applicant is called a service, the characteristics of services include intangibility, non-storability, uniqueness, customer participation in services, and inseparability. In contrast to services, Non-Fungible Token have the ability to be stored in digital wallets, they are also independent of their creator after production and are portable in the virtual space through transfer on the blockchain platform, as a result, digital tokens are not considered services in this division and they should be put it in the category of tangible property . The basis for examining the wealth criteria of tangible property can be pure Imamiyyah jurisprudence or special economic custom, which includes the opinions of economists. In Imamiyyah jurisprudence, there are three views on the property of the subjects, according to the first point of view, the mere presence of some kind of halal benefit is sufficient to consider the subject as property, but the criticism that can be made to this opinion is that there are some subjects that in the perspective of Iranian law And custom has value, but their benefit is not a generic; Like the photo of the father of the family, which has no benefit in generic standard, while it is very important for his family, and each member of the family may pay a lot of money to the owner to get this photo. The second view considers having a legitimate interest to be enough to be property, but this opinion is also incomplete; Because it is true that the condition of having a legitimate interest is comprehensive; But after examining more opinions, we will realize that the mere benefit and legitimacy does not make the title of property on an issue true. The third and final view in Imamiyyah jurisprudence also considers rational benefit as the criterion for property, which, like the previous views, faces the problem of being incomplete; Because there are many examples in Iran that may have a small rational benefit; However, from the perspective of Imami jurisprudence, they should not be considered property; Like pork, which is not worth eating due to impurity in Iranian law. The opinions of economists are also incomplete just like Imamiyyah jurisprudence and cannot provide comprehensive criteria and obstacles to identify tangible property. The first opinion is the theory of value and utility, which was presented by some thinkers in the 19th century. According to this theory, like the third opinion of the Imami jurists, any subject that has a rational benefit is considered property, while the mere possession of a rational benefit is not considered property and it is not under the ownership of individuals, for example, consider air, it is true that it has the rational benefit of life for humans, but it cannot be considered as property and considered as the property of limited individuals. The second opinion in the specific economic custom is the theory of value resulting from the cost of production and labor, which was presented by Adam Smith, so everything that is created based on human labor has value, but this opinion is also incomplete. Some examples of property, such as horses, are without value. The fact that a person does something on them, they are considered independently from the perspective of custom and property law. In general, according to the fact that each of the examined opinions is incomplete, the criteria of tangible property should be found in the examination of the relationship between people and property, with a little thought in this connection, four criteria of having an exchange value that causes demand, having juridical and legal legitimacy, ability to possess and transferability can be declared as the criteria of tangible property and concluded that the criteria of tangible property in Iranian law is a combination of Imamiyyah jurists and the special custom of economists. on the same basis, Iranian law has established rules in paragraph 3 of article 190 and articles 215, 240, 348, 422, 637, 754, 773 that imply compliance with these criteria for tangible property. in the end, to check the value of digital tokens, it is necessary to verify the existence of the mentioned criteria in this type of virtual object. Non-fungible tokens due to multiple and unique applications such as creating wealth through selling works of art and playing games and creating virtual property security through providing intellectual and intellectual property rights qualify for the first criterion, i.e. having an exchange value that creates demand. In relation to the second criterion, in Imami jurisprudence as the basis of Iranian law, there are principles that can be used to leave it in case of doubt, in relation to non-fungible tokens due to the lack of a source that indicates sanctity or non-sanctity. There is a doubt in legal and jurisprudential legitimacy that by using the principle of falsity and the principle of authenticity, it is possible to judge the legitimacy of non-fungible tokens, so non-sexual digital tokens have juridical and legal legitimacy as well. Captivability is also subject to the ability to be available and assigned, which non-fungible tokens are also eligible for this criterion because they have the ability to be stored in digital wallets. In order to verify transferability as the fourth criterion, it should be noted that one of the reasons that a person reproduces and offers a work in the form of non-fungible tokens is because it is possible to maintain the intellectual property rights related to his work by selling these works and earn income, the premise of making money in this way is the transfer of non-fungible tokens to the buyer of the work, which in practice is done through the payment of the blockchain network fee and transfer to the person's wallet, as a result, digital tokens are also transferable. 4. Conclusions and Future Research Finally, according to the comparisons made and the arguments expressed, it can be claimed that according to Imami jurisprudence and Iranian law, these tokens are considered property and are included in the property category. Considering the definition of property for non-fungible tokens can be the introduction of new and important research that is suggested by the author of the following topics: The issue of the legitimacy of non-fungible tokens has been examined in this article only using practical principles to solve the initial confusion and it is suggested that experts in Islamic sciences deal with this aspect in a more specialized manner. By discovering the value of these tokens, as mentioned in the conclusion, new legal issues are created that can be investigated in this direction. The topics that can be suggested for research are: 1- matching transactions based on non-representative digital assets with certain contracts, 2- the nature of creating non-representative digital assets is a contract or an event. 3- Since the value of these tokens was determined in this research, it is suggested that the legislator, by introducing a new law or amending the previous laws, consider the laws related to the value of digital tokens as illegal and establish special rules related to it. 4. The identification of these tokens as property is the reason for the authenticity of the transactions whose subject is non-ideal digital tokens (if there are other conditions for the authenticity of the transactions). Create transactions of these tokens.
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