Public Law
Mohammad Reza Vijeh
Abstract
IntroductionIn order to make a decision, the administrative authority must act within the legal framework governing that decision. However, administrative acts are always susceptible to various issues, which judicial review seeks to address. These issues include incompetence, substantive violations ...
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IntroductionIn order to make a decision, the administrative authority must act within the legal framework governing that decision. However, administrative acts are always susceptible to various issues, which judicial review seeks to address. These issues include incompetence, substantive violations of the law, procedural violations of the law (such as failure to adhere to necessary procedures), transgression of the limits of authority, and abuse of authority within legal systems. Among these violations, abuse of authority is undoubtedly the most challenging. Its form and nature complicate verification, so the judicial precedent of the Court of Administrative Justice is less inclined to verify or annul administrative acts based on allegations of abuse of authority. In this respect, the present research aimed to determine whether a clear concept of abuse of authority exists in modern administrative law and to define the criteria associated with it. Literature ReviewThe literature on comparative administrative law and several articles have addressed the topic primarily from a descriptive perspective regarding this institution in various legal systems. In a rather different approach, the present study aimed to examine and critique similar concepts based on a specific understanding of abuse of authority. Furthermore, the study reviewed the relevant concepts to extract criteria for addressing abuse of authority and develop a unique theory that may differ from the corresponding concepts in private law and the concept of abuse of authority in other legal systems. This approach highlights the innovative aspect of the present inquiry. Materials and MethodsThe present study used a descriptive–analytical approach and library resources to collect and analyze the data. Results and DiscussionAn examination of the development of abuse of authority in legal doctrines and judicial precedents suggests that such a clear concept may not exist. Instead, the findings revealed that the concept of abuse of authority is often analyzed in relation to other concepts, contributing to its ambiguity. The results helped propose a comprehensive theory regarding the abuse of authority by administrative bodies, including its indicators and criteria. The first criterion is the discretionary power of the administrative authority. Abuse is particularly relevant in the context of discretionary power, as it is the administrative authority that must determine whether an administrative act serves the public interest—the decision in which the potential for abuse arises. The question also arises as to whether the malicious intent on the part of the administrative authority is a necessary condition for establishing abuse of authority. While the existence of general malice is typically assumed in cases of abuse of authority, the abuse of administrative position requires evidence of both general and specific malice, as necessary conditions to be proven. Furthermore, if the administrative authority seeks to realize interests other than public interests with malicious intent, should there also be an intention to harm public interests? There is inherently an intent to harm, as pursuing benefits that do not align with the public interest is always associated with the intention to undermine the public good. ConclusionAbuse of authority is a complex and often vague concept within administrative law. To reach a full understanding of the concept, it is insufficient to rely solely on the existing components and criteria that define abuse of authority. A comprehensive explanation must also consider closely related concepts, such as the abuse of rights in Islamic jurisprudence and Iranian private law, as well as principles like reasonableness, legality, fairness, and procedural propriety. This includes analyzing situations where the administrative authority cites relevant versus irrelevant considerations, as well as instances of deviation in the exercise of authority and substantive errors.By drawing on similar concepts from civil law and other legal systems, we can develop a robust theory that aligns with the indicators of modern public law. Moreover, it is important to examine the relationship between this theory and issues such as occupational abuse, along with related concepts like administrative aims and causes, while clearly delineating their distinctions. The foundational elements of this theory of abuse of authority appear to be the existence of administrative authority, malice, and the intent to harm. Notably, all these elements revolve around the concept of public interest- which serves as the cornerstone of modern administrative law-diverging from their traditional meanings. Consequently, it is feasible to formulate a comprehensive theory that facilitates the recognition of abuse of authority in various aspects of administrative acts and positions. The proposed theory can also provide the necessary enforcement guarantees to address instances of abuse.
Hossein Fazli Maghsoudi; zeinalabedin Taghavi Fardoud; Alireza Saberian
Abstract
Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, ...
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Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, so that the damage leads to its deprivation and abstraction of property from the owner. The Islamic legislator has tried to expropriate property in accordance with property rights and according to the needs of society. Therefore, measures such as the provision of the Court of Administrative Justice and the Guardian Council have been considered in order to protect private property. In this article, which has been compiled in a library method, we will be in a position to answer the question of how the Court of Administrative Justice can prevent or protect the expropriation of persons, but the result is that the Court of Administrative Justice cannot prevent expropriation alone or without legal protection or fully protect the right to property.
Mehdi Zahedi; shirin sharifzadeh
Abstract
Freedom of expression includes the freedom to express, access and dissemination of information, whereas copyright, by protecting the original works of authorship, restricts use, access and dissemination of the protected works. When an expression is protected by copyright, freedom of expression or press ...
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Freedom of expression includes the freedom to express, access and dissemination of information, whereas copyright, by protecting the original works of authorship, restricts use, access and dissemination of the protected works. When an expression is protected by copyright, freedom of expression or press can be restricted. Some are of the opinion that these two rights are, in fact, not in conflict with each other but rather derived from the same social values seeking to protect each right. Common goals such as flow of cultural ideas or promoting creativity in the society causes interaction and synergy between the two. Idea-expression dichotomy by determining the scope of the copyright and distinguishing what belongs to the public domain, which is not a protected, will ensure a constructive interaction between the two and protects the public interest and dose not restrict freedom of expression. This article will discuss how to strike a balance between the public interest in freedom of expression and the private interests of the copyright owners without undermining the other. Idea-expression dichotomy as a counterbalance between these two rights is the cornerstone of this article.
hamid hamidian; Ali Rezaeiee
Abstract
Principles of international investment law and treaties are more about protecting foreign investors. Therefore, in investment agreements that are signed between the host countries with the investors or their respective governments, the host country is obliged to provide the necessary investment support ...
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Principles of international investment law and treaties are more about protecting foreign investors. Therefore, in investment agreements that are signed between the host countries with the investors or their respective governments, the host country is obliged to provide the necessary investment support and any action contrary to the investment agreement is prohibited. In some cases, however, the protection of the public and fundamental interests of society requires the host country to take actions contrary to the provisions of the treaty, as encouraging and promoting investment should not be at the expense of the internal public interest. So the main challenge is how the public interest in host countries can have convergence with investment criteria? The most important findings of this study indicate that although there is no uniform procedure in this regard, but the new approach of most tribunals is that if the government's actions are based on reasonable criteria such as necessity, similar conditions and appropriateness, it is allowed. Of course this is achieved by providing a balanced interpretation of the requirements of international investment and creating a balance between the public interest of the host country and the requirements of the rules of international investment.
Majid Najarzadeh Hanjani
Abstract
Since the beginning of its theory, the public services faced with conceptual ambiguity and its substantive diagnostic criteria, at least in practice, has not been clear. The privatization of public services and undermining the criterion of "government intervention" and "public interest purpose" added ...
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Since the beginning of its theory, the public services faced with conceptual ambiguity and its substantive diagnostic criteria, at least in practice, has not been clear. The privatization of public services and undermining the criterion of "government intervention" and "public interest purpose" added to the existing ambiguity. In these circumstances, the public function doctrine, aimed at protecting the fundamental rights of citizens and their legitimate expectations and consolidation of state responsibility and prescription of regulatory in the market of public services was outlined and welcomed. According to this doctrine, apart from public services that are offered directly by the government, services that were previously provided by the government, but are now provided by the private sector, are also consideredaspublic services. This paper usingdescriptive and analyticalmethod, at first, analyzesverbalandsubstantiveconceptof public service, then reviews thecontentof public function doctrine and evolution of concept of public service and finally studiespurposes and effects ofadoption of public function doctrine.
Mahnaz Bayat Komitaki; Mahdi Balavi
Volume 17, Issue 47 , October 2015, , Pages 123-155
Abstract
"Rights" and "Public Interest" are among the key elements of political , legal , ethical and social discourse in almost any society around the world including the contemporary legal and political discourse of Iran. Meanwhile, societies inevitably have certain reciprocal tensions resulting from diversities ...
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"Rights" and "Public Interest" are among the key elements of political , legal , ethical and social discourse in almost any society around the world including the contemporary legal and political discourse of Iran. Meanwhile, societies inevitably have certain reciprocal tensions resulting from diversities in their ethical believes and contradictory claims. That is why theorists in political philosophy and modern law have strived towards advancing solutions to such controversial strains. To name a few, Hobbes and Hegel have theorized the notion of State Interest, recognizing the interest of a limited number of governors as public interest, based on which they privileged it over individual rights and freedom of citizens. Granting, devesting , dispensing or restriction of any sort of individual rights they maintained could only be realized under the auspices of the same . This theory has its own advocates and critics in Shiiat world .Shaikh Mofid and Shaikh Toosi are among the proponents whereas Shaikh Ansari and Imam Khomeini fall under the category of opponents. In this paper, after introducing State Interest doctrine, we shall later review the misconceptions and practical challenges around the concept in light of Balance theory as a convergent theory in the relation between individual rights and public interest.
mahnaz bayat komitaki; mahdi balavi
Volume 15, Issue 42 , January 2015, , Pages 9-42
Abstract
AbstractThe concepts of right and expediency are two of the concepts that have beengoverned over political, ethical, legal and social discourses in the most ofcountries. However, due to the heterogeneity of the protection of the individual'srights requirements and the improvement of the general interest, ...
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AbstractThe concepts of right and expediency are two of the concepts that have beengoverned over political, ethical, legal and social discourses in the most ofcountries. However, due to the heterogeneity of the protection of the individual'srights requirements and the improvement of the general interest, the appearing ofan extent of conflict between these rights and those interests is inevitable. Theresearchers with various viewpoints about relationship between right and publicinterest have presented different solutions for such a conflict. Some of them havepresented the idea of right authority and insisted on priority of rights and someother have regarded the public interest as a superior consideration. Some ofresent theorists— by introducing the theory of exceptionalism— have insisted onthis idea that we are facing the “normalization of emergency conditions” speciallysince 9/11 and asked for offering more authority to the state in order to restrict therights while believing that public interests have precedence over the individual’srights and freedoms. In this essay, we will attempt to criticise the theory ofexceptionalism and then introduce the theory of balance as a convergent theoryabout relationship between individual rights and collective interests.