Public Law
Samaneh Rahmatifar
Abstract
The democratization of administration is similar to the concepts of organizational democracy and workplace democracy. It is a democratic political system requirement and an example of the right to public participation (rticle 21 of the UDHR). The purpose of the research is to implement direct democracy ...
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The democratization of administration is similar to the concepts of organizational democracy and workplace democracy. It is a democratic political system requirement and an example of the right to public participation (rticle 21 of the UDHR). The purpose of the research is to implement direct democracy in administration or explain the elements of democratic administration. The approach employed is descriptive and analytical. It involves a description of the elements of direct democracy and the administrative prerequisites. Subsequently, it delves into an analysis of their interplay. Components of direct democracy are legal equality, pluralism, public participation and monitoring, promotion and protection of human rights, consensus orientation, arranging general assembly, and the rule of law. The elements of democratic administration are the creation of an inclusive employees' assembly, decision-making by consensus, strengthening employees' belief in the necessity of participation, and creating the regulations in the assembly by observing the higher legal rules. The last one refers to respecting the status of representative democracy. However, these elements require changes in the administration and obviously cannot be combined with a hierarchical structure, or at least hierarchy plus direct democracy in administration leads to the practice of democracy instead of democratic life with excessive bureaucracy.
Public Law
Rohollah Moazeni; Seyyedeh Zahra Pourrashid
Abstract
Since the provincial government was first in France in 1800 and in Iran in 1316, It has been representative of the central government and the integrator of the departments located in a province which ensured the solidarity between the government and the nation. During the last decade, some governors ...
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Since the provincial government was first in France in 1800 and in Iran in 1316, It has been representative of the central government and the integrator of the departments located in a province which ensured the solidarity between the government and the nation. During the last decade, some governors and authorities have repeatedly claimed that the authority of governors is not sufficient to carry out their duties. This comparative study aims to compare the evolution of the governorship institution and their authority in relation to the local administrative institutions based in the province in France and Iran. The findings of the research indicate that the authority of governors in Iran, in relation to the local decentralized institutions, not only do not suffer from a lack and defects but the excess of the authority and extensive supervision of the governors in relation to these institutions requires substantial reform so that the authority and potential of the governors mainly lead to coordinating the numerous central agencies located in the region (decentration). Another finding of this research is that the position of governorship is complex and ambiguous, with adaptability and continuous innovation being the solution, rather than an increase in legal authority.
Public Law
Zohreh Naeimifard; Mahdi Hadavand
Abstract
In administrative law, the "rule against bias" is one of the branches of the principles of "procedural fairness" and complements the theory of "good governance". Personal, cognitive, organizational-institutional biases, previous involvement, preconceived opinions, predispositions ...
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In administrative law, the "rule against bias" is one of the branches of the principles of "procedural fairness" and complements the theory of "good governance". Personal, cognitive, organizational-institutional biases, previous involvement, preconceived opinions, predispositions or prejudgments are the most important aspects of partiality. They can influence decision-making processes. Despite the importance of the aforementioned rule, less has been addressed to its foundations and aspects in administrative law, and most of the topics discussed are focused on judicial impartiality. Considering the position of foreign law in the field of administrative law, this article, using the analytical-descriptive method, examines the nature, elements and application of the rule against bias in English administrative law. It seems the current approach of the English legal system to the rule against bias is complex and scattered, applied with different standards. Also, the violation of the rule against bias results in a lack of competence of the administrative authority, with varying degrees of effect ranging from "void" to "voidable" of the decision. Although there are some serious concerns about the inflexibility of the rule against bias, especially in technical and specialized administrative matters, it is necessary to strike a balance between competing concerns.
Public Law
Mohammd Reza Mojtehedi; Mohammd Mazhari; Syed Hussain Malkuti Hashjinmalakooti@; Salah Ghsemyani
Abstract
Decentralization has found its global position as the preferred method of governance in today's world. This article aims to investigate the legal challenges of local decentralization in Iran. The history of decentralization in Iran goes back to the formation of state and provincial associations ...
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Decentralization has found its global position as the preferred method of governance in today's world. This article aims to investigate the legal challenges of local decentralization in Iran. The history of decentralization in Iran goes back to the formation of state and provincial associations during the constitutional period and after that it continued in the Islamic revolution period in the form of Islamic councils, but this system is still facing serious legal obstacles. The research examines the legal challenges of the decentralization system with a descriptive-analytical approach in legal dimensions (constitutional law and ordinary laws), interpretative, judicial and structural. The findings showed that the concern is from the historical experience in the emergence of the paper constitution and joining the associations in the form of councils. In order to solve the legal challenges of the decentralization system in Iran, it is an inevitable necessity to revise and amend the constitution, change the attitude in the legislature, the Guardian Council, the Administrative Court of Justice and the executive bodies, especially the Ministry of Interior, and there is a need to change the political structure and culture of the country.
Public Law
Badie Fathi
Abstract
IntroductionThe rule of prior referral of cases in Iran is a common principle in procedural law applicable to civil, administrative, and criminal procedures. Grounded in the principles of celerity and good administration of justice, the rule of prior referral of cases states that if there is a connection ...
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IntroductionThe rule of prior referral of cases in Iran is a common principle in procedural law applicable to civil, administrative, and criminal procedures. Grounded in the principles of celerity and good administration of justice, the rule of prior referral of cases states that if there is a connection between cases being heard by two or more separate courts— such that it serves the interests of justice to investigate and adjudicate the case together—the second court must relinquish jurisdiction and refer the case to the first court or branch. If the same dispute is pending before two equally competent courts of the same level, the second court must also relinquish jurisdiction in favor of the other court if one of the parties requests it. Otherwise, the second court may do so ex officio. In French civil and administrative procedures, related cases are not necessarily sent to the primary branch but may be referred to one of the two branches or jurisdictions at the discretion of the decision-making authority. The present study aimed to address several key questions: What is the basis for the prior referral of cases in procedural law? How and when did this concept emerge in Iranian procedural law? What are the differences among civil, administrative, and criminal procedures in this context? Additionally, how does this rule apply when cases fall within a single jurisdiction or across two? The research also explored the differences between Iranian and French law regarding this rule, as well as any exceptions that may apply. Literature ReviewIt seems there is no significant research on the rule of prior referral in Iran and France. However, procedural law texts contain discussions on exceptions of lis pendens and connexity. Moreover, in a Persian article titled “The Effect of the Relationship of Actions in Civil Trials”, Hassan-Zadeh (2015) addresses related disputes. Materials and MethodsThe present study used a descriptive–analytical approach and a library research method. Results and Discussion The rule of prior referral of cases in Iran’s procedural law was established by judges before being incorporated into legal texts. Iran’s Civil Procedure Code adopted in 2000 refers to the rule of prior referral of cases only in Article 227. There are differing opinions within the legal doctrine. However, Article 89 of the Civil Procedure Code and Article 13 of the 2013 Family Protection Act outline the procedures for joining the cases. Concerning the administrative procedure, Article 51 of the 2011 Law of Administrative Court of Justice (with the amendments introduced in 2023) incorporates the rule of prior referral as a principle for joining related lawsuits. The criminal procedure, due to its distinct nature, takes a different approach to joining cases, with the rule of prior referral applied only in limited circumstances. In the French procedural law of 1975, the rule of prior referral is applied specifically in the exception of lis pendens (Article 100) and the exception of connexity, where the court president refers related cases to one of the branches based on specific circumstances and conditions. This can be referred to as the rule of referral appropriateness. In the French Civil Procedure Code, when there are two related cases in different jurisdictions, the decision made by the jurisdiction that declines to hear the case first is binding on the other jurisdiction. If this decision is appealed, the appellate court may transfer the related cases to any jurisdiction it considers appropriate for joint investigation and adjudication. If the exception of lis pendens arises, the jurisdiction will be selected based on the rule of prior referral of cases. In contrast, Iran’s civil and administrative procedure laws do not mention the transfer of related cases from the initial court to the appellate court. Additionally, the civil and administrative procedure laws do not address the authority of the appellate court to refer related cases without regard to the rule of prior referral. The legal doctrines have differing opinions in this respect. In the criminal procedure, the application of the rule of prior referral of cases has different provisions compared to civil and administrative procedures. Moreover, the rules governing the application of the rule of prior referral also differ significantly in the criminal procedures of Iran and France. ConclusionAccording to the findings, that the application of the rule of prior referral in Iranian law is more effective than the rule of referral appropriateness, particularly when considering the circumstances surrounding the cases and the principles of functionality and speed.
Public Law
Mohjtaba Vaezi
Abstract
Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts ...
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Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts of “ministerial power and discretionary power”. Given the place of foreign law in the field of administrative law, analyzing the origins and aspects of words can help prevent mere adaptation with no attempt at conformity. Examining the concept of competence and its types distinguishes public law, in particular administrative law, from civil law, and consequently makes it easier to identify the appropriate legal rules. The division of competence is not limited to the two types of ministerial and discretionary power. These divisions Affect the manner of judicial control, the type of civil liability regime, and the quality of the principle of legality. Contrary to popular belief, it has also been shown that the principle of "assumption of no authority" does not apply equally to all areas of administrative law. Competence also has its own reflections in the field of administrative contracts, unilateral actions, management of internal affairs of the administrative organization, public order, and public service, which, of course, should be examined on a broader basis.Regarding discretionary power, valuable books have been written, which are mostly focused on the two types of discretionary and ministerial power, such as the book " Discretionary Power" by Dr. Ali Mashhadi in 2013 and the book "Discretionary Power in the context of Modern Public Law" " published in 2014 by Dr. Reza Fanazad.Despite the importance of the two concepts above, it seems that diving deep into analyzing and clarifying the main concept of competence is still necessary and can help to provide appropriate legislation and more accurate judicial decisions in this area. Method and PurposeThis article, through a comparative-analytical method, discusses the different types and functions of competence in the field of administrative law, after dealing with the concept and similar concepts. Also, with a library research method of data collection, we seek to provide as much precision as possible to the key legal concepts in the field of administrative competence, to further explain the nature of administrative functions and facilitate judicial supervision over them. Main Text Competence in the judicial sense, simply, is the lawsuits and complaints that a judicial authority can, and must, deal with.With the provided definition, it should be possible to distinguish the concept of "competence" from "authority". The authority of a judicial authority can be considered as a set of legal facilities that a judge possesses and uses to discover the truth and verify the validity of the parties’ claims, in his capacity of adjudicating and after establishing his jurisdiction. Despite such a distinction in the field of judicial law, in the specific topics of administrative law, the concept of competence includes both the authority and scope of action of the agent. Therefore, it can be said that in Article 170 of the Constitution, in the phrase " or lie outside the authority of the executive power " authority means the field of action of executive authorities.Administrative competence in its strict sense, i.e., inherent or special competence, regarding its content and raison d’etre, has three basic characteristics:1- Undertaking affairs of others: The authority is basically a set of powers and duties that are provided to the administrative officer to perform a public mission or serve the public interest. Therefore, administrative competence is actually the power to administrate the citizens' affairs, or in the words of civil law, administration of another’s affairs.2- Exclusive tenure of a mission: competence is the exclusive responsibility of a public matter which is determined by thematic, temporal, or geographical criteria.3- Possessing legal powers and privileges: the mission of securing the public interest, in principle, requires the possession of a special privilege of authority.- Categories of administrative competence:1- Discretionary competence vs. ministerial competence: The most common and familiar division of administrative competence is ministerial and discretionary. ministerial competence in the shortest definition is where only one option is available to the administrative officer, and on the other hand, discretionary competence is where more than one option is available to the administrative officer based on which he has to decide and act.2- Instituting competence (constitutional) vs. diagnostic competence (declarative): when discussing diagnostic competence, it is noteworthy to check its resemblance with the discretionary competence of the administration. There is a fine line between these two types of competence. The diagnostic competence oversees the identification and diagnosis of the subject and has similarities with the judicial function, in the sense that the relevant authority checks whether the subject of investigation is in accordance with the legislative decree or not. For example, the interview board for PhD selection or employment interview committees identify people who possess the scientific and moral capabilities required by the law. In other words, diagnostic competence is basically declarative in nature and therefore has a quasi-judicial function. Also, to prevent errors and personal conflicts as much as possible, diagnostic authority is usually assigned to a council of experts. The said council is speciallyfounded based on this type of competence, and it has no other functions, so it can be said that the mentioned competence is the reason d’etre of these bodies of authority. On the other hand, instituting authority is where the administrative officer takes an initiative decision and creates a right or obligation or a new legal situation and so, it can be said to be a completely administrative measure. Also, the holder of instituting authority can be an individual officer or a council consisting of people. In addition, the range of functions of an officer with instituting authority is not limited to one or more cases, and to fulfill his multiple missions, he may have ministerial authority in some cases and discretionary authority in other cases.3- General competence vs. special (inherent) competence: administrative competence in its common sense is special or intrinsic competence. The authority of the administration in the legal actions it takes can be divided into two main types according to the nature of its function and goals: general authority and specific or inherent authority of the administration.General authority is the total authority that the administrative body has like any other legal entity. As a legal entity, the administration is considered to have a legal personality and should have the powers that every legal person needs to carry out its affairs. Competences such as concluding contracts and the capability to possess property rights to meet specific needs are among these common competencies.specific or inherent competence of the administration are the powers that the administration has as an official for public service. Not only do private legal entities not have this type of authority, but in many cases, it is specific and exclusive to a certain public person, and for this reason, they are called the special authority of the administration. For example, supervising the standards of urban buildings is the responsibility of the municipality, and in this regard, it can change them if necessary where deemed necessary.In the following, we have discussed the concept and basis of the principle of assumption of no authority in administrative law and we show that the said principle has different functions in different areas of administrative contracts, unilateral actions, internal affairs of the organization, public order, and public services.finally, we have discussed the consequences of different types of competence and their relationship with the scope of judicial control, the regime of civil responsibility, and the principle of legality. ConclusionAdministrative authority, due to belonging to the field of public law and conducting public affairs, has two important characteristics of exclusiveness and authoritativeness. In addition, other classifications of competence which have a practical impact in determining the applicable legal regime should also be recognized. Classification of competence into two types of instituting and diagnostic, on one hand, and into two types of general and special competence on the other, as well as identifying the characteristics of the principle of “assumption of no authority” in terms of its basis and function, require more reflection.It is needed to separate the scope of the implementation of the mentioned principle in the two areas of public order and public services and consider the different circumstances. The public law nature of the concept of competence makes the role of the administration important in administrative contracts, unilateral actions, management of internal affairs of the organization, and the fields of public order and public services, so much so that one cannot expect acceptable function from administrative bodies if this concept is not accurately defined in the field of public law.
