Public Law
Zohreh Naeimifard; MAHDI HADAVAND
Abstract
In administrative law, the "rule against bias" is one of the branches of the principle of "procedural fairness". One of the situations that may lead to a violation of the mentioned rule is "conflict of interest". Despite the importance of discussing the conflict of interest ...
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In administrative law, the "rule against bias" is one of the branches of the principle of "procedural fairness". One of the situations that may lead to a violation of the mentioned rule is "conflict of interest". Despite the importance of discussing the conflict of interest in the public sector, taking into account its relationship with the rule against bias in administrative law, this issue has been addressed less, and the main topics discussed are related to the relationship between corruption and conflict of interest. Considering the relationship between this concept and the rule against bias, this article, using an analytical-descriptive method, seeks to examine the nature, elements, application, criticisms, and challenges of conflict of interest management to increase transparency and public trust in the government. It seems that bias and conflict of interest are related in the potential of influencing decision-making, jeopardizing impartiality and fairness, and affecting the validity of administrative decisions and actions. The most important requirements of prohibiting bias in conflict of interest are refusal and disqualification. In the face of the challenges in managing conflict of interest situations, continuous improvement, modification, and updating of conflict of interest regulations are necessary to ensure avoid any appearance of bias.
Public Law
Samaneh Rahmatifar
Abstract
The objective is to offer legal solutions that humanizes administration by enhancing pleasure and minimizing pain. The research employs a descriptive-analytical approach.Bentham's pleasure theory will serve as the theoretical framework, involving an exploration of various pleasure types. Subsequently, ...
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The objective is to offer legal solutions that humanizes administration by enhancing pleasure and minimizing pain. The research employs a descriptive-analytical approach.Bentham's pleasure theory will serve as the theoretical framework, involving an exploration of various pleasure types. Subsequently, legal components will be delineated to facilitate the application of each pleasure type within administrative processes. Bentham's philosophy underscores the principle of pleasure as a foundation for determining public interest and legislating accordingly. Bentham identifies fourteen pleasure examples,. Additionally, he enumerates twelve instances of pain Fostering pleasure among both staff and citizens aligns with the public interest. Its elements encompass asking for minimum documents, the admissibility of any request, prohibition of caution within the framework of the law, prohibition of narrow interpretation of legal competence, transparency of administrative law enactments, exercising discretions according to the will of the customers, granting job-related privileges to staff, meritocracy, professionalism, equality for solidarity, good-faith, adaptation of the citizen's private interest and public interest, absolute prohibition of disclosure of citizens' information, combatting corruption, consequentialism. The elements form a body of humanization within administration by legalizing of pleasure, becoming the content of the code of ethics, implementing through related general principles, promoting through education, and guaranteeing through self-control.
Public Law
Salah Ghsemyani; Mohammd Reza Mojtehedi; Mohammd Mazhari; Syed Hussain Malkuti Hashjinmalakooti@
Abstract
IntroductionDecentralization has established itself globally as a preferred model of governance in today’s world. In this respect, the present article highlights the value of adopting a decentralized model of government that grants broad powers—not only in administrative matters but also ...
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IntroductionDecentralization has established itself globally as a preferred model of governance in today’s world. In this respect, the present article highlights the value of adopting a decentralized model of government that grants broad powers—not only in administrative matters but also in legislation—to citizens at the local level. In Iran, the question of local decentralization first emerged during the Constitutional Revolution through the creation of state and provincial associations. After the victory of the Islamic Revolution, these associations were replaced by local Islamic councils. Following the directive of the Revolution’s leader to the Revolutionary Council, the councils were given legal status even before the drafting of the constitution. Despite this historical background, decentralization in Iran still faces significant legal challenges. This raises important questions: Has a true system of local decentralization been established in Iran, given the constitutional provisions for state associations and local Islamic councils? What are the defining features of a decentralized system? What legal and extra-legal conditions are necessary to build such a system in Iran? To what extent can revisiting Iran’s past experience help us understand the challenges of that period? What steps should be taken to redesign Iran’s local decentralization model? And what solutions are needed to overcome its legal obstacles? Literature ReviewSo far, the issue of decentralization has been examined in many fields of the humanities, including public law, political science, and management. In this context, a number of legal studies can be noted. In “Pathology of Islamic Councils’ Powers from the Perspective of the Separation of National and Local Affairs,” Shamiri et al. (2022) examined the challenges faced by the councils in the constitution and ordinary law, particularly the failure to delegate sufficient duties and powers. They emphasized the need to revise the Guardian Council’s interpretive approach. Similarly, in their research titled “The Role of Comprehensive Decentralization in Realization of an Efficient Local Government,” Rahmatollahi et al. (2015) stressed the importance of transferring the maximum possible decision-making authority in both administrative and political affairs to citizens, as a means of establishing an effective and democratic local government.Gurji-Azandriani and Abolhasani (2016), in their study “The Role of the Council in the Management of Public Affairs: Decision-Maker or Decision-Shaper?” argue that in legal thought, Shura (or council) is defined as an institution with general powers for decision-making, decision-shaping, and oversight. However, the council, as a consultative institution in Islam, lacks authority beyond decision-shaping. They highlight problems and inaccuracies in labeling many institutions Shura (or council) within the political–legal system of the Islamic Republic of Iran, noting that diverse legal bodies have been labeled as Shura without a clear and consistent definition.Moreover, in “The Study of Qualification Vulnerability of Islamic Councils in Iran’s System of Law,” Moeinfard et al. (2019) emphasize that Islamic Councils neither possess sufficient powers nor benefit from a proper separation of national and local affairs in the laws. They add that varying interpretations by the Guardian Council, combined with these legal shortcomings, have prevented Islamic Councils from realizing their true potential and undermined their dignity and role. “A Comparative Approach to Local Decentralization in Iran” (Aghaei-Togh, 2018) focused on the functioning of councils and concluded that two of the three essential elements of local decentralization have not been incorporated into Iran’s legal system. Habib-Nejad (2009), in “A Legal Examination of Islamic City Councils in Light of the Principles of Decentralization,” used an analytical approach focused on both technical and geographical dimensions in order to examine decentralization and the shortcomings of Islamic Councils in Iran. Finally, in the Persian-language book Decentralization and Self-Management, Khobroy-Pak (2005) criticized the applicability of federalism to Iran, defending instead the constitutional principles governing the administration of provinces and localities. He calls for a re-examination of the solutions proposed by the framers of Iran’s first constitution for managing the relationship between the central government and local regions, arguing that new measures are necessary today. Materials and MethodsThe current study used a descriptive–analytical method to examine the issue of decentralization and its challenges in Iran. Moreover, content analysis was applied to analyze the data collected from various library and documentary sources. Results and DiscussionThe challenges of local decentralization in Iran have been analyzed across legal, interpretive, judicial, and structural dimensions. The first challenge concerns conceptual ambiguity regarding the status of councils, the lack of formal recognition of the decentralization system, and the absence of legal personality for territorial units in Iran’s constitution. In addition, the lack of explicit legislative authority, the failure to establish effective enforcement guarantees, and the incomplete adoption of local councils modeled on provincial associations represent further obstacles to the establishment of such a system. Another challenge arises from the Guardian Council’s conservative interpretation of the Constitution, which has relegated councils from decision-making bodies in governance to merely advisory and supervisory roles. A further challenge is the approach of the Administrative Justice Court as a judicial authority, which has frequently limited the powers of local councils. Finally, Iran’s deeply rooted centralized power structure, with its several-thousand-year historical background, has not readily embraced the culture of democracy or the distribution of power to local councils. Conclusion This research examined the policy of decentralization in Iran. A prerequisite for democracy in any country is the creation of a framework that guarantees freedom and enables people’s participation in local governments. Adopting a decentralization model by transferring local affairs to citizens and involving them in decision-making will not only strengthen citizenship rights but also enhance local participation. In conclusion, it is essential to revise and amend the Constitution, change the perspectives of the legislature and the Guardian Council, and reform the Administrative Court of Justice and executive bodies—especially the Ministry of Interior—regarding the role of councils. However, none of these measures alone can transform the country’s political structure and culture. Such change is only possible through the active presence of a developed and engaged citizenry. Although this process began with the experiences of the Constitution and the Islamic Revolution, it remains incomplete and must be further pursued.
Public Law
Zohreh Naeimifard; Mahdi Hadavand
Abstract
IntroductionIn administrative law, the rule against bias constitutes a key component of principles of procedural fairness and complements the theory of good governance. Various forms of bias (e.g., personal, cognitive, organizational–institutional, previous involvement, preconceived opinions, ...
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IntroductionIn administrative law, the rule against bias constitutes a key component of principles of procedural fairness and complements the theory of good governance. Various forms of bias (e.g., personal, cognitive, organizational–institutional, previous involvement, preconceived opinions, predispositions, or prejudgments) can significantly influence decision-making processes. Despite the importance of the rule, its foundations and dimensions have received relatively limited attention within administrative law, with most discussions focusing primarily on judicial impartiality. Given the role of comparative law in administrative law, the present study adopted a descriptive–analytical approach to explore the nature, elements, and application of the rule against bias in British administrative law. Currently, the British legal system’s approach to the rule against bias appears fragmented and inconsistently applied, with varying standards. Any violation of this rule may render the administrative authority incompetent, with consequences ranging from the decision being void to merely voidable. While concerns persist regarding the rule’s rigidity—particularly in technically complex or specialized administrative matters—there remains a pressing need to balance between competing concerns. Literature ReviewThe general applicability of the rule against bias, as the second principle of procedural justice, is addressed in a chapter in the Persian-language book titled Comparative Administrative Law: Procedural Justice (Fallahzadeh, 2015). Aside from Fallahzadeh’s work, which serves as a key reference for the present study, the existing Persian-language literature lacks an independent and comprehensive analysis of this topic. It seems that the literature on the principles underlying the rule against bias and the related judicial procedures remains limited. Thus, the present study can be considered a novel contribution in its focus on the legal status of biased administrative decisions, as well as the criticisms and challenges associated with the application of the rule against bias. Materials and MethodsThis study adopted a descriptive–analytical approach, drawing on the data collected through a library research method and a review of library sources. Results and DiscussionAccording to the findings, the rule against bias plays a central role in upholding procedural fairness and legitimacy within the U.K. administrative legal system. The British courts have gradually moved away from rigid, formalistic distinctions—such as that between judicial and administrative functions—toward a more flexible, context-sensitive approach. This shift reflects a growing recognition that all decision-makers, regardless of their institutional position, are bound by the fundamental obligation to act impartially. The analysis identified three doctrinal categories of bias—actual, presumptive, and apparent—each with its own criteria and evidentiary standards. Although this categorization allows for nuanced application, it leads to a fragmented framework. Courts have thus far refrained from adopting a unified test, resulting in inconsistencies in application and interpretative uncertainty. Nevertheless, the current analysis supported the emerging scholarly and judicial view that a single, objective standard of apparent bias—centered on maintaining public confidence—could offer a more coherent and accessible doctrine. Moreover, the legal consequences of bias in administrative decisions—ranging from voidness to voidability—highlight a lack of consistency in available remedies. Outcomes often depend on judicial discretion and the nature of the administrative act, creating ambiguity that may undermine the predictability of the legal system. Despite these challenges, the British courts have consistently emphasized the need to balance procedural safeguards with practical considerations, particularly in specialized or technical administrative contexts. Finally, this research underscored the rule against bias as both a normative and functional safeguard. It serves not only to ensure the integrity of individual decisions but also to reinforce the broader legitimacy of administrative governance. The continued evolution of this doctrine in the U.K. law reflects an ongoing effort to reconcile formal legal principles with the imperatives of effective, accountable, and transparent public administration. ConclusionThe rule against bias remains a fundamental principle of procedural fairness in the U.K. administrative law. Although the British courts have adopted a more flexible, context-sensitive approach—moving away from outdated distinctions between judicial and administrative functions—the absence of a unified standard for identifying bias continues to result in inconsistency. The tripartite framework of bias offers analytical clarity but complicates the predictability. The growing recognition of both material and immaterial interests as grounds for disqualification reflects the expansive scope of the rule, yet also underscores the need for a coherent, objective test grounded in public confidence. While breaches of the rule may render decisions void or voidable, the courts strive to balance this with practical considerations, such as administrative efficiency and expertise. Ultimately, the rule against bias is evolving from a rigid, formalistic safeguard into a dynamic mechanism for ensuring fairness, legitimacy, and accountability in public decision-making.
Public Law
Samaneh Rahmatifar
Abstract
IntroductionIn the field of public law, democracy creates a clear boundary between the political and administrative layers of the government. The model of democracy is applied in the political layer, while the administrative layer operates based on meritocracy and specialization. Democracy often remains ...
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IntroductionIn the field of public law, democracy creates a clear boundary between the political and administrative layers of the government. The model of democracy is applied in the political layer, while the administrative layer operates based on meritocracy and specialization. Democracy often remains behind at the door of the administration, mostly under the pretext of quality, complexity, expertise, and delegation (Zweifel, 2005). As a result, the legitimacy of the administration becomes questionable. Moreover, the shortcomings of representative democracy have raised serious concerns about the democracy in the political layer. One proposed solution is the restoration of direct democracy. The main objective of the present study was to adapt the components of direct democracy to the specific needs of public administration, thereby facilitating the application and restoration of democracy in this domain. Furthermore, the study tried to identify the components of direct democracy and analyze the demands of the administrative system. The central question is: How can direct democracy be applied within public administration?The underlying hypothesis suggests that the democratization of administrative processes is both plausible and achievable, just as democracy has been successfully integrated into businesses, political parties, governmental bodies (e.g., parliaments), and non-governmental organizations (NGOs). Through a series of gradual reforms, there is a strong potential to shift democracy from being merely a political ideal to becoming an integral part of everyday life.Literature ReviewThere is extensive research on the outcomes of democratization of private organizations. Much of this literature owes to the effort of scholars in management science. These studies often revolve around key terms such as organizational democracy and workplace democracy, with a primary focus on improving human resource factors. For instance, in “Organizational Democracy and Employee Outcomes,” Ahmed et al. (2019) examined the positive effects of participatory management practices, evaluating their potential to reduce employee turnover, increase commitment, improve competence, boost job satisfaction, and enhance overall efficiency.Materials and MethodsAdopting a descriptive–analytical method, the present study first identified and described the components of direct democracy and the requirements of administration. Then, a comparative approach was used to analyze the relationship between the components.Results and DiscussionDemocracy is often seen as a means to achieve socio-economic goals within the organization (Bilge et al., 2020). Organizational democracy entails the continuous and inclusive participation of employees in organizational affairs, influencing the organizational culture rather than the inherent relation dynamics (Weber et al., 2023). However, there are two significant gaps in the existing literature. First, there is a noticeable lack of studies that position direct democracy as the organization’s primary objective or ultimate value, while exploring a comprehensive methodology for its implementation. Second, the contextual emphasis tends to overlook the legal aspects involved in democratically managing administration. The democratization of administration is closely related to the concepts of organizational democracy and workplace democracy. It represents a key requirement of a democratic political system and serves as an example of the right to public participation, as outlined in Article 21 of the Universal Declaration of Human Rights (UDHR). In political societies, there are significant indicators of a declining public interest in representative democracy, including reduced voter participation and a waning desire to join political parties. In response to these trends, experts advocate for strengthening mechanisms of direct democracy, akin to a revival of Athenian democracy. However, implementing such an approach on a national scale is considered impractical in today’s crowded and complex societies. Instead of continuing efforts to restore direct democracy at the national level, which may lead to further disillusionment with the democratic process, a more pragmatic solution would be to ensure and promote it at sub-national levels and within smaller, less populous communities. The administration is an institution where a significant number of citizens are employed, while an even larger number interact with it daily to access public services. As a result, the adoption of democracy within the administration—particularly through direct democratic methods—not only offers an initial opportunity for a democratic experience but also helps to deepen democratic values within society. This, in turn, strengthens democracy and fosters hope for its wider application at the national level.ConclusionThe components of direct democracy include the promotion of value-legal equality among citizens, pluralism, public participation and supervision, the protection and promotion of human rights, consensus-based decision-making, the existence of a general assembly, and the rule of law derived from these principles. These components can be realized in the administration through the following ways: Establishing an inclusive assembly of employees, achieving decision-making within the assembly through consensus, eliminating administrative hierarchies, ensuring active participation, enabling all employees to monitor internal affairs, proposing employment criteria and addressing violations through legislative authorities, and establishing a consensus-based regulatory framework among employees. The participation and oversight of all citizens and their representatives in administrative affairs are made possible through the framework of administrative democracy. As a result, direct democracy in administration can take on a consultative, yet primarily binding, nature—initiated by employees—and extending beyond fundamental matters to encompass the daily issues of administration. The findings confirmed the hypothesis that suggests the possibility of democratization of public administration in a manner similar to the processes in political parties, NGOs, and international organizations. It is now evident that democratization is possible, but only with significant changes, particularly in hierarchical relations. This implies that establishing direct democracy within the administration is impossible while maintaining the current structure. A thorough examination of the hierarchy requires independent research. In Iran’s administrative–legal system, there are scattered regulations that, if reinforced, could serve as a foundation for initiating the democratization process. However, the hierarchical structure and the lack of historical experience with direct democracy present significant obstacles to its implementation.
Public Law
Rohollah Moazeni; Seyedeh Zahra Pourrashid
Abstract
Introduction Since its establishment in France in 1800, the governorate has served as the state’s high representative and the guarantor of the unity of the state and the nation within the territorial boundaries. Later on, the Iranian legislature also adopted the fundamental principles of the French ...
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Introduction Since its establishment in France in 1800, the governorate has served as the state’s high representative and the guarantor of the unity of the state and the nation within the territorial boundaries. Later on, the Iranian legislature also adopted the fundamental principles of the French governorate system. These principles were incorporated into Iranian legal and political literature through two key laws: the Country Divisions Law of 1937 (1316 S.H.) and the Law on Determining the Authority of Governors enacted in 1960 (1339 S.H.). The primary purpose of this institution is to represent the central government at the local level and to coordinate administrative departments in implementing the government’s public policies.There is an ongoing concern about how the division of duties and authorities has evolved over time. In recent years, high-ranking officials in Iran—including the President, ministers, and governors—have officially highlighted the inadequacy and imbalance between the authorities and responsibilities of governors, calling for an expansion of their powers. However, two key issues remain somewhat unclear. First, it is not precisely defined which specific jurisdictions are limited in terms of the governor’s authority. Second, the strategies adopted by Iran’s central government to create a better balance between central and local powers have yet to be clearly articulated. Relying on a comparative analysis, the present research aimed to examine the new role of governors under French law, where it enjoys a relatively balanced position. It tried to compare the French system with the legal norms in Iran and to propose a more effective model for enhancing the accountability of governors in implementing the central government’s public policies in Iran. The analysis focused specifically on the outcomes of decentralization and its impact on the authorities and duties of governors. With the support of various legal texts and by adapting to evolving practical procedures, governors exercise a new form of authority over non-centralized sectors—those subject to deconcentration. This is an area where the French innovations are largely absent from Iranian law. The research sought to address the following questions: Is there a need to expand the authority of governors in the context of Iran’s non-centralized system? If so, in which areas and through what means and instruments should this authority be expanded?Literature ReviewIn the Persian legal literature, there is a noticeable lack of comprehensive sources that examine the authority of governors within the processes of decentralization and deconcentration. Yet there are a few relevant studies. For example, in the article “A Review of Local Governance Organization in Iran: Legal and Administrative Challenges and Solutions,” Shams (2017) focused on the historical development of administrative styles in Iran and explained the factors driving Iranian officials toward centralization. The article titled “A Comparative Introduction to the Territorial Decentralization in Iran” (Aghaei Toogh, 2018) explored three key elements of local decentralization in Iran and France: legal personality, the general competence of local decentralization authorities in France, and the elective nature of decentralization authorities in both countries. While both studies provide valuable insights, their points of focus differ significantly from the current research.Materials and MethodsThe current research began with an analysis of legal texts, as they form the foundation for understanding the principles that govern deconcentration processes. Several key laws and regulations that had contributed to deviations from previous frameworks were examined and evaluated. However, these legal norms do not necessarily provide a complete or accurate picture of the governor’s current position and powers. It seems that governors need to develop an understanding of legal norms and align themselves with them in order to lay the foundations for their new role. Nevertheless, practical procedures and customary practices must not be overlooked, as they play a crucial role in the actual exercise of the governor’s special prerogatives and are deeply intertwined with them.Results and DiscussionJust as the highest executive authority at the national level is responsible for ensuring administrative and political coherence and serves as the core of governmental power (the dignity of the presidency), the governor at the provincial level carries duties and authorities that closely resemble those of the highest political authority. The governor acts as the guarantor of unity between the state and the people within the province. The current study comparatively examined the question of what authorities a governor should have to fulfill these critical responsibilities and implement the government’s public policies in the province. In France, the issue of the governor’s insufficient authority has never been a point of contention. Instead, since the early 1980s, the focus has been on expanding decentralization programs and enhancing the duties and authorities of local–council institutions. A significant number of duties and authorities previously held by the central administrative system have been transferred to these local institutions. As a result, the governor, on behalf of the central government, no longer directly intervenes in these areas. Instead, the governor’s role has shifted from that of an executor to one of supporting and promoting projects. One of the most complex aspects of the governor’s duties is their influential role in relation to local institutions. In this respect, the governor’s significance extends beyond legal and organizational powers; they also serve as a communicative bridge, with the potential to initiate special initiatives through interactions with local representatives. A key example of this role is found in the government–region contracts and projects in France. Thanks to this role, local institutions often view the governor as a supporter of their development programs. ConclusionThe research findings suggested that the authority of governors in Iran over local non-centralized institutions is not only insufficient but also requires significant reform to increase their power and supervision capacity. Such reforms are necessary for governors to effectively coordinate the various institutions established in the region (decentralization). Another key finding is that the role of governorate is both complex and unclear. The solution lies in adaptability and continuous innovation, rather than merely expanding legal authority. The procedures, continuity, and stability in the central government’s efforts to strengthen decentralized institutions, particularly the role of the governor, are likely to yield more tangible results than simply modifying or enhancing legal instruments. Moreover, given the complexity and multifaceted nature of the governorate, the government should give greater consideration to the selection of governors and their qualifications. A comprehensive transformation in the scope of decentralization in Iran—while also reducing the governor’s authorities in this area—could create an opportunity to enhance the governor’s ability to promote coherence among central institutions in the province. This transformation could enhance the governor’s capacity to foster greater cohesion among central institutions in the province.
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.
