جستجوی مقالات مرتبط با کلیدواژه « Separation of Powers » در نشریات گروه « فقه و حقوق »

The Iranian Constitutional Revolution was a pivotal event in the country's history, its effects still evident today. The movement aimed to replace the absolute monarchy with a constitutional government, ultimately succeeding in establishing a constitution that sought to lay the legal foundation for a parliamentary system with democratic principles. A comparison of the Constitutional Revolution with other contemporary European constitutional movements reveals that its ideals were more closely aligned with the German constitutional movement, with an emphasis on limiting the absolute political power of the monarch and, consequently, the executive branch. The cornerstone of our discussion in this essay is first to recognize the understanding of the "rule of law" among constitutionalist thinkers, its elements, and its manifestation in the Constitutional Constitution and its supplement. The findings of this study show that the ideal of the "rule of law" cannot be found in a coherent way in the opinions of the thinkers of the Constitutional Movement. Therefore, it seems that the authors of the Constitutional Constitution and its supplement were not very successful in institutionalizing the concepts of the rule of law for various reasons. In addition, theoretically, there is also a break from the foundations in the realization of its important indicators.

The authorities of the government and the controls governing it in France show that creating moderation in the application of the principle of authority in order to secure public interests is based on something much more than the text of the constitution and includes a complex set of goals, norms and official structures and It is informal. The French Court of Auditors is one of these official structures that, despite the lack of a text-oriented position in the constitution of this country; At the same time, according to the law, it has a fundamental position in the field of control and supervision of the budget and public finance. It is quite clear that such a position and supervisory activity can have a substantive effect on the Court of Accounts in our country. In addition to the fact that the legal personality of this supervisory body was modeled after the French Court of Accounts; In its functions, it has always been influenced by external regulatory solutions, which, especially in the opinion of experts in the accounting and auditing professions, their implementation by the originating institution has been successful. For this reason, the conducted research, the sources of which have been collected in a library method and subjected to a descriptive-analytical study, tries to provide an answer to the question that: the political-legal factors that shape the basic position beyond the text of the Constitution for the French Court of Auditors and What are its functions?, to show that regardless of these factors, any philosophy of activity of the main supervisory institution is dependent and related to them; The possibility of implementing a successful new and imported surveillance program is only an idea that basically depends on the relevant translated texts and documents. In this regard, the results of the investigation of this question show that the existential philosophy of the supervisory organization of the French Court of Auditors is intertwined with some fundamental principles and concepts of the French public law as an organic and progressive order, in such a way that the conditions and tools of control The principle of authority, which guarantees the stability of these principles and the provision of public interests in a republic system with special sovereign powers, is first provided from within this group and independent of any external requirements. For this reason, although these principles have basic dignity such as the declaration of human and citizen rights in 1789; But the high position of protecting the fundamental rights of the nation by the Court of Audit of France is not due to any specific text of the constitution.

Previous legal provisions cannot predict and regulate all possible future situations, and laws are composed of words that are open-textured, meaning that they are always susceptible to different interpretations. This has made the role of judges crucial in determining the content of legal rules. How is this role assessed in the fabrics of the Iranian legal system? Furthermore, what is the position of judges in lawmaking or, more precisely, what is their role in judicial legislation, and how does this position relate to the principles of public law and considerations related to the separation of powers? This descriptive-analytical research attempts to examine the conceptual framework of judicial legislation in light of the theory of "legal realism" and analyze the legitimate boundaries of judges' discretion in the production of legal rules from the perspective of public law. This analysis requires, on the one hand, the clarification of the relationship between jurisprudence and adjudication and legislation, and on the other hand, the evaluation of the relationship between the Iranian legal system and one of the modern schools of legal philosophy, namely the school of "legal realism." According to the research findings, historically, the "Mujtahid Judge" has been the authority for declaring and applying legal rules, which creates similarities between the role of judges in legal theory and the role of judges in the school of "legal realism," although currently the substitution of individual ijtihad by the will of representatives in the legislative branch has introduced a new formulation in the fundamental principles of the legal system.

In terms of the historical evolution of the state, we are living in the era of the modern state, and according to some, in the era of the post-modern state. In the constitution of the Islamic Republic, some of the components of the modern state have been accepted, so the structure of the country's administration should also be established based on the structure of a modern state, but the author believes that a kind of administrative feudalism has been formed in Iran in the field of the administration of the country's affairs, which basically has a destructive effect on the administration of the country. In this paper, the existence of parallel institutions, the establishment of extra-constitutional institutions, giving authority to authorities to act in matters that are outside of their inherent duties, the influence of unofficial persons and authorities in the decisions of public institutions are among the manifestations of the formation of administrative feudalism in Iran. This is a kind of backwardness in the administrative method of the country. This way of functioning has caused the decisions of the administrative bodies to become uncertain, shaky and changeable, so the author believes that the first step to reform the process of running the affairs of the country and eliminate feudalism is to concentrate affairs in legally competent institutions based on the principle of separation of powers.

The principle of independence of judges is one of the principles that guarantee a fair trial. Independence can be examined from two dimensions: the first dimension is the institutional independence of the judiciary,and on this basis, the judiciary must act independently from other powers and not be influenced by the influence and possibly the political intentions of other powers.Another dimension of independence is the individual independence of judges, and it means not to exert any pressure from superior authorities or political pressure.Judicial independence has various dimensions, including: impartiality,health, competence. In order to guarantee the principle of the independence of judges, mechanisms have been foreseen by the legislator, among which we can refer to the observance of regulations in the process of recruitment and selection of judges, application of occupational immunity, civil immunity and regulations related to dismissal, transfer and change of judges.did The principle of judicial independence appeared in the laws of the constitutional era, and the principle of independence of judges is mentioned in the Constitution of the Islamic Republic of Iran as well as some ordinary laws.The research method in this study is descriptive-analytical, and the library method was used to collect the sources.The results of this study show that although the legislator, especially after the victory of the Islamic Revolution, has tried to realize the principle of the independence of judges in a more effective way,there are still shortcomings in the full realization of this principle, which requires amending the laws to solve this problem.We are available.

Pilot Judgment, taken by the European Court of Human Rights, is a method that reduces both the number of claims with the same source and the structural defects that lead to the violation of human rights and, consequently, the making of multiple uses. The purpose of the present study is to evaluate the feasibility of pilot-judgment in the Administrative Justice Court. The research method is comparative; in this way, based on the rules and precedent of the European Court of Justice, the nature, function, and manner of pilot-judgment are identified, and the existing grounds and gaps for its application in the Administrative Justice Court explain through analytical examination. Pilot judgment means taking action to reform a structural problem to stop the making similar lawsuits in the future, has the necessary capability to promote the position of the Administrative Justice Court as the highest institution for reviewing the administration and can role play as a tool for creating a scientific dialogue to reform structures between the administration and the Court. In the rules governing the Court, there is the capacity to enforce pilot-judgment to cause significant review under administration, and of course, this capacity is subject to self-awareness and the will to effectively judicial review.

Public will is one of the important issues in the field of political systems, which has always been the subject of discussion and opinion. to examine the position of public will in the constitutional law compared to the constitution of the Islamic Republic of Iran is purpose of this article.
This article is descriptive and analytical. Materials and data are also qualitative and data collection was used in collecting materials and data.
Ethical Considerations: In this article, the originality of the texts, honesty and trustworthiness are observed.
The findings showed that the structure of the Constitutional Constitution and the Constitution of the Islamic Republic of Iran, despite some similarities, have fundamental differences. The Islamic nature of government is the most important difference between the two discussed constitutions. In the structure of both laws, public will has been influential in the form of separation of powers, individual and social freedoms, rule of law and legislation by people's representatives. Under the influence of public will, in the constitutional law, the origin of the government is considered to be the people, but in the constitution of the Islamic Republic, according to the Islamic In fact, the origin of the government has a divine aspect and the people mainly play a role in the acceptance of the government.
The influence of public will in the Constitutional Law and the Constitution of the Islamic Republic of Iran was not absolute and faced some limitations.

The separation of powers based on the natural equality of human beings is an essential organizational feature of constitutional government. The clarification of this doctrine - which is the mission of this paper - depends on its pursuit to the concept of equality in freedom. By examining the works of Filmer and Locke, an attempt has been made to draw the direction of movement towards the separation of powers after the impeachment of this foundation. The results of this study are as follows: natural equality in disobeying the individual will of others, promotes the law as a non-individual will and the level of unity of the society of equals. Such plan of the law requires all people and ruling institutions to obey the law. In the rule of law system, no absolute will has the legitimacy to impose itself on others; therefore, the legitimacy of the actions of law enforcers and drafters is "conditional" to the legal framework. Since the government is considered the executive power, it is not possible to guarantee compliance with the law except by creating a structural conflict between its independent parts. Therefore, the separation of powers with the separation of institutions that perform various functions of the government provides an institutional solution to protect the constitutional government. Based on these results, in addition to clarifying the relationship between the separation of powers and constitutionalism, the conditions for the fundamental entry into the discussion of the usefulness of this doctrine for the current situation and its comparison with the Iranian-Islamic tradition are provided

Traditionally legal scholars of public law have categorized the legal and political structure of different countries mainly into authoritarian, parliamentary, presidential, semi-presidential and board of administrators, based on the constituent powers of the government, the description of the duties of each power in accordance with its function in the administration of the country and the power interaction between them.The selection of one of these structures is performed during the legal formation of the power structure, and this structure is usually delineated in the constitution.Now, it is important for us to answer the fundamental question, as to which of the aforementioned regimes is compatible with the legal and political system of the Islamic Republic?The hypothesis of this descriptive-analytical research is that the constitutional system of the Islamic Republic of Iran, due to its emphasis on the foundations of Islamic jurisprudence and its envisioning specific goals that aim to advance the objectives of the Islamic society, is a unique model that cannot necessarily be completely compatible with one of the conventional political-legal systems.Rather, in the best analysis, its relationship with these systems is such that in some instances, they overlap and share, while each possesses its own peculiarities.From this perspective, the result of the research shows that there is a kind of innovation in the style of the Iranian legal-political structure which, due to its formality, necessarily possesses a kind of fluidity.

Rulers in any country are more limited than the ruled as they are in charge of passing and enforcing laws as well as resolving disputes arising in the country. Distribution of power in the legislature, executive and judiciary and distinguishing the functions of each of these powers is a safeguard to preventing the concentration of power in the hands of a particular group or individual, which is called the Principle of Separation of Powers. Employing a descriptive-analytical approach, the present study investigates the separation of powers in the constitutions of the Islamic Republic of Iran and Pakistan. Commonalities and differences between the concept and function of separation of powers are compared and contrasted in the legal systems of the Islamic Republic of Iran and Pakistan. In the Constitution of the Islamic Republic of Iran, Article 57 recognizes the relative separation and independence of powers, as each power exercises its own powers under the supervision of the Supreme Leader. Although the constitution of the Islamic Republic of Pakistan does not mention the separation of powers, in various principles, the specific duties of each power are delineated and the function of separation of powers is perceivable. An account of the strengths and shortcomings of the two systems with deference to the principle of separation of powers could be helpful in ameliorating their functionality.

Legislation in modern legal systems is the prerogative of legislatures, based fundamentally on the progressive principle of separation of powers reflected in the work of thinkers such as Monsieur, Hobbes, Locke, and others. However, in exceptional circumstances, methods such as referendums or referral to specific legislative bodies during the period of delay or the passage of pilot laws may be used. In some legal systems, extra-parliamentary institutions have become out of principle and the circle of exceptions has been illegally expanded to include parliament as other legislative body; If most institutions should legislate technically and the scope of competencies in terms of compliance with the principles of legislation. This is important to avoid passing multiple and scattered laws and to get people out of the confusion and know what document to follow as a law. Fundamentally, political and philosophical schools such as liberalism, libertarianism, and republican theory have emphasized the need to at least suffice to preserve the fundamental rights and freedoms of individuals. It is possible to get out of legal parallelism by appealing to the minimal government, the necessity of observing the principle of proportionality, the necessity of paying attention to the philosophy of the principle of separation of powers. In this article, the authors describe the law by the parliament in a descriptive-analytical manner.

The transfer and legitimacy of power and the acceptance of the right of citizens to exercise it not only legitimizes the government to carry out governmental affairs, but also provides full credibility to regional and international countries to extend long-term treaty accession, exchange and expand diplomatic relations. According to the interests of the government and the nation. Reforming or renewing the principles or giving priority to divine sovereignty, from the introduction of Article 3 of the Constitution to the amendment of the law, which is embraced by all this fundamental principle, can be the ground for the solidarity of the nation. Its acceptance is the most fundamental principle for international legitimacy, because the social contract guarantees well-being and salvation, which benefits from the popularity and blessing of the spiritual benefits and worldly happiness of every member of society. Communication and the small village in the current era have intensified the acceptance of the nation's satisfaction, and the lack of this acceptance of pure political suicide is considered in a way that even the supporters of the current Taliban government are shocked to recognize it. Because such group governments are so powerless that their immediate and unexpected repression in the not-too-distant future and the creation of such groups is palpable. Also, the fundamental human right and the separation of powers are the two basic and permanent foundations of the authority of any nation, which must be determined from the heart of society, and constitutions begin to give authority over domestic and international affairs when the communicative action of that society is The written text should be inserted in accordance with the principles of separation of powers, and the implementation of separation of powers is a cornerstone of fundamental human rights.

The theory of legitimate expectation has been raised as one of the means of judicial review over exercising discretionary power in some European countries, including UK. This theory was initially considered by Schmidt's case, but this theory has been seriously criticized and many English lawyers and judges made serious doubts about it. In this paper, while outlining different perspectives, answers the question "What is the nature of the legitimate expectation and the challenges posed on this theory in the England Administrative Law System? Although the foundations of legitimate expectation have been based on "fairness", there is no single view on the nature and function of "legitimate expectations". Doubtful about accepting a substantive legitimate expectation in England and not accepting it in New Zealand and Australia, The concept of "prohibition of abuse of power" in the issuance of certain judicial opinions, the violation of the principle of separation of powers and rival concepts, such as the principle of proportionality, has posed legitimate expectations with serious challenges. These challenges have caused this concept to not have the characteristics of a legal principle.

Judicial security can be understood as the existence of a judicial organization that guarantees a fair trial for the general public so that people do not have to worry about their rights being violated in court. The realization of this concept depends on the existence of many elements within the judicial organization, the most important of which is judicial independence. Judicial independence must also be achieved in two areas; The first is the independence of the judiciary and the second is the independence of the judge. The present article examines for the first time the relationship between the realization of judicial security and the structural and administrative independence of the judiciary from the perspective of Islamic law. This study shows that the independence of the judiciary as one of the basic indicators of judicial security, although due to the absence of the issue in the age of the Innocents has not been explicitly the subject of Islamic law, but the goals of Islamic law in our time are appropriate to achieve independence. It is the judiciary.

Now in the organizational structure of the judiciary, in addition to general and specialized courts, have numerous administrative organizations. Usually, each of these organizations has been formed in accordance with the goals of the judiciary. In the framework of the separation of powers, it can be said that the qualifications, functions, duties and powers and responsibilities of the judiciary, only limited to some judicial functions. In addition, some non-judicial and organizational competencies have been identified to the Judiciary under different) articles including Article 156(of the constitution. This article analyzes the subsidiary organizations of the Judiciary from the perspective of the separation of powers doctrine. The basic assumption of this article is based on the belief that the judiciary is not only a matter judicial duty and to complete the tasks of judiciary, it is necessary, some administrative and quasi-executive functions may also be performed.Keywords: Separation of powers, theory of the two powers, executive acts, Judiciary, functionalism

In contemporary international legal system, the relationship between international and domestic law has still appeared to be a controversial issue and it seems to be even more challenging for federal governments e.g. the US. Paradoxically, the US Constitution recognizes international law as the higher law whereas federal and state authorities do not constantly comply with this prioritization. The US, seemingly a hegemon, in several cases has proved not to obey some international judicial decisions particularly the ICJ’s unless they are in harmony with its national interests. While analyzing tripartite branches of the US government, the legislature and executive apply double standards when dealing with the US international obligations, but state courts and even the Supreme Court, have repeatedly ignored the ICJ decisions and hence the US international commitments and initiated the so-called “New-Federalism”.

Designing Suitable state structures for applying Power of sovereignty in form of political powers and state institutions is a requisite for observing the Rule of Law and Good Governance. Theorizing about state structures in executive power has long history. For the last few decades, management structure of judiciary has not been paid attention by scholar and legislators.Creation independent, efficient and responsible judiciary has been studied by theorists of public law and public administration and founder legislator in different countries. Predominant model in this issue is executive model. Based on that model, Ministry of justice has duty of managing judicial power in administrative and financial affairs and hence is responsible in front of relevant political institutions and authorities such as parliament and council of ministers. But from a few decades ago, independent institutions are forming in judiciary. That institutions have received some of competences of the Ministry of Justice step by step. That institutions are known as “(Supreme) Judicial Council”. The findings of this research indicate that the evolution of the Judicial Management System in Iran during the constitutional amendments in 1989 was in the opposite direction of global developments.In this essay by collecting resources in a library way and with descriptive analysis method, we study evolution of management system of judiciary to council system through explaining the development of creation, structures, competences and analyzing function of judicial councils in different legal systems.

The ideals and aspirations of Ecuador's leaders and elites to establish a system of government based on respect for Citizenship rights and public freedoms have led to specific legislative and executive initiatives in the country's new system of government. Initiated by Ecuador's new constitution, these initiatives could be a good guide for studying and changing the traditional separation of powers structure to further guarantee the nation's fundamental rights. Therefore, in the present descriptive-analytical method, the principles, structure and function of the fourth and fifth powers of Ecuador, which are entitled "Electoral power" and "Citizenship Rights power" alongside the traditional three powers, have been studied. And it has been concluded that in this country, on the one hand, the electorate, which according to the constitution is responsible for guaranteeing the observance of Citizenship rights in elections, while monitoring national and local elections, councils to review and amend laws and regulations that are against the law It has established citizenship and ensuring the observance of citizenship rights in elections, and on the other hand, the fifth branch is responsible for expanding and institutionalizing citizenship rights and preventing the enactment of laws that contradict it. However, in most countries, these functions are exercised through intra-power or supra-power institutions.

In today's world, the separation of powers as the cornerstone and cornerstone of democracy, the adornment of the constitution and the vassal of the rights and freedoms of the people and the main basis and purpose of this principle has been to achieve the original ideal of democracy. Now the question arises whether the methods and models of separation of powers in the Islamic Republic of Iran and the three political systems of the model and claimant of democracy, namely the British Parliament, the US presidency and the French semi-presidential / semi-parliamentary, really comply with the principles of separation of powers and democracy. The present study uses analytical-descriptive method to prove the hypothesis that the relationship between the principles of separation of powers and real democracy is like a link between a text and its footnote, and therefore it is not possible to choose different models of separation of powers as a brain teaser. Be clear with the basics of separation of powers and the characteristics of democracy. The result of the research will be that the above-mentioned countries have chosen different models of separation of powers based on apparent democracy, and it is suggested that because today's theory of the three powers no longer meets the demands of democracy, the fourth and popular power called "supervisory power" And subversion "should be considered in the constitutions of countries.

The idea of ​​separation of powers led to the formation of various legal systems, including the presidential, parliamentary and a mixture of semi-presidential and semi-parliamentary systems with the purpose of preventing the amassing of institutional power, and driving homogeneous issues in the legislative, executive, and judiciary areas toward specialization. Therefore, the comparative and prescriptive study for the Iranian legal system that tends to improve separation of powers and its leadership is an important issue not to be neglected. Accordingly, the current study attempted a comparative prescriptive study of the separation of powers in Iran and Japan. Japan is an Asian country that is quite successful in economics, and like Iran, uses a two-pillar executive power model. Japan’s model of the separation of powers is the monarchy-constitutional parliament, wherein the executive branch, consisting of the emperor and the cabinet, is accountable to parliament. Thus, while examining the differences and commonalities of the systems of separation of powers, the authors have utilized the descriptive-analytical method to explain that the parliamentary model in Japan, for its dominance on the government, faces much less executive tension. Moreover, because legislative and controlling authority is exercised exclusively within the framework of the National Diet[1] does not face normative, executive and even judicial divisions.