جستجوی مقالات مرتبط با کلیدواژه « قانون اساسی » در نشریات گروه « فقه و حقوق »

The JCPOA is one of the agreements where the competence of the authorities involved in it is questionable. Therefore, with this approach, the aim of the current research is to study the common chapter of the competences of the Islamic Council and the Supreme National Security Council on the issue of JCPOA by using analytical -descriptive method and using library resources. The findings of the research show that the origin of the joint powers of the Islamic Council and the Supreme National Security Council is the two special tasks of legislation and policy-making. Contrary to popular belief, the competencies of the Islamic Council are not only legislative but also a set of legislative bodies and subordinate institutions. The functions of the Islamic Council are exclusively for the three functions of legislation, supervision, and interpretation of ordinary laws. In addition to the Islamic Council, the Supreme National Security Council, which is responsible for the regulation and implementation of the national security strategy in the country, in fact, the entire mechanisms for regulation and follow-up of national security, especially Iran's peaceful nuclear program, which is one of the most important topics of Iran's foreign policy in three It is the last decade After the leadership body. The Supreme National Security Council is the highest body whose rulings are in force. That is, the approvals of the Supreme National Security Council are valid for all executive bodies of the country with the approval of the leadership and there is no need to go through.

According to paragraph 15 of the general policies of the legislative system announced by the Supreme Leader on 7/6/2018, one of the axes of determining the country's legislative priorities is the implemented principles of the Constitution. In the current situation of the country, the economy is one of the most important priorities of the country. As a result, it is necessary to evaluate the economic principles of the Constitution from this point of view. In addition to sub-paragraph 12 of article 3, the head of article 43 and the sub-section of article 44 of the constitution, the objectives of the economic system have been stated. The forty-third article of the constitution has stated the rules of the economic system of the Islamic Republic of Iran in nine clauses, which are the basic elements of a correct and fair economy. Considering the legal requirement and the necessity of fulfilling these criteria, the basic question is which one of them has been neglected. It is also necessary to look at these rules as a single set so that the system of economic rules of the Islamic Republic of Iran can be evaluated in terms of the level of realization as a coherent package. The results of this research show that due to the lack of a unified and coherent look at the set of rules of the economy of the Islamic Republic of Iran stipulated in Article 43 of the Constitution, some of these rules have been neglected at times, and the implementation of one rule has led to the neglect of another rule.

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.

International treaties are recognized as important elements in establishing connections between different legal systems, and they have also been endorsed by the Constitution of the Islamic Republic of Iran and Article 9 of the Civil Code. The fundamental issue related to the position of international treaties within the Iranian legal system requires the recognition of the various classifications of international treaties based on criteria such as form, substance, and the formalities of their conclusion. This is necessary to determine how the institutions and authorities involved in the treaty-making process, under the provisions of the Constitution. This research examines the concept of a treaty from various perspectives, as well as the definition provided by Article 77 of the Constitution, and the treaty-making process outlined in the 1969 Vienna Convention on the Law of Treaties, concerning the Iranian Constitution. It identifies the duties and responsibilities of each of the relevant branches of power and authorities to prevent any potential liabilities for Iran. While Article 125 of the Constitution outlines the process for approving treaties and the roles of the Parliament and the President, the significant involvement of other institutions necessitates a precise determination of the position and responsibilities of the executive, legislative, and judicial branches based on the principles of the Constitution and its authoritative interpretations. Additionally, the scope of authority of other entities, such as the Guardian Council, the Expediency Discernment Council, and the Supreme National Security Council, which may have an impact on this process depending on the subject matter, should be clearly defined. Despite the clarity of some of the duties and responsibilities of the branches of power and sovereign institutions, there is still ambiguity and inconsistency in certain areas. This underscores the need for a comprehensive law regarding the conclusion and implementation of treaties, and even the potential necessity of amending the Constitution.

Religious minorities are those citizens of the Islamic State who adhere to Islam and are granted citizenship rights within a contractual framework. Using an analytical method, this study tries to explain the distinction of this minority in political rights. It bases its analysis on the theory of citizenship rights, necessitating a linkage between citizenship and the right to political participation. The study refutes the competing hypothesis based on the differentiation between types of human dignity, considerations related to the principle of "Nafye Sabil" (denial of dominance), and the contract of protection (Ahd Dhimma). It proves its hypothesis that differences in citizenship rights, except where democratic considerations necessitate adherence to the majority's general will in society management or where there are valid concerns about the minority’s loyalty, do not form distinctions in political citizenship rights. Minorities, as citizens, have the right to nationality and the right to vote. In elected positions subject to Shari'a, they can compete for election, and for both rights, they can have political organization. Therefore, it is suggested that some provisions of electoral laws and parties be amended.

The ratification of treaties in Iran is the scene of confrontation between two distinct legal systems. In this conflict, any inconsistent interpretation of the foundations of these legal systems results in different legal effects. In fact, the dichotomy between Sharia law and the constitution with the principles of international law, which can be seen in treaties, imposes certain legal requirements on the executive and legislative branches, and the recognition of these requirements depends on the opinions of the guardian council in reviewing international instruments to complete the country's foreign policy in the field of international agreements. The main question of this research is to examine the legal requirements governing bilateral or multilateral agreements, which is written in a descriptive-analytical method. From the total opinions of the guardian council, two substantive and structural rules can be taken in the review of the approvals, which narrate the procedure of this council in examining the emerging issues of international law, which ultimately led to the protection of the people's rights.

In the existing hierarchy in the Iranian legal system, for many decades, laws have emerged that are known as: "program laws". The basis of these laws must be sought in an attitude that is imbued with characteristics such as "interventionism" or "guidance". The existence of such instruments, doubles the need to address their place in the Iranian legal system. Based on this, reviewing them and comparing these laws with the constitution is one of the central issues of public law knowledge that has been addressed in this paper and this question has been answered: what is the relationship between the program laws and the constitution of the Islamic Republic of Iran? To answer this question, a descriptive-analytical method and library resources were used. The most important results obtained from this research are as follows: first; due to the lack of clarity about the place of these laws in the hierarchy of documents in Iran, we are forced to provide different readings of this situation. Second; by any reading, these laws,  cannot constitute a constitutional restriction, because their relationship with the constitution is of the "longitudinal relationship" type, which inevitably puts them in a lower position than the constitution. Third; the constitution is the final indicator of the legal norm. From this point of view, one can not imagine an atmosphere in which the Constitution of the Islamic Republic of Iran as the ultimate source of interpretation of programmatic laws is realized.

Social benefits are one of the important topics of distributive justice discussed in the field of social justice. For instance، criteria of distribution and entitled groups as three issues of distributive justice are always discussed and investigated socially and legally. The importance of the answers to the mentioned issues will be decisive in the way people benefit from wealth، positions and the presentation of justice indicators. Considering the importance of public goods issues in public law، the main problem of the current research is to identify، explain and answer the mentioned issues from the perspective of the constitution. In this paper، using content analysis method، the titles of social gifts and related issues were analyzed and researched. The results show that according to the constitution، many titles are included under the title of social benefits. These benefits should be distributed in target communities based on criteria such as equality of opportunity، equality of opportunity، legal equality and general equality. Considering these gifts and revisiting its examples will create a suitable platform for a better understanding of the constitution and a more correct establishment of other policies and instruments in related fields.

Today, in the legal literature of the modern state, the rights and privileges of citizens have a high place. Some have divided citizenship rights into three categories: civil, political and social rights, which include the most important rights of citizens. Since the constitution is a kind of instrumental mechanism to guarantee social order, provide the wishes of the individual and the limits and scope of the government's authority, its purpose is to protect the public and individual rights and freedoms of human against the inherent aggression of the political power structure. In the discussion of the constitution and citizens' rights, it is both rational and appropriate to accept a definitive assumption that no constitution can inherently remain silent regarding the rights of citizens; Rather, the most fundamental part of any constitution is declaring the basic rights and freedoms, especially the political rights, of citizens. In the legal system of Iran, the rights and privileges of citizenship were considered and taken into account first in the amendment to the constitution, then with the occurrence of the glorious Islamic revolution and the foundation of the Islamic Republic system, the political rights of citizenship were broadly and explicitly included in the constitution of the Islamic Republic of Iran was considered. On the other hand, in international law, especially in international documents, it recognizes the rights of individuals and especially the political rights and obligates governments to comply with these international rules. Based on this, the researcher, with the descriptive-analytical and data collection method, following the nature of the research, the library method, seeks to answer the following questions: Has the constitution legislator predicted political examples of citizenship rights in the constitution? Are these examples used in international documents? And what affinity can there be between them? Anyway, after reviewing the materials, it can be seen that the legislator has considered examples of political rights for citizens both in the constitution and in international documents. These examples have a lot of similarities considering that human nature and human being are meant to be human.

Human dignity and the legitimate freedoms of members of the society are one of the fundamental rights of nations, which the government, as a superior governing body, is responsible for observing. It is important to refer to the history of civilized societies and sacred religious texts that legitimate freedoms have been the concern of rulers and demanded by citizens for many years. The current form of power structure in most societies, which takes place in accordance with the separation of powers, requires the consideration of a large governing body to implement and facilitate the observance of these freedoms for individuals. In the process of criminal proceedings, compliance with some penal principles will guarantee the legitimate freedom of citizens during the proceedings and proceedings of the courts. In this research, by studying and verifying these principles, we will deal with the performance of the judiciary in protecting the basic rights of people in the society. These principles are briefly; The principle of acquittal, the principle of non-retroactivity of criminal laws, the prohibition of torture and the acquisition of illegitimate reasons, and the principles governing the determination of crimes and punishments.

The police is one of the most important parts of the judicial system in a civilized society. The existence of a scientific and principled police system shows the government's respect for individual rights and freedoms, as well as the protection of society. In the current era, security and freedom are essential factors in the management of any society. In the meantime, administrative police are in charge of regulating regulations for public order at different levels of the country. Here, the important element is the regulations related to the administrative police, which has many privileges. This type of regulation can be at the state level or even at the national level. The understanding of the administrative police regulations is based on the constitution. Finally, the first goal of this research is legal analysis and explanation of the position of the administrative police in Iran's legal system

According to article 50 of the constitution, environmental protection is a public duty, and all people and agencies are obligated to do so. One of the factors that threatens the environment is the phenomenon of haze that has affected many provinces of Iran in the past decade and today threatens the right to life of citizens and even many animal species. On the other hand, considering that many countries face this environmental risk, in addition to domestic actions, joint actions of countries should not be ignored. For this reason, in recent years, laws and agreements have been introduced at national, regional and international levels, but they have not been able to affect the management of haze phenomenon. In addition, measures must be taken within the country that prevent or minimize the penetration of haze phenomenon, These measures have been mentioned in laws such as the Clean Air Act, the Environmental Protection and Improvement Act, and the Executive Regulations on Combating the haze phenomenon, but unfortunately they have always faced challenges; Therefore, in this study, while emphasizing international actions, these challenges and limitations have been addressed and solutions have been proposed to eliminate them in order to manage haze phenomenon.

Article 173 of the Constitution stipulates the competence of the "people" in the position of plaintiff in the Court of Administrative Justice, and the opposition between the word government and the people in this principle indicates the generality and application of the word people Against the government. However, since a number of people living in the country do not have Iranian citizenship, but they have daily interactions with the government and in some cases they inevitably need justice, this question is raised whether foreigners are included in the conceptual circle of the people, Are they entitled to Article 173 of the Constitution? According to the issues raised in this article and by analyzing international documents and legal analysis of the principles of the Constitution and ordinary laws, as well as the procedure of the Court of Justice can be acknowledged, Not only that, none of the domestic laws has deprived the right to a fair trial in a special administrative court and their jurisdiction to be a plaintiff in the Court of Justice, Rather, all the above confirmations, according to the principles of the principles of jurisprudence, indicate the application of the word "people" And foreign nationals will not be formally barred or restricted from entering the applicant.  Notwithstanding the above details, paragraph A of Article 18 of the Code of Judicial Procedure of the Court of Justice deems it necessary to include a national code in the submission of a petition to the Court, which is a legal obstacle to receiving a citizen's petition.

In the various principles of the Constitution of the Islamic Republic of Iran, there are severe conflicts and conflicts, which can be seen in the principles related to the judiciary, principles 36 and 167 of the Constitution are among them. And the conflicts and conflicts have spread from the text of the constitution to other laws. For example, the ambiguity in Article 167 of the Constitution has spread to Article 220 of the Islamic Penal Code approved in 1392, and this law, which as a normal law should contribute to the transparency, elaboration and future work of the principles of the Constitution, has become a summary and generalization, which is the result of it. The abandonment and inefficiency of Article 167 of the Constitution will be in effect.

The constitution as a key concept in the knowledge of law and constitutional one has most complexities and precisions. Therefore, many of theories have been conformed regarding that. This fundamental Research has been written to be the basis of the State 's proceedings in order to protect the people's rights; however, sometimes it might happen that one or more principles are obsolete, though they exist in the text of the constitution, they might be remained unimplemented for decades. These principles are called Obsolete principles of the constitution or abandoned in the theories of constitutional law. This article seeks to vividly analyze the aforementioned concept in the theory of fundamental rights with a descriptive-analytical method. In the present article, while defining the concept and the causes of its emergence, it has been defined the boundaries of it with other concepts such as outdated principles, deferred principles, thin conceptions of principles. Also, one of the most important issues related to the abandoned/obsolete principles, i.e. the informal amendment of the constitution, has been addressed.

One of the continuous concerns of human society, which is especially considered by legal and social science experts today and is interpreted as a basic component in good governance, is combating the phenomenon of ‘corruption’. The dangerous place of the judicial system and the need for the health of the judiciary from corruption, which will cause the eradication of corruption, oppression and discrimination, immorality and other corrupting factors in the society, lead us to the fact that we should look for a solution to prevent corruption in the judiciary. Transparency is one of the important and influential components in dealing with corruption. The main question of the research is based on the proposition that "from the point of view of transparency, in a general sense, what results can be obtained regarding the existing processes in the judiciary (judicial-administrative) that will result in the reduction or deterrence of corruption?" The present research, using a descriptive-analytical method, regarding the data collected by the library method with the definition and division of the concept of transparency in the field of affairs related to the judiciary into two categories, administrative and judicial, with the necessity of adopting solutions such as strengthening the information systems of officials' property Judiciary, clarifying the process of appointment of judges, free publication of judicial opinions by the judiciary and the like, which their application will lead to the improvement of indicators of deterrence from corruption in the judiciary.

The theory of constitutionalization of administrative law is one of the methods by which the constitution is protected. It is used when the fundamental rights and values as well as the principles in the constitution are implemented by administrative law. The system of administrative law is clearly influenced by the principles that constitute constitutionalization. Protection of the constitution is one of the most important issues in any legal system. [The Iranian] legal system is no exception to this rule, and judges have an important role to play in safeguarding the constitution. This theory is almost a decade old in our country. The results of this study, which is written in a descriptive-analytical method, indicate that due to the lack of a constitutional court [in the Iranian legal system], the two institutions of the Guardian Council with it’s priori supervision and the Court of Administrative Justice with its posteriori supervision, have taken steps to implement the neglected principles of the constitution and in this way the constitutionalization of administrative law has been gradually achieved.

The budget  documentis one of the most important legal documents in which different organs of governance have roles and responsibilities in the stages of drafting, approving, implementing and monitoring it. In addition to predicting and determining financial resources and expenses, this document is also considered a planning document. The annual planning should aim to cover and realize the goals of the upstream documents and the macro directions of the country's plans. Among the upstream documents are the general policies of the state, which are defined in the hierarchy of legal norms, sub-constitutional and above normal laws, and are an important indicator for determining the legal requirements of the budget. This paper, using a descriptive-analytical method, seeks to answer which legal requirements can be considered in the stage of preparing and adjusting the budget by referring to the general policies of the state? By examining the legal requirements arising from the general policies of the state, they can be organized into two groups of formal and substantive requirements. The extracted formal requirements include strength in literature and legal terms, comprehensiveness, inclusiveness and participation, and the extracted substantive requirements also include justice-oriented, central issue and emphasis on the goals of the general policies of the system.

The aim of this research is to investigate the legitimacy of Iran's political system between leadership as a religious and religious concept and republicanism as a western and new concept derived from the system It is the western politics that has been reflected in the constitution after the Islamic revolution. so; The challenges and jurisprudential-legal contradictions of legitimizing governance based on jurisprudence and people's republic in the Islamic Republic of Iran are examined in this research. The results of this research show that if there is any ambiguity in the interpretation of the people's right to sovereignty, it is necessary to pay attention to the constitution as a system; First, the position of the people as the creator of political power and the system of the Islamic Republic of Iran and the constitution should be considered as the product of the nation's will. In this assumption, the system of the Islamic Republic of Iran, as a creation of the people, must always be subject to its creator, that is, the nation, and thus, the creator of political power inevitably has the right of full and sole sovereignty. Based on this, the constitution has recognized the single sovereignty and dual and limited sovereignty is fundamentally incompatible with the principle of people's right to self-determination. Although in recent years, the people's right to sovereignty has been ignored in practice and institutions such as the Guardian Council have taken steps to Islamize the laws and also hinder the people's forces in the decision-making process and access to key institutions, but the people's sovereignty with The interpretations in the constitution prevail.

The experience of political parties, with their functions and capacities in the modern world, has been acknowledged as the driving force of society and a mechanism for social welfare. The principle of party affiliation is also accepted in the Constitution of the Islamic Republic of Iran. Practical experiences of political parties over the past four decades demonstrate that this civil institution can be utilized in line with the goals of Islamic society. However, a fundamental vacuum felt during these years is the inability of the Islamic system, research centers, or political and party movements to produce Islamic knowledge for the party behavior and social roles defined by Article 26 of the Constitution.Such knowledge relies on political jurisprudence, which, with a jurisprudential approach, should correctly identify the subject of party affiliation. By explaining the nature of party work, it must outline its foundations and principles to develop party statutes, charters, and policies. The most significant achievement of this research is that, with an analytical and interpretative approach to religious texts, it has been able to revisit some of the Islamic party's foundations, principles, and intricacies.