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

In this article, it is claimed that in modern law, the drafting of the constitution is one of the most important and sensitive measures in forming the legal order. Because the legal system determines the general framework of individual actions and social interaction of people, and this is both for the present and future and of course, the form of this law is also a matter of choice. In line with justifying this claim, John Elster's theory of rational choice is one of the most influential and comprehensive theories in explaining and criticizing the methods of drafting the constitution, which is based on two principles: the first principle: "the individuality of human action" and the second principle " The benefit-centeredness of human actions" has been proposed. According to this opinion, the electoral behavior of a society is the best example of using a rational choice, and the formulation and construction of the constitution is the best case, because in this work, even if there is no malice, it may make the situation worse than it is, and this is due to "rationality". is incomplete. This essay has investigated the application of this method in the analysis of drafting and revising the basic law, or what is called the design of the constitution, with an emphasis on the thought of John Elster. The purpose of the research is to examine this theory in relation to how and why people participate in drafting and creating the constitution as rational agents. This is a Research Article

In the Constitution of the Islamic Republic of Iran, the necessity of accountability of the executive branch to the parliament is emphasized and various ways have been considered for this accountability. One of these ways can be the need to give a collective vote of confidence to the cabinet - that is, a vote of confidence in the entire group before a vote of confidence in individual ministers. The present article seeks to answer the question with a descriptive-analytical view, what is the verdict of collective vote of confidence in the Council of Ministers in the constitutional law system of the Islamic Republic of Iran. The finding of the article is that according to the text of several principles, the issue of giving collective vote of confidence to the Council of Ministers is foreseen in the constitution, but this issue has not been seriously considered either in the common laws or in the practical procedure. Although this way of supervision of the parliament over the government is basically one of the characteristics of parliamentary systems, our constitution prefers to use it in order to make the government more accountable to the parliament. In this way, in addition to the individual program of each minister, the parliament will also supervise the general policy of the government.

Iran's new oil contracts, known as IPC, is a new model of contract to restore relations with the industrial world, which includes all oil operations from exploration and drilling to development and exploitation and increased harvesting. In fact, the purpose of this research is to study these types of contracts For the implementation of upstream projects in the country's oil and gas industry, it is from the perspective of the Islamic Republic of Iran's Constitution, which was written in a descriptive-analytical way, and the findings of the research indicate that the principles of exploitation of oil resources, including the negation of foreign economic domination and economic independence and The observance of public interests and public interests in the provisions of the approved general conditions have been observed and the non-contradiction of this type of contract with the principles and provisions of the Constitution is obvious, and the indicators of foreign financing, security production, technology transfer and maximum use of domestic capacities with the initiative of prolonging the period The contract and tying the contractor's fee to the amount of production from the field or tank, without transferring the sovereignty and ownership of the National Oil Company as the operator of the oil and gas resources, is superior compared to the mutual sale contracts.

The principle of "individuality of the effect of judicial decisions" is considered one of the procedural principles and one of the dimensions of protection from the substantive aspect of judicial independence. Based on this principle, the decisions issued by the courts are effective only in the rights and duties of the people involved in the proceedings and are ineffective for other people. Considering that the absolute acceptance of this principle in some cases may lead to differences in procedures and as a result injustice, Article 161 of the Constitution has established the authority to issue unanimity votes to the Supreme Court in order to solve this issue. Despite this importance in the legislative approach regarding the Court of Administrative Justice in general and the recent reforms of the Court Law in particular, the legislator has considered the votes issued by the branches and boards of this institution to have a specific and general effect, contrary to the aforementioned legal principle. Among these provisions is Article 93 of the Law of the Administrative Court of Justice, which considers the opinions of specialized boards and general boards in the capacity of handling complaints against government approvals to be valid and criteria for administrative and judicial bodies and authorities. The review of the legislative approach mentioned in this article showed that although the standardization of the court's decisions may have merits, the obligation of judicial and administrative bodies and authorities to follow the decisions of the general board in handling complaints against government regulations, with fundamental issues various, including the jurisdiction of judicial interpretation (subject of Article 73), the supervision of the speaker of the parliament over government regulations (subject of Article 138), the substantive dimension of the principle of judicial independence and the statistics of the sources of issuing a decision (subject of Article 167) and The jurisdiction of court judges in reviewing government regulations (the subject of Article 170) is not harmonized.

Although oaths have been more prominently considered in the context of relationships between natural persons, we also witness the use of this ethical-legal tool in the realm of public law, particularly in the process of holding public offices and positions. This research seeks to answer the question of whether the oath taken by political officials in the Islamic Republic of Iran at the beginning of their activities is merely a moral and ceremonial matter, or if it also carries legal obligations. From one perspective, the oath has only an ethical description and serves to ensure the individual's inner conscience for fulfilling their duties and responsibilities appropriately. However, this article aims to demonstrate that, in addition to its ethical implications, the oath in public law serves both as a cause for the establishment of public positions and as a cause for their continuation. In such a way that without taking an oath in certain sensitive positions, the legitimacy of that person's actions is negated. Similarly, if an individual deliberately and intentionally violates the terms of the oath during their tenure, it will create grounds for their removal from public office, or at least it should. Although the second approach is valid based on the principles of the constitutional law of the Islamic Republic of Iran, there is still no specific legal mechanism provided for this important issue. This research is conducted with a descriptive-analytical approach, and the materials are gathered using library research methods.

Expressing loyalty to the Constitution, especially its immutable and key principles, is a public commitment. However, this commitment is more sensitively addressed for individuals who are government officials, depending on their level and position within the governance structure. For this reason, one of the general conditions stated in the regulations governing the employment and entry of individuals into government agencies and sensitive positions, including membership in the Islamic Consultative Assembly, is loyalty to the Constitution and its most fundamental principle, namely the absolute guardianship of the jurist. In this context, Clause 4 of Article 28 of the Election Law of the Islamic Consultative Assembly, enacted in 1999 with subsequent amendments, stipulates that one of the conditions for candidates for representation is "expressing loyalty to the Constitution and the progressive principle of the guardianship of the jurist." The main question of this article is how this condition is established. The answer to this question, derived through a descriptive-analytical method and preliminary examination of the concept of loyalty and the basis of this condition, is that loyalty to the Constitution is among the natural rights of governance and is a commitment of the nation, especially in the capacity of government officials. It is expressed both verbally and practically, and it has degrees that must be established through common knowledge (ordinary knowledge or confident suspicion).

In the Iranian legal system, use of legislative history (including parliamentary materials) in legal interpretation is quite prevalent. Judges and jurists always try to remain faithful to the legislative history and refrain from giving any interpretation contrary to it. Despite the role of legislative history in interpretation, it’s been widely neglected in our legal literature. The following paper explores this matter with regard to Iranian law. It develops arguments based on legal theory, constitutional law, and thus affords deeper insight into the current discussion on legal methods. Despite the role of legislative history in legal interpretations, its nature, types and criteria are unclear and unresolved. In this paper, first a precise definition of legislative history and its types is provided, and then the validity of legislative history is discussed , and explained how legal schools can invoke legislative history based on the assumptions they have previously accepted. In the second part, the main criteria for applying legislative history in legal interpretation is stated. Finally, (Part 3), it has been tried to identify the main applications of legislative history in legal interpretation along with real examples in the Iranian legal system.

History is full of popular struggles against oppression and tyranny. When a government undermines the existing democratic regime and jeopardizes the constitutional order, there is a need for a mechanism to safeguard the rule of the Constitution. To address this, democratic systems worldwide have long recognized the concept of the Right to Resistance (RtR) within their constitutional laws. However, this issue has been overlooked in Iran, leading to a dearth of legal research in this area. This theoretical gap necessitates comprehensive research to advance the public law literature. This article adopts a descriptive-analytical approach to answer this question: What is the position of the RtR IN the international legal system and constitutions, particularly in the Iranian Constitution? The research findings reveal that the RtR is regarded as a fundamental human right within the international legal system. Additionally, this right has been enshrined in numerous constitutional laws due to its dual function (both forward-looking and backward-looking). In the Constitution of Iran, the right to resist can be inferred from the affirmation of "the right to sovereignty and self-determination of the people" or "enjoining the good and forbidding the evil of the people towards the government". Resistance can also be justified as a "non-peaceful assembly" and as a "guarantee of popular implementation of deprivation of rights and freedoms".

In the 7th principle of the Constitution, local councils are considered at the level of Islamic Consultative Assembly as one of the main decision-making bodies of the country. Participating in decision-making and running the country requires authority and power. Since local councils are actually local parliaments, have the local councils like the parliament enough authority and power to fulfill this fundamental role and how to obtain a suitable model from the parliament for better governance of councils. In order to clarify the issue, it’s necessary to consider the similarities and differences of the local councils and Islamic assembly. They are similar in terms of the legal regulations that are enforceable, the bounding of all approvals on the Islamic laws, being directly selected by people, the consultative and supervisory aspect and the membership of minorities. However, the local councils differ in terms of the limits of legislation, competency, publicity, cancellation of membership and dissolution. Therefore, the local councils are considered as the entity with just consultative and cooperative nature and without the least supervisory or decision making and governance power.

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.

The right to a healthy environment reflects fundamental values such as the right to life, the right to health, and the right to a standard and quality of life that belongs to different generations of humans in the present and future. Trawel net fishing has been carried out in the Persian Gulf for some time, which, according to experts, violates the right to a healthy environment and its fundamental values. In trawel net fishing, a large fish trapping net in the shape of a bag is used, which is attached to the back of a floating vessel and catches marine organisms at different depths with a coverage coefficient of 90%, causing serious damage to the marine ecosystem. Preservation of the environment is done by supporting the protection and improvement of the environment and preventing and preventing any kind of pollution and destructive actions that cause the balance and suitability of the environment to be disturbed. Preservation of various animal species, including aquatic animals, is an example of environmental protection.In this research, we aim to answer the question through a descriptive and library method of investigation, whether it is possible to impose restrictions or prohibitions on this type of fishing in the Iranian legal system. Which laws and regulations can be relied upon to address the damage caused by trammel net fishing to the environment and natural resources? To this end, the constitution, ordinary laws, and regulations are first examined, followed by the general policies of the Islamic Republic of Iran,

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.

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.

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.

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.

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.

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.

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.