جستجوی مقالات مرتبط با کلیدواژه « judicial review » در نشریات گروه « فقه و حقوق »

Relativity in needs besides flexibility in citizens expectations, quality and amount of serving public services lead to emergence of a control mechanism on serving system. complying public services with requirements, known as "public service serving principles" is a prerequisite to managing them. Moreover, the importance of the continuity principle, requires a ceaseless reach to public services which guarantees both public order and public interest’s realization in society. Accordingly, establishing a court of justice to orientate of public service principles to external serving forms seems necessary. Because of particular nature of public services in administrative law, the scope this paper has been focused on is the quality of judicial review of Iranian supreme administrative court. Consequently, Invoking serving public service principles (namely Principle of Equality, Neutrality, Principle of Continuity of Public Service) in Iranian supreme administrative court jurisdiction indicates accordance of this court jurisprudence and approach with above-mentioned principles

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.

AbstractOne of the legal doctrines that has been noticed since the last century and its implementation has solved many judicial problems, is the doctrine of "Exhaustion of Administrative Remedies". According to this doctrine, which indicates the necessity of administrative proceedings before judicial proceedings, all possible administrative steps must be completed to deal with the requests of individuals before the case is submitted to the judicial authorities. Therefore, the present article, which is written in a descriptive-functional way, seeks to answer the question that what are the advantages and disadvantages of the discussed doctrine and what is its position in Iran's legal system? For this purpose, after examining the concept and advantages and disadvantages of this doctrine, Article 16- 4 and Article 48 of the Administrative Court Law (approved in 1402) were discussed as the most important articles that recognized this doctrine and finally in the "Conclusion" section, a correction proposal has been presented for better implementation of this doctrine.

Welfare rights, by providing a minimum of an honorable life, have a significant role in the development of mankind. On the other hand, without welfare rights, civil and political rights remain abstract freedoms. Thus, we must also ensure and protect the rights in addition to recognizing them. Otherwise, they are only claims and nothing more. Therefore, the existence of a judicial authority that acts as a guarantor to the implementation of an individual's welfare rights before the administrative apparatus is inevitable in any legal system so that people can sue in order to restore their rights. In other words, welfare rights, including the right to social security, the right to education, the right to employment, equality, and non-discrimination, require judicial authority to ensure their realization. In the Iranian legal system, according to Article 173 of the Constitution, the Administrative Justice Court is recognized as a special authority for dealing with grievances and objections of all persons to the actions and decisions of administrative bodies, which, through the handling of complaints, guarantees the rights of individuals. Therefore, in this study, which has been done by the analytical-descriptive method and by analyzing the contents of books, articles, and opinions of the General Assembly of the Administrative Justice Court, we will seek an answer to the question of the performance of the Administrative Justice Court in the position of judicial supervision. What is the purpose of guaranteeing welfare rights in the Iranian legal system?

In recent decades, the legal and political systems of the world have faced the expansion of judicial power and the increase in the intervention of courts in matters that were not necessarily legal and judicial in nature but were completely related to mega-politics. This phenomenon is called “judicialization of politics”. Considering the limits of judicial competences in the form of a constitutional review, the present research has first examined the political issue and tried to examine the relationship between the two and its place in contemporary legal and judicial approaches while examining the various dimensions of judicialization. Finally, this article has concluded that, on the one hand, the judicialization of politics leads to the weakening of the boundaries of the separation of powers, but on the other hand, it can be said that judicial intervention as a mechanism of monitoring and guaranteeing transparency leads to the improvement of regulation and more quality and legal administration. In the end, it seems that what we are witnessing today as the judicialization of politics is the product of the expansion of sovereign powers to all powers, which has led to the role of the judiciary as much as the legislature and the executive in mega-politics affairs.

According to articles 34, 159 and 173 of the Constitution, it is the right of individuals to sue and anyone can refer to judicial authorities; However, the Supreme Council of the Cultural Revolution has removed some decisions issued in the field of education and research from the jurisdiction of the judicial authorities and placed them under the jurisdiction of the Supreme Council.This resolution has a subject departure from the competences of the Supreme Council of Cultural Revolution; Because limiting the jurisdiction of judicial authorities is not an example of educational and research matters. Another thing is that assuming the acceptance of the Supreme Appeals Board of Ministers as a administrative turbinals , the necessity of judicial review according to the views of the Constitutional Council and legal principles is obvious, and not complying with it is a violation of the right of citizens to access judicial authorities.Considering the basic uncertainties regarding the Resolution 630, the branches of the Court of Administrative Justice have different approaches in dealing with this resolution. Some branches, referring to Resolution 630, have issued a decree of incompetence in considering the decisions of the boards, and some branches have not accepted Resolution 630, arguing that according to Article 170 of the Constitution, judges are obliged not to implement illegal resolutions. In order to solve the problem and avoid people's confusion, the cheapest and fastest solution is to issue a unanimous decision by the General Board of the Administrative Court of Justice on this issue.

According to paragraph 12 of the general policies of the administrative system based on attention to effectiveness and efficiency in administrative processes and methods, with the aim of decriminalizing and reducing the referrals of executive bodies to judicial authorities for quick and free resolution of disputes between executive bodies, both national and provincial, in accordance with Article 134 The Constitution, based on the regulations on how to resolve disputes, the laws and regulations of the country's annual budget, the laws of the fourth and fifth development programs of the country, and the law regulating part of the government's financial regulations. In 2016, the Council of Ministers approved the regulations on how to resolve disputes between executive bodies. According to Article 3 of this regulation, disputes between the provincial institutions that are not resolved by the heads of the aforementioned institutions by using their legal powers, will be referred to the governor to be decided within the limits of his legal powers and the solutions provided in the laws. The main question in this research is what is the role of the governor in the process of resolving disputes between executive bodies? According to existing regulations in cases where the resolution of these disputes requires the decision of the Board of Ministers, the issue will be reflected by the Governor along with the documented and substantiated theory of the Governor to the Legal Vice President and with the proposal of the said Vice President along with the legal theory.

The Iranian Competition Law has been introduced under the General Policy Implementation Law of Article 44  of the Constitution. One of the major issues in competition law is the competition body. There are such institutions in different countries, from countries with a long history of competition law, such as the United States, to countries in the Middle East. In Iran, the Competition Council is the only nationally-recognized authority to review anti-competitive practices and has the authority to make various and important decisions. Because these decisions can seriously affect the rights of stakeholders and economic actors, it is necessary to monitor and control their decisions. Due to its paramount importance and existing disagreement, competence of the Administrative Court of Justice in exercising judicial review over the decisions of the Competition Council and its Appeal Board will be investigated in the present study. The research method is descriptive-analytical. Results of the study indicate that to identify the authority competent to exercise judicial review over the competition council, one should pay attention to the structure and nature of the said council and the type of its decisions. The conclusion of the article is that the Administrative Court of Justice has the authority to exercise judicial review over general decisions, case decisions and the decisions and opinions of the Competition Council in the capacity of dealing with anti-competitive procedures. Moreover, the decisions of the Appeal Board of the Competition Council as well as the decisions and actions of the National Competition Center and their officials are subject to judicial review and criminal prosecution of the court.

Article 489 of the Iranian Civil Procedure (ICP) provides that an arbitration award in conflict with constitutive laws will be null and void and unenforceable; however, neither the ICP nor any other act established the concept and the instances of such laws and the scope of judicial review or supervision over their enforcement. Under these circumstances, the best approach to identify constitutive laws is through a case-by-case approach. A justice should examine what law has been violated by an arbitrator and whether or not this law, based on the governing situations, directly or indirectly results in limiting or extinguishing a right. A court’s review of this matter may take place upon service or enforcement of or appeal to an arbitration award. The review is only a brief one over the first two stages but takes a more complete form over the third stage. However, even in this third stage, the court may not intervene into questions of fact addressed by the arbitrator, except for special cases.

Restoration of the procedure is one of the most extraordinary ways of complaining of definitive opinions (legal procedure), and the legislator anticipates conceivable possibilities that may occur after the issuance of a definitive decree to prevent the execution of a wrongful judgment or conflicting or conflicting rulings or sentences Based on false documents or false testimony, or to consider reasons subsequently obtained, indicating innocent convict, or disproportionate punishment or non-offending action (one of the cases referred to in Article 474 of the Criminal Procedure Code), the authority to review and prescribe re-examination Filed the case with the Supreme Court. Often, after any definitive criminal conviction, even if it is issued with a clear conviction against the verdict, it is also alleged to have been sentenced to trial by the Supreme Court of the State with a claim of torture or mental imbalance.Because the moratorium is unpredictable for this request, at any time, even after execution, the convicted offender can be verifiable. Usually convicted because he or she is often unaware of the rules governing reinstatement, or to try to test the odds and the likelihood of admitting a lawsuit, however, repeats its repeated requests. Due to the high volume of these cases and the limits of the Supreme Court branches and the urgency of handling cases and the strengths and weaknesses of this establishment, it needs to be investigated in judicial proceedings. The findings indicate that most of the requests for reinstatement in respect of non-compliance with Article The above is rejected by the Supreme Court.

Comparative Administrative law is a difficult subject. It is necessary to steer a course between the assumption that all systems are singular, shaped by a plethora of distinctive features that are never replicated elsewhere; and the equally extreme assumption that differences are merely on the surface, such that if propositions are stated at a sufficiently abstract level, then there will be commonality between all systems. The ascription of cause and effect when considering the rationale for differences is equally challenging, and is the principal focus of this review article, which considers the strengths and weaknesses of a structural explanation for divergence in administrative law in different countries.Study of comparative administrative law reveals commonality and difference between the systems studied. That is axiomatic and self-evident. The depth of the resulting similarities and divergences may be difficult to estimate, the explanation for them even more so.

Error is instances of illegality,although there is a strong belief in the validity of the act,but judicial review of it can be accompanied by enforcement and judicial remedies.The court,in addition to the Certiorari in error of law  cases in the verdict,can replace the true decision.The prohibitory order can only be made after the decision has been made by the public authority in order to prevent its execution.The mandatory order is best when public officials,as a result of inaccurate interpretation of their legal jurisdiction,disqualify them from exercising their jurisdiction,requiring their judicial authority to enforce or refuse to enforce legal jurisdiction or to re-examine it.The injunction for preventing a public official Use of the action in an illegal manner or out of the scope of his authority or obligation to perform his duty.The judicial declaration be used to declare that a decision or action by an official is illegal and outside of the scope of the mandate,including the announcement of a forward-looking judicial statement indicating the correct meaning of the legal regulation,Preventing the receiver from making similar errors in the future.Compensation has been imposed on the General Court after the occurrence of the violation.

According to Article 170 of the Constitution, judges of courts are obliged to refrain from enforcing regulations contrary to Islamic laws and regulations. In the form of descriptive-analytical research, based on the application of the phrase "judges of courts" in this principle, the Statute of the Administrative Court of Justice in the Iranian judicial system and the procedure of that Court, proved that the judges of the branches of the Administrative Court of Justice are subject to this principle and obliged to refrain from enforcing such during their proceedings. In this regard, according to Article 11 of “the 2013 Law on the Organization and Procedure of the Administrative Justice Court” that obligated the convicts in the branches of this courts to observe the provisions of the court's decision in their subsequent decisions and actions, it was concluded that, contrary to the supervision of other judges, if the judges of the branches of the Administrative Justice Court find the regulations to be contrary to the Islamic laws and regulations, in some cases it will be possible to invalidate them in general, which was referred to as the "implicit Revocation of Government regulations". However, this situation is inconsistent with the interpretive competence of other judges of the courts in Article 73 and the wording of Article 170, which states that "the effect of the supervision of the judges of the courts is occasional".

The State in the general sense is competent to make binding decisions to protect the public interest, on behalf of the people in response to the events of social life. One of the issues that governments have responded in the last two centuries in various forms such as lawmaking, adoptions of economic policies and the issuance of judicial rulings has been economic crises. Given the impact of judicial rulings on resource allocation and the effectiveness of government economic policies and its constructive role in achieving the rule of law, it is important to provide an analysis of the fluctuations and characteristics of judicial rulings in times of significant economic crisis; Therefore, in this article, by examining the rulings of the Court of Administrative Justice during the currency crisis of the 1990s and the current economic crisis in Iran, it is intended to provide an appropriate analysis for the above question. The results of these studies indicate that in times of economic crisis, the performance of the Administrative Court of Justice is very significant and this issue is due to the excessive intervention of executive bodies through overregulation. The Administrative Court of Justice is also negligent for not considering the fact that the occurrence of economic crisis is the main cause of overregulation.

Legislative authorities have determined a referee called the Disciplinary Council of Construction Engineering Organization to investigate the guild violations committed by construction engineers. From the point of view of the principles of public law, the constitution as well as the views of the Guardians Council, judicial review on this council is necessary. However, the legislator has not specified any competent court as the reference of judicial review on the Disciplinary Council of Construction Engineering Organization. In the judiciary as well, pointing to the non-governmental nature of the Construction Engineering Organization, the Public Board of the Administrative Justice Court has not approved the competency of this court to investigate the decisions made by the Disciplinary Council of that Organization. In addition to, the Public Board of the Supreme Court did not consider the decisions of the Disciplinary Council of the Engineering System Organization to be subject to appeal in courts, citing the word "certainty" authorized in Article 24 of the Engineering System Law. Now the question is what is the legal solution to solve this legal and judicial challenge? Regarding the resulted condition, it is suggested for the Public Board of the Supreme Court to modify its already adopted approach to “the certainty of the decisions of this administrative tribunals” in the new decisions about the united practice; because this approach contradicts the religious, constitutional law, and the staute. Certainty of these rules refers to the certainty of administrative and executive procedure and cannot be generalized to judicial certainty. In the second step, as a long-term plan, the Administrative Justice Court should be recognized as a competent reference to investigate the complaints about the decisions of all the administrative tribunals. This procedure is more adapted to the concept of administrative proceeding. Therefore, with modification of the rules,

General Assembly of Supreme Court in its Judgment for Unification No 786 said that the opinion of Disciplinary Council of Order of Engineering and Building Controlling, in contrast with procedural and accepted terminology, is definitive and enforceable because the term “definitive” is free from any restriction (absolute). The assembly has provoked to Principle number 159 of Constitution and so to article 24 of The Act of Order of Engineering and Building Controlling. This judgment is obviously contrary to our constitutional law and our jurisprudence as well as it is incorrect, inconsistence with principle. In fact, the meaning of word “definitive” should be understood by wisdom and literal interpretation of that word is not binding. Also the Judicial function cannot be entrusted to non-judicial bodies unless the justiciable have had the right to action in independent tribunal as their constitutional rights provided. Judicial Review according to Principle 157 of our Constitution and specially for controlling the good administration of justice in non-judicial bodies is overriding.

The discretionary power theory in England administrative law through judicial decisions and precedents has been developed. Despite the traditional and pessimistic approach to this institution, the discretionary power theory is one of important tool for ensuring the correct and logical decisions. Traditionally based on the Dicey approach discretionary power, means as administrative tyranny. Nowadays the discretionary power can be interpreted as justice or as arbitrariness. In this paper we endeavor introduce the position and conceptual extent of discretionary power theory in the England public Law. So at first the concept and scope of discretionary power has been studied and then present types of discretion, judiciary control aspects, and the development of judiciary policies in England. The principal hypothesis of this study based on the reproduction new concept of discretionary powers. In conclusion we can say that in modern administrative law the discretionary powers not good or bad per se.Key words: Discretionary Power, UK Administrative law, Discretion, Judicial review, Abuse of power, Iranian Law.

Error of law of an administrative official means ignorance of the law in the sense that the administrative official has a misunderstanding of the law or gives an interpretation contrary to the purpose of the legislator. But the important issue is how the judicial review occurre. In English law, in the traditional approach, only jurisdictional errors and error of law on the face of the record were reviewable from all types of Intra vires errors, but in the new approach, error of law in the broad sense of ultra vires is one of the causes of judicial review and was abrogated the distinction between jurisdictional and non-jurisdictional; so all the errors of law are reviewable. In French law, all types of administrative official’s error of law are reviewable, too. In Iranian administrative law, judicial review on error of law has not been explicitly provided, but it seems that it is possible to use the two bases that provided in the law for judicial review: "legality" and "departure from the limits of authority", although this is not same in the competence of the General Assembly and the branches. In the present research, by studying England and France legal systems in judicial review on error of law, rules and judicial procedure of Iran have been studied and to Identify this concept and judicial review on it, a solution from other legal systems is presented to provide the possibility of judicial review of the administrative official’s error of law in the administrative law of Iran in full.

The process of acquisition of land in English and Iranian law takes place under a specific procedure that may be questioned for validity. One type of the examining of objection is judicial review, which is high supervisory, will be applied in such manner that all actions will be in accordance with the elements that are necessary for acquisition. The source of the judicial review is different between English jurisprudence, so three views have been put forward on the subject that compilation of ultra vires doctrine with common law, has excelled. But in Iran, despite judicial precedent effort, the law-based view remains dominant. The English judicial precedent has also taken appropriate steps in the development of this theory in the law of acquisition of land and has outlined various ways in motives of judicial review; substantive ultra vires and procedural ultra vires, infringement human rights, legitimate expectation, natural justice, proportionality, unreasonableness. However, the English judicial precedent has made some exceptions as general policies of the country. The major of decisions in judicial review in acquisition of land, are in the form of quash. However, there are some cases in the English judicial precedent that have been cited another decision.

Administrative official’s abuse of power and error are types of illegality as one of the causes of judicial review in the legal systems of England, France and Iran, that in which an official, despite the legal power and action within its jurisdiction and in accordance with the appearance of the law, but he breaks the law within his jurisdiction; therefore, the content of the decision, its motive and purpose must be examined. The important issue in this research is that, given the unitary basis of these two concepts in judicial review, how can a judicial reviewer makes difference between these two concepts in the context of judicial review. It seems to distinguish between these two concepts through judicial review, it is necessary to consider the definitions of these concepts; in this research by descriptive –analytical review method and comparative study, these two concepts were studied in the legal systems of England, France and Iran and in conclusion the difference between the two concepts in judicial review are resulted from conceptual differences;  in this way that one of the essential elements in the abuse of power is the failure to fulfill the intended purpose of the legislator, despite the knowledge of the goal of the legislator and the deliberate failure to implement it; Now, what is its purpose and motive for providing personal interests such as private gain, third party benefit ,or for personal retaliation or for the purpose of generating public benefit, but in error, the administrative official exercises this power in a non-purposeful manner, against the legislator intend, and believes that a strong suspicion of the correctness of his actions and the correctness of his imagination