جستجوی مقالات مرتبط با کلیدواژه « Guardian Council » در نشریات گروه « فقه و حقوق »

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.

According to article 85 of the constitution of the Islamic Republic of Iran  the Islamic Consultative Assembly can delegate the authority to permanently approve the statutes of organizations, companies, government or government-affiliated institutions to the government. The nature of delegated approvals to the government as well as how it is exercised by the government, which was added to article 85 in the process of amending the constitution in 1368; is ambiguous from a legal point of view. In this regard, this paper, using a descriptive-analytical method in studying the data collected from library resources, seeks to answer that what the limits of competent authorities and monitoring institutions in the process of approving statutes by the government based on article 85 are? It seems that the constitutional approvals of the board of ministers are considered as regulations in the Iranian legal system. Nevertheless, the amendment of the said statutes should be sent to the Guardian Council, without the need for a new permission from the Islamic consultative assembly. Also, despite the fact that the Guardian Council is not obliged to comply with the deadlines set in principles 94 and 95 of the constitution in reviewing the constitutional approvals of the government, it seems important and necessary to set a deadline in this regard in order to complete the process of principle 85 of the constitution. Another thing is that it is not possible to insist on the constitutional approvals of the government due to the principle of lack of jurisdiction in the field of public law and the non-inclusion of article 112 of the constitution regarding government approvals; although the government can take advantage of the capacity of article 112 by pursuing the approval of the statutes through the bill.

The nature and origin of laws is a topic that has been the subject of serious discussions, especially in the new era, and there are different opinions about it. In the Islamic view, which can be seen in the Constitution of the Islamic Republic of Iran, Sharia is the main source of legislation, and laws that do not conflict with Sharia rules and standards are legitimate. However, in many Islamic countries, despite the existence of religious relations, influenced by secular currents, the confrontation with Sharia has taken a separate path, which has led to serious differences in the field of legislative competence and decision-making regarding Sharia rulings. This paper, tries to analyze the strengths and weaknesses of the Sharia monitoring system of Iran's laws and regulations in terms of "the place of Sharia in the constitution", "the investigating institution" and "the review of the monitoring procedure" using a descriptive-analytical method. Guardian Council in Iran and the Supreme Constitutional Court in Egypt are responsible for this type of supervision, in which the Supreme Constitutional Court of Egypt, with a passive and limited approach to the laws, approves the parliament only in order to comply with the general principles of Sharia law. It evaluates specific criteria and in a judicial process

There have been and still are many approaches among jurists in how to interpret the constitution, which are generally divided under the two general headings of originalist and non-originalist. One of the sub-branches of non-originarianism is called the Purposive interpretive approach, in which the goals of writing the law are extracted from the text and other sources and interpreted based on the goals and values governing the constitution. On the other hand, one of the fundamental goals of the Constitution of the Islamic Republic of Iran is the rule of Sharia standards over legal norms and other acts and legal situations. The main question of the current research is about the possibility or refusal to identify the goal of Sharia rule by adopting the interpretive approach of finalism in the interpretation of the Constitution and its efficiency compared to other interpretive approaches. The findings of the research using the descriptive-analytical method and using library sources indicate that the Guardian Council in its interpretive comments regarding "Sharia supervision of laws and regulations from the judiciary", "permission to receive compensation for late payment from foreign parties", "Inclusion of the concept of Sharia standards in secondary rulings" and "Effective time of revocation of anti-Sharia approvals" have benefited from this interpretation approach. Also, in this approach, new interpretations can be issued such as "the ability to delegate Shariah supervision", "Shariah supervision over the approvals of institutions established by the leadership's decree" and "Shariah supervision over the approvals of the Expediency Council."

Article number four of the constitution, which has dominance above other principles of the constitution, is the most important means of Shariah supervision of the Guardian Council over "regulations", the mechanism of which is explained in the law of formations and the procedure of the court of administrative justice. By studying the opinions of the Guardian Council, this article analyzes the procedure of the Court, among approximately 1,300 petitions, where more than 200 of which have been declared by the Jurisprudence of the Guardian Council to be inconsistent with Shariah. The question that can be raised is whether the court's procedure has been able to give effect outcome to all the shariah opinions of the council. The current procedure of the Court's proceedings shows that in some cases, the Court has not been able to apply the opinions of the jurists of the mentioned council. Also, a critical question can be asked, what are the shortcomings of the Guardian Council in guaranteeing Shariah supervision of government regulations? It should be noted that despite the existence of research on the limits of the jurisdiction of the Administrative Court of Justice, no independent research has been conducted on this issue. In this article, choosing a descriptive-analytical method, we analyze the propositions and existing mechanisms for applying this supervision. Also, suggestions are made to create a clear procedure for applying Shariah opinions of the Council to cancel the approvals against the Shariah and reduce the approval of such enactments.

The legal framework within which public and private entities operate is foundational to their legitimacy and functionality. This analysis delves into the specific realm of "Government-Approved Statutes" within the Islamic Republic of Iran, focusing on the legislative nature of these documents and the oversight mechanisms in place. The statutes in question are essential for the operation, duties, and authorities of legal persons and entities, both governmental and non-governmental. Their importance is underscored by the requirement for such statutes as a prerequisite for the registration and formal recognition of companies. This study is particularly concerned with statutes related to government and government-affiliated organizations, given their significant impact on the country's administrative system and citizens' rights. The legislative framework for these statutes was established under Article (85) of the Iranian Constitution in 1989, allowing for the delegation of statute approval to relevant commissions of parliament or directly to the government. This research aims to elucidate the nature of these statutes, the processes involved in their amendment or modification, and the authorities responsible for their oversight.

The primary inquiries of this study revolve around three pivotal questions:     - What is the nature of the statutes whose approval has been delegated by the Islamic Consultative Assembly to the Government of the Islamic Republic of Iran?
     - How are these statutes amended or modified?
     - Which authorities are tasked with overseeing these statutes?
     These questions aim to uncover the legislative and operational dynamics of government-approved statutes and the institutional checks and balances that govern them.

This research operates under the hypothesis that the statutes approved by the Parliament and delegated to the government for oversight are essentially "governmental decrees." As such, they are posited to fall under the scrutiny of the Guardian Council, the Speaker of the Parliament, and the court of administrative justice, according to the principles laid out in the Constitution of Iran. This hypothesis suggests a structured mechanism of oversight and amendment, ensuring that these statutes align with constitutional mandates and effectively serve their intended purpose within the legal and administrative framework of the country.

The methodology adopted for this research is descriptive-analytical, utilizing a comprehensive review of library sources alongside a detailed examination of legal practices in Iran. This approach involves an analysis of documentation from the Guardian Council, the court of administrative justice, the Islamic Consultative Assembly (Parliament), and the cabinet. The study also reviews the historical background and discussions surrounding the approval of article (85) of the constitution, aiming to provide a clear understanding of the legislative intent and the practical application of these statutes. This framework allows for a thorough exploration of the statutes' nature, the process of their amendment or modification, and the extent and quality of their oversight by designated authorities.
     By systematically addressing the research questions and hypothesis through this methodology, the study seeks to contribute novel insights into the legislative nature of government-approved statutes in Iran and the oversight mechanisms that ensure their alignment with constitutional and legal principles. The findings of this research are anticipated to have significant implications for the understanding of legal governance and administrative oversight in the context of Iranian law, with potential broader applications in comparative legal studies.

The investigation into the nature and oversight of "Government-Approved Statutes" within the Islamic Republic of Iran reveals several key findings, grounded in the constitutional provisions, particularly article (85). The distinction drawn by the constitutional review council between the legislative authority of the Parliament and the delegated approval powers for statutes of governmental organizations and companies underscores a nuanced approach to legislative delegation. This delegation is justified by practical needs for expedited approval processes, the complexity of statutes, the necessity for content coherence, and confidentiality concerns in certain cases.
     The analysis delineates the approval of statutes by the cabinet under article (85) as constituting "governmental decrees" rather than conventional laws or legal statutes. This classification has profound implications for the oversight mechanisms applicable to these decrees. The dual oversight by the Guardian Council for conformity with Sharia and the Constitution, and by the Speaker of the Parliament for alignment with ordinary laws, is complemented by the jurisdiction of the court of administrative justice. This court's practice underscores a layered oversight model, where it primarily addresses issues related to the execution of laws, jurisdictional overreach, and the protection of rights, without encroaching on the purviews reserved for the Guardian Council or the interpretation of Sharia and constitutional compliance.
     The study highlights a significant operational challenge within the oversight framework, particularly the potential for conflicting interpretations between the Speaker of the Parliament and the court of administrative justice rulings. Such conflicts can lead to ambiguity and confusion within the executive branch, underscoring the necessity for legislative refinement. The "Law on the Implementation of articles (85) and (138) of the Constitution of Iran" is identified as requiring amendments to introduce clear deadlines for the Speaker of the Parliament's opinions, aiming to mitigate the risks of operational discord among governmental agencies.

The findings of this research elucidate the intricate nature of "Government-Approved Statutes" in Iran and the sophisticated oversight framework designed to ensure their conformity with the broader legal and constitutional framework. The statutes approved by the Cabinet under Article (85) embody a distinct category of governmental decrees, necessitating a multifaceted oversight mechanism involving the Guardian Council, the Speaker of the Parliament, and the court of administrative justice. This oversight is pivotal in maintaining the decrees' alignment with Sharia, the Constitution, and ordinary laws, while also safeguarding individual and institutional rights against governmental overreach and misinterpretation of powers.
     However, the research identifies critical areas for improvement within this oversight structure, particularly the need for clearer procedural guidelines to resolve potential conflicts between oversight authorities. The recommendation for legislative amendments to specify a deadline for the Speaker of the Parliament's opinion is a constructive step towards enhancing the clarity and efficiency of the oversight process. Moreover, the study advocates for a comprehensive review and redefinition of the oversight scope by the involved authorities to address the evolving challenges within Iran's legal and administrative landscape.
     In sum, while the legal framework for "Government-Approved Statutes" in Iran is robust, navigating its complexities requires ongoing attention to detail, legislative refinement, and an adaptive approach to oversight. This research contributes to a deeper understanding of the statutory approval and oversight processes, offering insights that are pertinent not only to legal scholars and practitioners but also to policymakers engaged in the refinement of Iran's legislative and administrative systems.

The modern democratic framework is underpinned by the concept of representation, particularly within the realm of public finance. Central to this concept is the principle that any imposition of taxation must be sanctioned by the representatives of the people, establishing a foundation for governmental accountability in financial and budgetary matters to the parliament. The role of parliamentary oversight, executed by supervisory organizations like the "National Supreme Audit Institutions," is pivotal in ensuring transparency and adherence to financial regulations. This study aims to unravel the intricate relationship between the theoretical foundations and practical procedures that delineate the jurisdiction of the Iranian Supreme Audit Court of Iran, tracing its historical origins and examining its evolution through legislative procedures.

Research Question:

This research endeavors to address a fundamental question: what are the challenges and requirements constraining the Supreme Audit Court's oversight of the government's financial performance in the current legal system of Iran? By scrutinizing the legal constraints imposed on the court since the Iranian Constitutional Revolution [Asr-e-Mashrooteh] and exploring their impact on the Court's goals post the Islamic Revolution, this study seeks to uncover the nuanced dynamics shaping the institution's jurisdiction.

Research Hypothesis:

The research is grounded in the hypothesis that misunderstandings inherited from the Constitutional Era regarding the functions and duties of the Supreme Audit Court, coupled with the post-revolutionary Constitutional Council's inability to rectify these misconceptions, have resulted in the exclusion of a significant portion of public treasury resources from the Court's oversight. This exclusion has relegated financial supervision to the considerations of the national budget. The overarching hypothesis posits that a comprehensive oversight role for the Supreme Audit Court over the entire public treasury is an imperative that has been neglected.

Methodology & Framework, if Applicable:

The methodology employed in this research is primarily descriptive-analytical. Drawing on extensive library documents, legal texts, and scientific and legal procedures, the study meticulously examines the evolution of the Supreme Audit Court's jurisdiction from its establishment to the present. A thorough exploration of legislative procedures, both constitional and ordinary, is undertaken to unravel ambiguities and challenges in depicting the relationship between the Court's goals and the obligation of audited institutions. The framework of analysis is rooted in the examination of intellectual-legal backgrounds, with a focus on understanding the theoretical foundations and practical procedures that have shaped the court's jurisdiction.
     The study aims to provide a comprehensive overview of the challenges and limitations faced by the Supreme Audit Court in its financial oversight activities. Notably, it seeks to identify essential requirements governing the court's jurisdiction and evaluate the impact of historical legal constraints on its ability to achieve the lofty goals envisioned by the framers of the Persian Constitutional Amendment of 1907 and the Constitution of the Islamic Republic of Iran.
     We will delve into the detailed results and discussions of the research findings, followed by a conclusive synthesis of the identified challenges and potential avenues for reform within the jurisdiction of the Supreme Audit Court of Iran.

The historical trajectory of the Supreme Audit Court of Iran reveals a complex evolution marked by significant jurisdictional fluctuations. Established under the principles (101) and (103) of the Persian Constitutional Amendment of 1907, the Court initially operated under the supervision of the Ministry of Finance. However, the lack of expertise among its founders, coupled with inadequate awareness and the influence of translated texts and Western models, resulted in inefficiencies. Notably, the Court's supervisory position over the government's financial affairs was transferred to the internal auditor of the executive branch in the 1352 SH amendments to the Audit Court Law. The inefficiencies persisted due to the absence of systematic accountability and regular financial management responsiveness by the political-administrative currents of the time.
     Post the Islamic Revolution in Iran in 1357 SH, the Court's fundamental role as the guardian of the public treasury was preserved within the Islamic framework. However, deficiencies in the regulatory text of Article (55) of the Constitution of the Islamic Republic of Iran hindered the complete establishment of the Court's role. Challenges emerged, including the interpretative theory of the Guardian Council, leading to the exclusion of a significant portion of the public treasury's financial resources from the Court's oversight.
     Despite interpretative theories, it is argued that the term "approved credits" mentioned in Article (55) may be confined to the overall national budget, but limiting the jurisdiction of the Supreme Audit Court in addressing these matters is deemed unacceptable. This potential limitation not only casts doubt on the legal functions of the Court but fundamentally challenges its legal personality in safeguarding the public treasury. The conflict between constitutional principles and provisions of current Audit Court laws raises substantial concerns regarding the Court's ability to fulfill its supervisory role effectively.

The journey of the Supreme Audit Court of Iran reflects the intricate interplay between historical developments, constitutional principles, and evolving legislative frameworks. While the Court's establishment aimed to be an independent and comprehensive supervisor of the country's income and expenditure, its early inefficiencies, rooted in a lack of expertise and awareness, led to jurisdictional adjustments over time. The post-revolution preservation of the Court's role as the guardian of the public treasury encountered challenges due to deficiencies in the constitutional text.
     The research underscores the need for clarity and precision in delineating the foundations and limits of the audit jurisdiction of the Supreme Audit Court. The recommendation is put forth that Article (55) of the Constitution of the Islamic Republic of Iran be revised, transferring these matters to ordinary law. This move, it is argued, will enable a more specialized, detailed, and non-constitutional approach to defining the Court's audit jurisdiction. Such a step is imperative to address the identified challenges, ensuring the Court can effectively fulfill its role as a vital safeguard of the public treasury within the evolving legal landscape of Iran.

The fourth principle of the constitution is to guarantee the rule of Sharia in Iran's legal system. The automatic supervision of the Guardian Council on the approvals of the Parliament in advance shows the importance of proportionality between Sharia and the law. The annulment of a government regulation due to its contradiction with the Sharia is beyond the jurisdiction of the Court of Administrative Justice. It is enough to state clearly that "if it is not against the law, it is not against Sharia" and the final decision is left to the Court of Administrative Justice. The correct analysis of this sentence shows the basic judge's view on the concept of law. Despite the strong disagreement among jurists about the nature of the law and its sphere of influence, in cases where it is written. The Shura's reference to the approved laws indicates that the later law It is a declaration of non-contradiction with the Sharia as a government ruling. Refraining from expressing an explicit opinion, especially in matters that are a product of the modern world, such as taxes, social security, etc., is not compatible with the dynamics of jurisprudence. Transparency in the declaratory judgment is considered one of the important principles of the proceedings, which provides the possibility of persuasion and preventing the re-approval of the illegal provision.

In determining the meaning of texts, including legal and constitutional texts, several interpretive schools such as source-oriented, author-oriented, metaphysical and interpretive can be identified. In the meantime, authorism and textualism is a view that has been the dominant interpretive theory in most legal systems for centuries and is still more or less considered in many legal systems (such as Iran and the United States). The interpretation of the constitution in the author-oriented theory of the intentions and behavior of the legislator indicates that this issue is derived from the school of originism. This theory has been accepted in the principles of Shiite jurisprudence as well as the view of the members of the Guardian Council as a correct and official theory. In the system of the Islamic Republic of Iran, the Guardian Council, which has various powers and duties according to the constitution, has been introduced as the official interpreter of the constitution. Article (98) of the Constitution stipulates in this regard: "The interpretation of the Constitution is the responsibility of the Guardian Council, which is done with the approval of three quarters of them." In this regard, from the beginning of the Guardian Council, continuously and of course with The council has expressed views on the interpretation of the principles of the constitution, known as "interpretive views." The question raised in this research is whether the existence of 6 members of the Guardian Council has an effect on the use of these schools of interpretation or not? Of course, according to the regulations, a limited number of officials have the opportunity to ask the Guardian Council to interpret the constitution.

Guardian council is one of the important institutions in the Islamic republic of Iran. this institution is the achievement of effective thinkers in Islamic revolution and one of them is martyr Ayatollah Doctor Beheshti, that was inspired by the second principle of the amendment of the constitutionalism era’s constitution known as the »Taraz« principle and in order to prevent the approval of laws and regulations against the holy religious teachings of Islam was founded. in the present article, it has been tried to answer this question that what is the position & duties of the Guardian Council in martyr Beheshti's opinion by using descriptive - analytical method and using library sources and opinions of the lawyers and how can reach a correct opinion by paying attention to these ideas in the path of intentionalist interpretation regarding the duties of the Guardian Council. the results obtained from this paper show that from the viewpoint of martyr Beheshti, the guardian council has the position of Speech separation in the Islamic republic of Iran system and for this reason, it has a non-temporary authority in the field of evaluating laws and regulations from the point of view of religious and the opinion of the Guardian Council in the field of constitution's interpretation has the position of decisive Speech and other institutions do not have the right to make a legal comment on this matter.

The Iranian legal landscape is deeply rooted in Islamic principles, with the Constitution of the Islamic Republic of Iran enshrining many principles that affirm the integration of the legal system with Islamic norms. This integration is explicitly emphasized in the constitutional provisions, notably article 1, clause 12 of article 2, and particularly article 4. However, the practical implementation of Islamic laws in the Islamic Republic of Iran is entrusted to various legal and executive systems, with the Guardian Council holding a significant role. This council, in accordance with articles 4 and 96 of the Constitution, assumes the responsibility of ensuring that the legal and executive systems align with Islamic principles.
In every legal system, there exists a hierarchy of norms, necessitating the alignment of domestic regulations and laws with fundamental principles at the top of the legal hierarchy. In the context of the Islamic Republic of Iran, this alignment is particularly crucial when considering the approval of international treaties. The approval of such treaties in the country sets the stage for a confrontation between domestic and international legal systems. Any discordant interpretation of the foundations of these legal systems leads to distinct legal consequences for the nation. Therefore, understanding the relationship between domestic and international law in the Iranian legal system requires an examination of the Islamic perspective on the interaction between these two legal systems.

Research Question:

This study seeks to address the following central question: How does the Iranian legal system, guided by the Islamic perspective, manage the relationship between domestic and international law in the context of the approval of international treaties?

Research Hypothesis:

The hypothesis guiding this research is that the Islamic legal principles, as interpreted by the Guardian Council, emphasize the unity of domestic and international legal systems. Unlike contemporary legal systems, where distinctions between domestic and international laws are shaped by practical considerations, Islamic jurisprudence tends towards a unified legal system. This hypothesis is rooted in the understanding that the Islamic conception of state and governance differs significantly from modern concepts, resulting in a more unified legal framework.

Methodology & Framework, if Applicable:

This research employs a descriptive-analytical approach, utilizing library-based data collection methods. The focus of the study is on examining the legal framework governing international treaties in the Islamic Republic of Iran, with specific attention to the perspectives articulated by the Guardian Council. By delving into the Council's interpretations of international treaties, this research aims to shed light on the compatibility of these treaties with Islamic legal standards. The chosen methodology allows for an in-depth exploration of the legal and religious foundations that influence Iran's approach to international agreements, emphasizing the importance of ensuring conformity with Sharia principles.
In summary, this paper aims to elucidate the Guardian Council's role in evaluating the legal implications of international treaties in Iran, offering insights into how Islamic principles shape the nation's approach to both domestic and international legal frameworks.

International treaties and agreements, while fundamentally serving international interests, require integration and coherence with domestic laws according to each nation's legal system. In the Iranian context, international agreements remain independent until approved by the competent authorities in accordance with domestic laws. However, the shadow of their obligatory effects persists due to elements of international customary law, placing the nation's international commitments under its influence.
     Aligned with the principles of the Islamic Republic of Iran, where the sacred Sharia and the Constitution occupy the top tier of the legal hierarchy, ordinary laws and other domestic regulations occupy lower levels. Given the adherence to both domestic and international legal systems in the country's laws, international agreements cannot be exempt from this hierarchical structure. According to the Guardian Council's theories and its practices in reviewing international agreements, it emphasizes the necessity for international agreements to align with Sharia principles, akin to their conformity with ordinary parliamentary resolutions.
     Understanding these principles becomes doubly crucial when the subjects of international treaties concern private individuals subject to national laws. This is prominently observed in numerous judicial cooperation agreements, often incorporating criticisms and Sharia-based regulations from the Guardian Council in the examination of international documents.

In conclusion, international treaties and agreements in the Islamic Republic of Iran are subject to a meticulous evaluation process, guided by the principles articulated by the Guardian Council. The integration of these agreements with the domestic legal hierarchy underscores the unified approach that the Iranian legal system endeavors to maintain. The Guardian Council, guided by principles such as The “Negation of Domination” Rule [Nafy-e-Sabil], prohibition of referring to unjust rulers, rejection and acceptance of non-Islamic foreign laws, prohibition of usury, and the Sharia compatibility of pre-revolution treaties, has established a consistent pattern in its decisions.
     The study highlights the enduring significance of the Guardian Council's role in shaping Iran's international engagement, emphasizing the ongoing impact of its interpretations on various facets of international relations. As the Islamic Republic of Iran continues to navigate the global stage, the non-changing methodology of the Guardian Council in the realm of international documents signifies a steadfast commitment to its established approach. The study encourages ongoing scrutiny of the Guardian Council's influence in international agreements, anticipating that its decisions will continue to shape the nation's standing in the international arena for the foreseeable future.

Although it seems that the written document of the constitution regulates and controls the existing constitutional order in the written constitution countries, the reality is that "politics in progress" and existing political transactions are not only not fully under the control of the written document of the constitution, but even in some cases, politics has prevailed over rights and determines the way and direction of the implementation of legal norms. As a result, focusing on the form and format of the Constitution should not prevent the examination of the content and political realities in society. The present article, with a descriptive-analytical method and by studying the opinions of the Guardian Council and other available sources, seeks to answer the question that, does Iran's constitutional law function fully according to the written constitution? This study also tries to discover more about the legal or political nature of the basic order in Iran. The result of the research indicates that in Iran’s system of constitutional rights, unwritten and interpretable components link the written text of the constitution with some unwritten areas. On credit, Iran’s constitution is neither completely legal nor completely political, and has both written and unwritten aspects, and the opinions of the Guardian Council are a window to understand them.

Budget Acts are ordinary law and therefore should include items that are consistent with their title. Based on this feature, which is rooted in the principle of specialization of ordinary laws, only public revenues and expenditures should be included in budget acts. However, in some countries, such as Iran, the government and sometimes the legislature adde items to the bill that have nothing to do with budget or budgeting. Lack of knowledge of the scope of budget acts, the tendency of the government and parliament to legislate away from the control of the media and citizens, and the lack of a constitutional jurisdiction have been the three reasons for the emergence and spread of such a practice in the history of legislation. The emergence of the Guardian Council, with the approval of the 1979 constitution, provided the basis for better budget legislation. However, the findings of this study show that this institution, contrary to its model, the French Constitutional Council, could not eliminate the first two shortcomings because it could not extract, from the current budgeting laws, effective measures to identify the required, optional and prohibited scopes of budget acts.

The Constitution of the Islamic Republic of Iran has set the two highest reference norms of Sharia and the Constitution as the criteria for monitoring laws and regulations, which Sharia supervision is applied according to the fourth principle by the jurists of the Guardian Council. and other governing laws and regulations are used, that is, the Shariah supervision of the jurists of the Guardian Council is applied to the laws, but in this matter, in terms of the constitution, only supervision should be limited. With the opinion on the principles of the constitution, we find the interpretation opinions of the Guardian Council and the relevant laws and regulations Shariah and constitutional supervision of the Guardian Council regarding regulations, in addition to the fourth principle, the eighty-fifth principle applies to some regulations. However, most of the regulations are without a mechanism in terms of supervision to check the non-contradiction with Sharia and the Constitution. Regarding the monitoring of regulations in terms of contradictions with Sharia and the Constitution, we should refer to ordinary laws in addition to the 138th and 170th principles.

The fourth principle of the constitution stipulates that all laws must be based on Islamic principles and that it is the responsibility of the jurists of the Guardian Council to determine them. What has been discussed, is the judgement of the criterion of compliance of the laws with the legal criteria, considering the differences between the judgements of the pundits. One of the theories that can be proposed, which has not been studied so far, is the theory of easier judgement. The author tries to rewiew it for the first time in the position of a standard judgement. Among the foundations of this theory is the rule of “taisir”. The theory of easier judgement is examined with several criteria and it becomes clear that the theory due to lack of sufficient and necessary basis in Imami jurisprudence and insufficient use of characteristics such as: Comprehensiveness, acceptance among jurists and sufficient power in resolving interests and corruptions, do not have the necessary strength to be considered as a standard legislative judgement.However, it should be said that ease, considering its importance in Islam, can be considered as a rule for measuring and identifying standard judgement.

In Islamic government, legislation is one of the most important examples of application of guardianship [Velayat] to people, their honors and properties. Therefore, recognizing the standard Fatwa in this area is extremely important, since it will be the legitimacy test of the legislative’s actions. Considering that in the Age of Absence [of the Twelfth Imam] the right to apply guardianship has been assigned to a completely qualified jurist and assuming that a government has been formed, the making decision in social and governmental affairs (rulings of the Sultaniyeh [governance]) is the responsibility of the ruling jurist, the present article assumes that the standard Fatwa in legislation, which is the area of interference in social and governmental affairs, is the ruling jurist's Fatwa. With this assumption, this research, by re-investigating this basis in the opinions of constitutional judge, with a descriptive-analytical method and by examining the interpretive, consultative and comparative opinions of the Guardian Council, has come to this conclusion that several opinions from the constitutional judge support and strengthen the said assumption. On the other hand, this view that the Fatwa of Guardian Council’s jurist is the test for measuring the legitimacy of the Parliament’s enactments, can be interpreted as the confirmation of Constitutional Act by the ruling jurist and the assignment of supervision by him. Accepting this view will not only deprive the Guardian Council of the important task of supervising legislation, but also it will be a doubled emphasis on the necessity of satisfying some characteristics such as "justice", "awareness of the requirements of the time", "being a Muslim" and finally "expertise in various legal fields" which are mentioned in Principle 91 of the Constitutional Act in selecting jurists and lawyers of the Guardian Council.

Supervision of public institutions improves their performance. In a dynamic public law system, the principle is on the controllability of the actions of all executive bodies. Due to the importance of the position of the Guardian Council, this hypothesis has been proposed that the decisions of the Council are unmonitorable and any monitoring exercise, independence and dignity. According to the note of Article 12 of the Law Organizations and Procedures of the Court of Administrative Justice, the decisions of the Guardian Council are not considered to the General Board of the Court, and according to Article 117 of the Civil Service Management Law, The guard is excluded from this general rule. The question of this research is how is it possible to monitor the administrative and financial actions of the Guardian Council? Based on this, the presented hypothesis emphasizes that the administrative and financial powers of the Guardian Council can be judicially supervised, and this issue especially emphasizes the separation between the political and administrative actions of this institution. The results of this research show that in our legal system, due to the wrong understanding of the position and position of the Council, sometimes the monitoring of the financial and administrative actions of this institution is neglected, while the correct monitoring of the two categories of actions, causes the better performance of the Council. And the rights of the nation are guaranteed. The research method in this study is descriptive-analytical, and the library method was used to collect the sources.

Based on Articles 71 and 72 of the Constitution, the Islamic Consultative Assembly has the general legislative power within the framework of the provisions of the official religion of the country and the principles of the Constitution.Therefore, it is conceivable that the subjects to be legislated cover a wide range of social concepts and institutions for which there is no direct provision in the constitution. The existence of such an issue makes it difficult to determine the inconsistency of parliamentary resolutions with the constitution within the silence of this law.The present study is based on analytical method and using library resources to find the answer to the question "What are the criteria for legislation or the role of the Islamic Consultative Assembly in cases of constitutional silence?" and "How well these rules have been followed in the practice of the guardian Council."The findings showed that in general, the two criteria "rules that protect the rights and freedoms of individuals should not be weakened" and "the balance in the rules of organizing public forces should not be disturbed" can be used to measure parliamentary approvals in the field of constitutional silence.

According to the opinions of Guardian Council in controlling the acts of the Islamic Consultative Assembly, in addition to objections to the constitution and sharia, several ambiguities have been raised by the Guardian Council, and the Assembly has often taken action to resolve these ambiguities. It should be noted that the Council has not specified competence about ambiguities in the constitution and other related laws. The main question of this research is that in the face of the Guardian Council with the ambiguity of parliamentary acts, what is the best way forward? In this article, with a descriptive-analytical method, an attempt has been made to explain their advantages and disadvantages by introducing alternative options. Based on the above, the answer of this research is as follows: denying the authority of the council in announcing ambiguous objections and the unreasonable obligation of the parliament to eliminate these objections, considering the legal competencies of these institutions, do not seem to be defensible options. While acknowledging the possibility of ambiguous objections (clearly and precisely) by the Guardian Council, the parliament should also be able to explain its considerations so that if the Guardian Council finds these considerations convincing, it will deviate from its previous view; Otherwise, the parliament is obliged to resolve the ambiguity. In any case, it is necessary to formulate the relevant process in the Act of Procedure of the Islamic Consultative Assembly.

Legislation based on Imami jurisprudence has led to the richness and independence of our rights in decades of legislation. There has always been a debate about what criteria should be used to legislate according to jurisprudence And typically the focus has been on who or what is being followed And it is enough to provide general criteria and in practice there is no decisive criterion for this issue. This article discusses only the criminal law and the specific conditions and requirements of the law in this regard Because it is not possible to provide a standard for legislation on all laws with specific conditions and characteristics of each of them Because the law in each case can be very different from the law in other area And you have to think about each case according to its specific requirements And refrained from generalizations and providing a standard for all cases. This article seeks to provide an appropriate solution in the field of criminal law And prevented the entry of personal opinions and ideas into the field of legislation And as far as possible our criminal law Closer to the world criminal law without distancing itself from its originality.