نشریه حقوق اداری
پیاپی 8 (تابستان 1394)

Government to serve and do their duty compels the conclusion of the contract. government contracts due to substantial sums that they are in total because of the way their government is doing and the policy that the government imposes on government contracts are of great economic importance. the contract like any other contract, the general conditions necessary to the validity of contracts. In addition to general terms, article 79 of the public audit tender due process in government contracts is required. however, the nature of the condition is unknown. In other words, in these circumstances if necessary, correct or influence the condition and the lack of experience makes them deal with the legal situation is ambiguous. this has led, first, second, because of the nature of government contracts face uncertainty about what action is offer, Call the auction, Tender, the winner or the winner's notification to sign the document and what is acceptable practice and eventually signed a contract when there is disagreement. Given the silence of the legislator and the lack of case law about the impact of signing government contracts Tender procedures and controversial scholars of law, it is clear the need to study. The opinions expressed in this article after explanation, to determine the nature and guarantee the implementation of the Tender procedure will be discussed according to existing regulations. Consequently, the role that the state plays in the nature of government contracts paid for and finally required to determine the time of conclusion of the contract is explained.

Judicial control of discretionary powers is one of the topics discussed in administrative law studies related to the limits of governmental power. Freedom of action established due to the power which the legislator gives to the official, explains evaluating the legality of administrative act by judge, different from duties control, in the “minimum control” and restricts the judicial competence in controlling governmental powers. Considering the necessity of making a distinction between the controlling and interfering as a principle, leads to an ambiguity in answering this question “what can be controlled?”. Based on this fact the judge must clearly recognize his legal competence boundaries in controlling his powers. This studymakes an attempt to make clear the content and the area of judicial control of discretionary powers and make a distinction between “merits” and “legality” by classifying all kinds of control based on their subjects and by analyzing perspective on the judge act of administrative justice court, the related case law and the new innovative institution of administrative justice court law.

Government entrusts performance of certain functions to private contractors by signing an administrative contract called contractual agreement.in this contract that is held between administrative agency as employer and a real person or a legal entity as contractor. It is quite natural that there may arise dispute or disagreement in execution and interpretation of the contract between parties to the contract. As for a public affair to be continued, settlement of dispute is necessary so that fulfillment of public affair is not impeded. Arbitration is one of the best technique that is used in this regard. This method, in addition to quick proceeding has the necessary accuracy and reliability in settlement of disputes which is also applicable in governmental contracts. Arbitration in article 63 of general conditions of contract which determines provisos of these contracts has been stipulated for settling disputes of governmental contracts. This paper aims to explain how arbitration is formed, executed and terminated.

Public-law persons possess legal personality and according to the law, they are responsible for several public affairs. One of benefits of possessing legal personality, is having capacity and competence and being expected rights and obligations. For natural persons, the competence of possession of rights is called the “capacity to acquire rights” and the competence of exercise of rights and duties is called “capacity to exercise rights”. In view of the fact that public-law persons possess legal personality, is the competence of these institutions capable to be distinguished to the acquire rights and exercise rights, the same as the case of natural persons? Once the public institutions are created, they get legal personality. The creation of these institutions is just allowed by law. But another question that can be proposed, is that when do these institutions valid? Since ratification of institution act or after ratification of statute? Is ratification of statute one of the steps of this creation? In this essay, along with proposing some perspectives about this moot point— by referring to statutes and some institution acts of public institutions and by using descriptive and analytical methods, it is deduced that the institution acts of organisations and public institutions, sometimes are necessary and sufficient conditions for creation of these institutions and sometimes are only necessary conditions for creation, not sufficient. The competence of public institutions to acquire rights is bound to creation time and validity of their legal personality and the competence of these institutions is bound to providing will enforcement conditions along their competence. This competence is tied with authorities’ time set, in terms of law or statute approval.

Constitution 139 article about reference of claims relating to state and public property to arbitration in the past years 35 is differentially interpreted or awarded by Conservator Council, Parliament, Courts and domestic and international arbitration Centers. one of these interpretations, is one that administrative justice tribunal public board rendered in the n.138-139 award regarding to state regulation relating to reference of claim arising from a special contract to arbitration of ICC and annulled it and in consequence, arbitration clause with arguing that permit of state was absent in the time of conclusion of arbitration contract and subsequent confirmation couldn’t validate it. This article analyzed the foundations and documentations of mentioned award and proved that this award is inconsistent with appearance wordings of ordinary Act and constitution and intention legislator relating to arbitration also legal and religious jurisprudence general principles and state practice in the past years 35.in addition it isn’t executable.

Today, respect to the fundamentals of citizens’ vested rights, along with other public laws and principles of administrative laws, plays a significant role in guaranteeing and protecting citizens’ rights, which would lead to administrative efficiency. With regards to this, role of administrative justice tribunal as ensuring citizens’ rights and freedom is very critical, particularly in annulling decisions made by authorities which, in respect, cause breach or trampling of citizens’ rights. Adopting an analytical approach, the present study seeks to investigate performance of the tribunal in dealing with individuals’ vested rights. A review of procedural policies made by the tribunal indicates that justice tribunal has adopted a supportive approach to guarantee citizens’ vested rights. However, analysis of some cases shows a negative approach and a constricted viewpoint to this fundamental principle.