نشریه دانش حقوق عمومی
سال دوازدهم شماره 4 (پیاپی 42، زمستان 1402)

Explaining the suspended contract and its application in jurisprudential terms and laying the groundwork for determining its nature in the context of concepts such as contracts is one of the important issues in the subject law of Iran; However, the existence of different thoughts and ideas in relation to theExplaining the suspended contract and its application in jurisprudential terms and laying the groundwork for determining its nature in the context of concepts such as contracts is one of the important issues in the subject law of Iran; however, the existence of different thoughts and ideas in relation to the subject of the suspended contract has caused a different perception in this regard. Some Islamic jurists consider the suspension of contracts to be invalid, arguing that it does not establish a constitution and contradicts the dogma of contracts. Considering that the purpose of the contractors is to establish the obligation and fulfill the effects according to the contract, so by accepting the suspension in the source and joining it to the punitive contracts, it is possible to structure and validate the suspended contracts and waive the suspension in the validity of the contracts. Accordingly, those who believe in this theory by descriptive-analytical method and by inductive proof of similar examples of suspension of contracts in jurisprudence such as will, forgery, endowment and in administrative law, including the provisions of the Civil Service Management Law or the general conditions of the contract, believe that administrative contracts can be required. It should be considered suspended in Iranian law.of the suspended contract has caused a different perception in this regard. Some Islamic jurists consider the suspension of contracts to be invalid, arguing that it does not establish a constitution and contradicts the dogma of contracts. Considering that the purpose of the contractors is to establish the obligation and fulfill the effects according to the contract, so by accepting the suspension in the source and joining it to the punitive contracts, it is possible to structure and validate the suspended contracts and waive the suspension in the validity of the contracts. Accordingly, those who believe in this theory by descriptive-analytical method and by inductive proof of similar examples of suspension of contracts in jurisprudence such as will, forgery, endowment and in administrative law, including the provisions of the Civil Service Management Law or the general conditions of the contract, believe that administrative contracts can be required. It should be considered suspended in Iranian law.

According to the fourth principle of the constitution, one of the most fundamental foundations of the legal system of the Islamic Republic of Iran, , is the adherence of all laws and regulations to Sharia. Although the implementation mechanism of this principle is in accordance with the ninety-fourth and ninety-sixth principles of the constitution with the prior and automatic sharia supervision of the Guardian Council's jurisprudence on the approvals of the parliament, it is a guarantee of the sharia law, but except for a reference in the one hundred and seventy-seventh principle of the constitution, a mechanism to supervise the legality of the aforementioned regulations is not foreseen in the fourth principle. Therefore, the necessity of realizing the intention of the basic legislator from the establishment of the fourth principle is the establishment of a suitable and efficient mechanism for Sharia monitoring of the regulations. The main question of this paper is proposed around this axis, what is the optimal mechanism of sharia monitoring of administrative regulations. This paper using a descriptive-analytical method by referring to library sources led to the conclusion that Sharia supervision from the platform of the Court of Administrative Justice with challenges caused by "limitation of the jurisdiction of the Court", "proceedings to the extent desired", "lack of necessary proceedings in the Guardian Council" " and "restoring the effects of the repealed regulations to the previous status" is encountered. Previous Sharia supervision over all regulations is not within the capacity of the current structure of the Guardian Council and conflicts with the principles of administrative law. Therefore, it is necessary for a mechanism under the supervision of the jurisprudents of the Guardian Council to monitor the administrative regulations in a retrospective manner and at the same time automatically and actively.

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 relation of the constitutional review institution as an institution that guards and guarantees the implementation and application of the constitution in a democratic system (in a nation-based system as a precise meaning) with its previous procedure and precedent is one of the issues that has different forms and implications depending on the requirements of different legal models. Although different models of constitutional reviews can be considered based on various criteria, but in general, two models of written law and common law are divided into the formulation of the relationship of the constitutional review institutions with their previous procedures and precedents. Based on this, the current research is trying to use the descriptive-analytical method, while examining the mentioned issue in relation to different countries under the two models of written and common law and according to the model of the constitutional review institution in the system of the Islamic Republic of Iran, in addition to applying the preferences and advantages of the constitutional review model. The Islamic Republic of Iran should take into account the achievements and experiences of different countries in order to improve the quality of the performance of its own model of constitutional council.

The terms “organizations, companies, institutions affiliated to the government” are used in the constitution and ordinary laws, and no clear and independent definition has been provided for it, so this ambiguity (lack of transparency) has caused the issuance of incorrect judicial decisions (which were not intended by the legislator) in the interpretation of the aforementioned laws. The question of the paper is what concept of these people should be taken into consideration by the legislator and the judges of the courts of law.In order to answer this question, the constitution, the procedure of the Guardian Council and ordinary laws are studied with an analytical-critical method, and finally, with the case study of electricity distribution companies, the criteria for defining government-affiliated persons are presented. The electricity distribution companies are the big symbol of entities affiliated to the government.This paper shows the intention of constitution (and so, intention of legislation) to use the term is any person be controlled by government (in its wide meaning); it doesn’t require to be owned by government. So, it is neccesary to be chosen this interpretation of rules by judiciary and executive officials.

Increasing bills without expert support and decreasing the quality of laws and non-implementation of laws are among the problems of Iran's legislative system. One of the solutions to solve this issue is to carry out expert activities before announcing the receipt and include a guarantee of non-announcement of receipt for non-expert bills. Therefore, the question arises whether in the legal system of the Islamic Republic of Iran it is possible to require components to announce the receipt of legislative drafts? If the answer is positive, what is the mechanism for determining the feasibility of the bill in the parliament? This research has tried to answer this question by descriptive-analytical method and using library resources. As a result, although in the existing procedure, announcing the receipt of bills is not optional; However in Iran's legal system, it is possible to determine the components to recognize the declaration of collection in the Islamic parliament within the framework of the Iran's constitution. These components can be determined and gradually implemented using the capacity of the general policies of the legislative system. Finally, in order to guarantee the rights of representation, their verification must be formal. In addition to this strategy, in case of lack of information or technical complexities of the issue, the parliament can advance its goals by using empowering laws. The declaration of receipt of such drafts does not require verification of the mentioned components.

The Constitution of the Islamic Republic of Iran, in its most important meta-constitutional principle, i.e. principle 4, has determined the necessity of compliance of all laws and regulations with Islamic standards, the clarification and jurisprudence of the Guardian Council as the exclusive authority for safeguarding this important in the legislative aspect. In this regard, the aforementioned institution is responsible for reviewing all binding legal propositions in terms of compliance or non-contradiction with Islamic standards. An important special task that has been given to the jurisprudence body of the Shura under this principle is called Shariah supervision, and the result of this supervision is the issuance of a Shariah opinion. Regarding the lack of specification of the constitution, especially the Shari'i opinion, contrary to the specification of the official and legal interpretation of the Guardian Council according to principle 98, the present research has tried to answer these questions with the approach of procedural analysis and using library sources; First of all, considering that in principle 98, the authority to interpret the principles of the Constitution is assigned to the Guardian Council, what kind of opinions are based on principle 4 regarding the principles of the Constitution? Secondly, what is the relationship between these opinions and the official interpretations of the Guardian Council in line with principle 98? Thirdly, what is the nature of the views of the jurists of the Guardian Council regarding the principles of the constitution based on principle 4? In view of the validity of Sharia opinions and their connection to Islamic standards and the superiority of these standards over all legal norms, including the Constitution based on Article 4, Sharia opinions that are issued in the positions of conflicting "applicability" or "general" principles of the Constitution. have a superior nature than official interpretations.

By accepting the regulatory authority for the head of the judiciary, monitoring the regulations approved by that authority is one of the ambiguities of the Islamic Republic of Iran’s legal system. In this context, one of the most important types of regulation supervision is the religious supervision of the Guardian Council’s jurists, which is the main topic of this research. Therefore, this research, in a descriptive-analytical format, sought to answer the main question which is: “what are the challenges faced by the religious supervision of the Guardian Council’s jurists on the regulations approved by the head of the judiciary in terms of the possibility and method of implementation?” The findings of this research confirm that by referring to the general competence stipulated in principle 4 and paying attention to the foundations of religious supervision while realizing the requirements of the normative hierarchy, to maximize the protection of the rights of the judiciary’s employees as well as citizens, it is necessary to apply Sharia supervision to the regulations approved by the head of the judiciary. However, due to the fact that the regulations approved by the Head of the Judiciary are excluded from the jurisdiction of the General Board of the Administrative Court of Justice, the non-systematic application of direct religious supervision by the jurists of the Guardian Council, and the incompatibility of the religious supervision of the Guardian Council’s jurists on such regulations with the practical requirements of that council, are the challenges ahead of the application of this supervision.