جستجوی مقالات مرتبط با کلیدواژه « نظارت قضایی » در نشریات گروه « فقه و حقوق »

The Constitution, as the highest legal-political instrument of the country, must be immune from any kind of intervention, for which special institutions are usually formed or appointed; otherwise, the rights and freedoms of the people in the constitution will be abandoned and the existence of the constitution will be invalidated. In the Islamic Republic of Iran, the Guardian Council is responsible for the protection of the Constitution in the legislative phase, and all the enactments of the parliament become law after the approval of the council. The challenge that exists in this connection is whether the judges of the courts have the discretion, by insisting on the principle of the supremacy of the constitution and the need to cite to the valid law, as well as the constitutional review entity, not to implement the laws that they consider to be contrary to the constitution and refuse to implement them?; this research aims to analyze and respond to this issue using a descriptive-analytical approach. The findings show that although it is not possible to comment on the absolute rejection or acceptance of the judges' competence in this regard, in relation to the laws passed before the formation of the Guardian Council (both pre-revolutionary laws and laws approved by the Revolutionary Council) and the enactments that became law due to ending the legal deadline for the council’s comments, and also some enforceable legal norms that are not under the review of the Guardian Council, the courts can be given the authority not to implement them.

The core purpose of judicial review is to protect the rights of the citizenry, in which administrative jurisdiction and administrative courts have the most importance in these proceedings; due to the competence to hear the disputes against the government, such as employment conflicts, which lead to administrative justice eventually. In Iranian legal system, administrative justice court has entrance system has a thick legal framework and long-lasting selection’s process which includes many criterions, but the most controversial matter is the assessments of the nominees in terms of religious commitments from selection committees. Selection’s principles and procedures, which are mainly based on fidelity to religion, mostly violate the right to public employment. Administrative justice court that has the power to review the selection committee’s decisions can protect the employment rights of the citizenry, which has done it correctly so far.

ex-ante judicial supervision over prosecution and investigation is one of the new developments in criminal procedure. This supervision is the use of supervision by court judges or independent expert judges outside of the Prosecutor's Office over the actions and decisions of the Prosecutor's Office, including the investigator, especially actions that impact individual rights and freedoms in the pre-trial stage of criminal proceedings. Ex-ante supervision is recognized in the criminal justice system of Italy, and Germany; however, in Iran's law, ex-ante judicial supervision has been considered only case-by-case in some articles of Iran's Criminal Procedure Code, without being correctly extended to all decisions that are related to the rights and freedoms of individuals in the pre-trial stage. This article aims to explain the ex-ante judicial supervision comparatively taken in Germany and Italy and examine their differences with the existing supervision in Iran using analytical and descriptive methods, and at the same time, it is comparative with library collection tools; done. The findings of the research indicate the need for Iranian legislators and legal doctrine to pay attention to the issue of ex-ante judicial supervision over prosecution and investigation, such as in Germany and Italy, in an explicit and precise manner, and to prevent the centralization of powers of prosecution, investigation and supervision in the hands of the prosecutor's office to improve the quality of criminal justice and Prevention of judicial errors and violation of people's rights with these broad powers that were given to the judiciary.

Contract law, as the most important part of private law, compiles and regulates the trading relationships of individuals. The importance of this section has always occupied the minds of legislators and lawyers from various aspects. One of the aspects that has received less attention is the "supervision or control of the judicial authority" on the covenants of individuals in order to create balance in the economic relations of the parties. An issue that may be against the principle of autonomy at first. However, according to some philosophical doctrines such as Deontology, consequentialism and pragmatism and economic foundations such as the theory of comparative advantage and the theory of uncertainty and risk and especially the common intention of the parties, can consider a constructive role for the judge and the possibility of intervention and control of the contract to regulate the contractual relationship of the parties to balance the contractual situation. The possibility of revision on contract has been specified in other legal systems more or less, but no place has been identified in the Iranian legal system. Therefore, it is necessary to research in this regard, at first, its basics should be specified and explained as a road map.

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

The ever-increasing expansion of the activities of the government and the executive bodies shows the necessity of taking decisions and measures to organize administrative affairs and ensure the implementation of laws. Despite this necessity, in some cases, the institutions and their officials refuse to take the decision and action that they are obliged to do according to the law. Therefore, in addition to the administrative supervision foreseen in the laws, the judicial supervision of administrative acts is undeniable as one of the important and new challenges of administrative law in order to prevent the violation of citizens' rights.The uncertainty that exists in this context is whether the court of administrative justice as an administrative judge has the authority to supervise administrative omission or not? The following article, using the descriptive-analytical method, while explaining the concept of administrative omission, comes to the conclusion that, firstly, using the articles (10), (11) and (12) of the Law of the Administrative Court of Justice has the authority to "cancel" and "mandate" and therefore can deal with the administrative omissions. Secondly, the legislator in 1402, while amending the law of the Court of Administrative Justice, made the filing of a complaint in the Court's branches subject to the initial reference to the institution and obliged the institutions to respond to the request of the applicants, which led to the regulation of administrative decision-making, Documenting and justifying decisions and reducing administrative omissions.

Peaceful settlement of disputes is one of the great achievements of human civilization and we are the heirs of this precious and valuable heritage. The New York Convention with the main and fundamental issue of recognition and enforcement of agreements and foreign arbitration awards is the result of the aforementioned legacy, which has remained popular for 60 years and its fundamental mission is to standardize the laws and procedures of recognition and Sees the implementation of arbitration decisions and agreements. According to paragraphs a and b of paragraph 2 of article 5 of this convention, respectively, arbitrability and public order are among the obstacles to the recognition and implementation of issued decisions, which the courts can refer to. These predicted criteria, whose mission is to support and protect the basic principles and standards of the rights and values of each country, and which are considered to be among the judicial supervision of the country that recognizes and enforces the decision, are closely related to each other, and it is assumed that each Multiple arbitrability and the impossibility of referring some specific cases to arbitration have been formed based on the general order of the countries, although they have common roots, they are distinct from each other and they are different from each other. The effort of this article will be to focus on explaining this importance and specifying the limits and boundaries of these criteria and obstacles to identifying and implementing foreign arbitration awards.

The main issue tried to be investigated in this article is what is the structure and process of the preliminary branch of the International Criminal Court? This article is descriptive and analytical and the mentioned question has been investigated using the library method. The findings indicate that the existential philosophy of the establishment of the preliminary branch, in the face of the prosecutor's office, is that countries at the time of the Rome Statute, wanted to establish an institution that could protect the prosecutor from any suspicion of non-compliance with the standards of justice and fairness. Therefore, with the establishment of the preliminary branch, the way is closed to any doubt in the performance of the duties of the prosecutor. The preliminary branch of the International Criminal Court is an advanced judicial system that has been able to meet the goals of a standard trial to some extent by the interaction of the prosecutor's office in the preliminary investigation phase, by issuing the necessary licenses and regulatory policies. The result is that at the stage of starting the prosecution and conducting the preliminary investigation, if the prosecutor does not want to observe the principles of justice and fairness as an impartial judge, he can easily start the prosecution against a country and this is the preliminary branch that prevents this.

The significance of comparative study in the field of administrative law, which heavily relies on foreign legal frameworks unlike other domestic legal fields, cannot be overstated. Within this context, the examination of administrative justice, which plays a pivotal role in the establishment and evolution of administrative law in influential legal systems, becomes increasingly important. This article aims to explore the characteristics and distinctions of administrative justice models across the globe, with a focus on the legal foundations of each respective legal system and the extent to which these distinctions are reflected in the procedural components. Among the various classifications of administrative justice patterns, the classification of countries based on organizational criteria and competency appears to be the most meaningful and comprehensive. From this perspective, countries can be categorized into three models: judicial unity (English model(, judicial duality (French model(, and mixed system (Germany-Belgium model(. Key factors such as the definition of the concept of public interest, the relationship between substantive and formal rules, the nature of the judge-administration relationship, and the unity or duality of the legal framework and judicial authorities significantly influence the formation and differentiation of each justice model. These factors manifest themselves to varying degrees in the quality and manner of justice, as well as in the issue of control and the authorities of the administrative judge.

Background and Aim The diagnostic competence of administrative organizations, including the tax affairs organization, is one of the important issues of administrative law, which is closely related to the rights of citizens, and its supervision is of great importance in order to realize good administration. The purpose of this article is to examine the role of judicial supervision of the Administrative Court of Justice on the diagnostic competence of the Tax Administration in the realization of good administration. This paper is descriptive and analytical using library method.Ethical Considerations: In this paper, the originality of the text, honesty, and trustworthiness are respected. The findings indicate that the judicial supervision of the Court of Administrative Justice on the diagnostic competence of the Tax Affairs Organization. It plays an important role in the realization of good administration. The rule of law and fairness in front of the law and accountability are the most important components of good administration, and the supervision of the administrative justice devolve can cause the realization and implementation of these components in the process of diagnostic competence in the tax affairs organization, in which case the rights of tax payers are respected. The role of judicial supervision of the Court of Administrative Justice on the diagnostic competence of the Tax Affairs Organization in the realization of good administration is faced with challenges such as multiplicity and ambiguity in the laws, which need to be reformed.

The judicial control of the Administrative Justice is realized by conforming the provision with the law. The correct interpretation of the law requires a coherent intellectual-scientific system that negates the possibility of any misapprehension. The general body of the Administrative Justice influenced by the standards of the principles of Islamic jurisprudence has explicitly or implicitly attempted to annul or confirm the provisions of the Executive. The wide application of the topics of principles of Islamic jurisprudence, ranged from words to practical principles, in the judgements of the Administrative Justice implies that this institution has focused on practical issues by avoiding the theoretical differences between the Osulis. The reasons for annulling or confirming the act which are known as the reasons for annulment in the legal literature are resulted from the issues of the principles of Islamic jurisprudence. Although the view of Administrative Justice on the standards of inferring the Islamic law is not immune to criticism, but more than three decades of experience of judicial control has left a fruitful practice and it implies that the standards of the principles of Islamic jurisprudence are effective in any issue.

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.

One of the most important principles governing governance is the rule of law. One of the important effects and requirements of the principle of rule of law is that all subordinate regulations must follow the superior acts and regulations and not contradict them. In the Iranian legal system, by accepting this principle, has been emphasized on the noncontradiction of subordinate rules with superior rules. According to Article (4) of the Constitution, all acts and regulations must comply with Sharia standards. Also, based on the various clauses of the general policies of the legislative system, including clause (2) of these policies, has been emphasized on the monitoring of laws and regulations in order not to conflict with Sharia and the Constitution. In Iranian legal system, based on the principles (170) and (173) of the Constitution, judicial supervision of compliance with Sharia standards and the Constitution is assigned to the Administrative Court of Justice. On the other hand, Supreme Council of Cultural Revolution and Supreme Council of Cyber Space are two important bodies with authority in the field of establishing enforceable rules, which according to Note (2) of Article (12) of the Law of the Administrative Court of Justice, judicial supervision of the approvals of these councils if in the field It is beyond the jurisdiction of the court to act on their own. Of course, the authority to determine which of the provisions was outside the jurisdiction of these two institutions is also within the jurisdiction of the Administrative Court of Justice. Monitoring the non-contradiction of any regulations enacted by the subcommittees of these two institutions is under the jurisdiction of the Administrative Court of Justice.

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?

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.

Agrarian Reforms Council is the most important exclusive administrative authority for agricultural lands in Iran's legal system. The limits of the competences, duties and powers of this council are specified in the Land Reforms Law and subsidiary laws and regulations. With the approval and implementation of the Land Reforms Law, like any other legal establishment, disputes may arise between the people, which the law has provided for this quasi-judicial authority with a special legal mechanism to make general decisions. Case decisions taken by this quasi-judicial authority can be appealed and contested in the branches of the Administrative Court of Justice. The general decisions and approvals of this authority can also be judicially supervised by the general board of the Administrative Court of Justice. This research, with analytical-descriptive method, seeks to analyze, criticize and find an answer to the question that what are the most important aspects of dealing with the decisions of the Land Reforms Council, including the annulment, violation and approval of the said decisions in the general board of the Administrative Court of Justice? The most important achievement of this research is to identify the competence of the general board of the Administrative Court of Justice regarding general approvals, verifying the conflict of votes in order to issue a unanimous vote and verifying the competence and powers of the Land Reforms 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.

Judicial oversight is one of the most important issues in criminal procedure that has always been the subject of discussion and opinion. This article tries to make a comparative study of judicial supervision in Iranian and French law. The present article is a descriptive-analytical study and examines the question using the library method. The results indicate that in the French criminal justice system, the only alternative to temporary detention is judicial supervision as a criminal security that includes and supplies all the assets of this system and adopts a unified approach and the need to pay attention to the needs of investigation and action. Tamin seeks to create the conditions for maximum balance between security and freedom. In the Iranian criminal procedure, however, despite the provision of judicial supervision as an alternative to temporary detention and some subscriptions with French law, due to the dual approach adopted by the legislature, the main, single and independent function of this criminal institution is subordinate, dual and complementary. Has become. Considering the recourse and using examples such as deterrence and obstruction and having a supervisory aspect, it may be said that in case of recourse to the judicial authority along with other appointments to any of the foreseen cases, judicial supervision is in order to prevent and correct the accused and guarantee The more the victim's salary, the more security will be taken from the accused, which violates the purpose of judicial supervision and is in opposition to criminal justice and the establishment of its goals, and not only loses its main mission, but also the efficiency of this institution. It has a negative effect. The need to pay attention to a unified approach to security and oversight appointments in Iranian law, such as French law, provides the maximum context for the investigating authority to accurately take steps to fully protect the rights of victims of crime and provide the most appropriate security in conflict with Individual liberties are not desirable in the view of progressive criminal justice systems.

According to legal provisions, including the Criminal Procedure Law, criminal proceedings are solely the responsibility of judicial authorities. These authorities benefit from the help and cooperation of judicial officials to perform legal duties. In addition to this situation, the role of the element of crime detection in the relationship between the judge and bailiff is very important. Crime discovery, which is the starting point of criminal proceedings, is considered one of the duties of the judiciary (paragraph 4 of Article 156 of the Constitution and Article 22 of the Criminal Procedure Law of 2012) and on the other hand, one of the duties of judicial officers, especially general officers of justice and military has been established (Articles 28 and 602 of the Criminal Procedure Law and Article 4 of the Law of the Islamic Republic of Iran Police Force), and on the third hand, depending on the level of contact and the availability of facilities, it is within the power of the officers, and on the fourth hand, the officers must perform the prescribed duties. To perform legal and judicial duties under the supervision and instruction of the judicial authority. (The same articles from the Criminal Procedure Law)It is in this system that the communication model between judge and bailiff becomes important. There are two models in this connection. Network model (horizontal) and hierarchical model (vertical). This article aims to recognize the desirable model of the legislator and his desired qualities, based on which it is clear that the concerns of some high judicial officials and even the leadership regarding the way of interaction between the judge and the bailiff and possibly the inverse nature of the said interactive relationship. It is caused by not complying with the desired model of the legislator.

According to Article 217 of the Criminal Procedure Code, one of the most important purposes of issuing criminal security contracts is to "guarantee the rights of the victim and compensate him / her for damages". However, according to the explicitness of Article 690 of the Code of Criminal Procedure, criminal security contracts for crimes of legal entities are limited to two, the use of which, unlike criminal security contracts of natural persons (Article 217), is not mandatory and "at the discretion" of the official. Judicial is assigned. In the present study, a descriptive-analytical method has been used, using library resources to critique and review criminal security agreements and judicial supervision of crimes of legal entities in order to guarantee the rights of victims. Legal appointments are not commensurate with the severity and extent of the crimes in which legal entities today engage and victimize large numbers of individuals, especially in the financial and economic spheres, and legislative reforms are in line with many countries. It provides for a variety of criminal security agreements for legal entities and has also allowed the use of other agreements, such as bail agreements. Also, in the field of judicial supervision, despite the legal ambiguity and of course against the opinion of some legal writers, it seems that some of the provisions of this contract can be used in relation to these persons in proportion to the crime committed by the legal person.