نشریه پژوهش های نوین حقوق اداری
پیاپی 7 (تابستان 1400)

In order to enforce the objectives of procurement regulations,legislative bodies design procedures for conducting public sectors procurement so that public sector entities can rely on them to achieve the goals of legal system.For this reason,the design of methods appropriate to the requirements of those entities is an essential issue of Tenders Laws. In terms of choosing the bidding method, the bidder's goal should be based on the selection of a qualified person of the contracting party, in the best time and the most appropriate conditions to be able to the best and most appropriate bid submitted by him.Therefore all procurement rules have been devoted to a variety of bidding procedures.The present article identifies the principles that the UNCITRAL Model Law on Public Procurement has taken into account in designing the tendering procedures and compares them with the procedures outlined in Iran's Tender Law. This research intends to answer the question of what are the differences between the tendering methods in the two documents and in the current situation by comparatively examining the various methods of holding tenders in the Iran's Tender Law and the UNCITRAL Model Law on Public Procurement. Which of them is more successful in achieving the goals of bidding laws? But the focus is on explaining the rules and regulations used in the UNCITRAL Code. Thus, first, the methods of holding tenders mentioned in Iranian law are briefly explained, and then the related issues stated in the sample law are examined with more care and reflection.

It is possible to improve the legal system governing the government contracting contract in terms of quality, in the light of paying attention to some principles. These principles are conceptually related to what is known in the political, legal, and managerial literature of the 1980s as "good governance," and have common and intertwined boundaries. Transparency, participation, rule of law, accountability, efficiency and effectiveness are among the most important of these principles. In this article, after briefly explaining the theory of good governance and explaining its definitions, the authors have criticized the system governing government contracting contracts in the light of the principles of good governance. In some cases, criticisms of the law and in some cases refer to procedures, decisions, and policy-making in this regard. At the end, suggestions are made to amend the law and change the method of determining methods and decision-making. In general, the use of good governance model in administrative contracts seems to be a good model for improving, promoting, efficiency and effectiveness of the legal system governing government contracting.

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

Judicial oversight is one of the most effective ways to prevent the violation of the rights and freedoms of individuals against the government, because individuals do not have an equal power before the government and in its specific meaning, the administration, and always fear the abuse of the administration to have The position goes superior. Abuse of position is aspects of judicial oversight in the Court of Administrative Justice. In legal texts, abuse of position means being exercised by an administrative authority who has those powers in a direction outside of administrative purposes. But the question that comes to mind is what concept and examples of abuse of position in the procedure of the branches of the Court of Administrative Justice? To find the answer, refer to the procedure of the branches of the Administrative Court of Justice. Although in the Law on the Organization and Procedure of the Court of Administrative Justice, abuse of position is considered as one of the aspects of judicial supervision, but in the proceedings of the Court of Administrative Justice, it has been neglected and rarely can cases be found that refer directly to Abuse of official position has been issued. It is difficult for a judicial official to abuse her administrative position, because the administrative official has not apparently violated the laws and regulations.. However, it is in the court procedure that the judges of the Administrative Court of Justice have issued a verdict according to the cases of abuse of power.

The emergence of free trade-industrial zones in 1993 in the legal system of the Islamic Republic of Iran caused a change in the structure of government-country in Iran. The most important effect of the emergence of these regions in the structure of the Iranian state was the damage to "unity of law" and "legislative unity" as two principles accepted in the political and administrative system of Iran. This study in the form of descriptive-analytical studies, while briefly explaining the changes in the structure of government-country in Iran, the emergence of free trade-industrial zones in the legal system of the Islamic Republic of Iran has caused changes in the structure of government-country in Iran; As a result of this change, the state-country structure in Iran has shifted to a different model of "concrete unity" and "regionalism", which was referred to as "abstract unity". However, based on the studies conducted in this study, the application of this model in the Iranian legal system is contrary to the "principles explaining the structure of the Iranian administrative system", "principles related to the territorial integrity and territorial integrity of the country" and "principle of non-delegation".

Undoubtedly in the absence of acts, deficiency, synopsis and conflict of law, Judicial Interpretation is compulsory and admitted to the all of Legal system. Competence in Judicial Interpretation should be standardized if distinct procedures not to be seen in adjust the cases to dictum. Recognizing as a wide spreading umbrella and context of creating and splicer ingredients of law order, Principles of law has root in foundations and head in acts. The relation between principles of law and Judicial Interpretation that makes precedent is of importance when in lack of commentating method it is possible for judges to be entrapped by misconstruction and personalization of law which occurs via subjective interpretation. How to normalize the judicial commentary and to present some applicable norms basis on law principles is why this research should have been done. The method of doing is desk research by descriptive-analytical approach and by reviewing precedent of administrative court of justice and supreme court of us, tending to represent existing experience. moreover, the proposed way to normalize judicial commentary in form of a variety of recognized principles of law generally and principles of public law particularly and principles of administrative law specially is given. Certainly the best way to formularization of judicial commentary is to give propositions and obvious rules by which principle-based interpretation might be done and in favor of enjoying the flexibility and efficiency of judicial commentary the function of judges would be predictable.

The focus of this research is protection of non-moveable cultural heritages as an example of collective right. The comparative study of this research illuminates that United Kingdom has conferred a huge discretion to local states and non-governmental institutes in order to protect above-mentioned right, although the central government plays still a pivotal role in making essential decisions. The reason is that in United Kingdom the publicity of cultural heritage and the public participation are accepted as two main principles, governing on the protection of cultural heritages. The result is an effective system of protection. On the other side, In Iran, since the protection of non-moveable cultural heritages is tied to sovereignty, ministry of cultural heritage tourism and handicrafts is regarded as an only authorized institute. Therefore, non-governmental and local institutes play a very small role in the process of the protection. It means that Iranian system of protection suffers lack of public participation and Specialization as a result of this restriction. In this research, beside of introducing British principles of protection of non-moveable cultural heritages and its comparison with Iranians one, the author tries to introduce extend of discretion of different institutes which protect these heritages in both countries.

In non- secular governments, access to all aspects of citizens' life style is a principle that takes place in topics such as interference and guidance. What is happening in the field of culture, and in fact, the relationship between government and art, in the form of the existence of the ministry, for culture and art, which also exists in Iran, after the victory of the Islamic Revolution. This study was conducted with the aim of determining the government's approach to culture and art, and examining the behavior and performance of officials of the Ministry. Following the effects of the existence of this ministry in Iran, which has not been investigated from a legal point of view, in the light of the government's approach and the ministry's competences, it was concluded that the objectives and duties of the Ministry of Culture act, determined the way of this intervention, and considering the legal competences, this ministry has not been neutral, and support ideological culture and art it has the mission of this ministry. The Ministry, in addition to the positive effects that it has, in the field of performance, has left its own undesirable and practical effects, on works of art and artists, which can be placed in These topics: polarization of the artistic space, negative impact on artistic taste and creativity, discrimination among artists, highlighting officials instead of artists, enlarging the government, increasing negative bureaucracy, discriminating in obtaining facilities and ministry officials , To legal realism and pragmatism.