نشریه جستارهای نوین حقوق اداری
پیاپی 1 (بهار و تابستان 1400)

According to the provisions of the case, the jurisdiction of the Court of Justice and the general courts are independent of each other. Article 10 of the Administrative Justice Court Law of 1992 defines the jurisdiction of the Court, but according to Note 1 of this Article, the amount of damages caused by the institutions and persons mentioned in paragraphs 1 and 2 of this Article after the court ruled on the violation with the general court. Is. The jurisdiction of the General Courts and the Court of Administrative Justice, based on the above-mentioned note, is one of the cases where the dispute between the General Courts and the Court of Administrative Justice is disputed, and in some cases causes delay in proceedings and confusion of interested parties. What is the jurisdiction of each of the authorities mentioned here? In this article, the author analyzes the materials related to the jurisdiction of the Administrative Justice Court and mentions the opinions of the branches of the Supreme Court and the Administrative Justice Court, while presenting a criterion in distinguishing the type of lawsuits filed in the Administrative Justice Court, arguing that the jurisdiction of the Administrative Court In lawsuits related to the note of Article 10, it is limited to special cases and not all lawsuits related to claiming damages from government agencies, especially damages resulting from coercive bail, are within the jurisdiction of this court and according to the general rule are within the jurisdiction of the general court. In the draft amendment to the law of the Court, the principle is the jurisdiction of public courts in dealing with claims for damages from government agencies.

Today, the protection of the public interest is weakened in some aspects of administrative law. Experience shows that we face gaps at the normative and structural levels in areas such as the handling of case-based government decisions that lack specific stakeholders. In addition, with challenges such as inequality of litigants, obstacles in providing accurate and convincing evidence to the plaintiff, weakness in knowledge of public law and lack of accurate plan of the claim and, consequently, the validity of the final decision and also the lack of proper implementation and We are constantly facing the verdicts in the Court of Administrative Justice. One of the proposed solutions to solve these challenges is the establishment of an administrative prosecutor. However, choosing the best solution is still a matter for reflection, discussion and consideration.The results of the present study showed that in the field of protection of public interests, the development of the concept of beneficiary for litigation in the branches of the Court of Administrative Justice and distance from the concept of beneficiary in private law causes the gaps in litigation in the Court to be largely filled. . In addition, instead of establishing a prosecutor''s office in the Court of Administrative Justice, it is better to entrust the role of protection of public interests to the National Inspection Agency. Considering that the General Inspection Organization has units in all provinces, so in the first place, it is easier for this institution to obtain information about the abuse of public interests in the whole country, and secondly, by granting this legal right. Existing challenges will also be addressed to the National Inspection Agency regarding the possibility of filing a lawsuit in the branches of the Administrative Court of Justice.

In addition to the duties and responsibilities of the employee, the connection of the person with the office in the form of an employment relationship also leads to the enjoyment of rights and benefits. These rights and benefits include material and immaterial rights and benefits. Some immaterial rights and benefits can have financial consequences for employees; For example, although the benefit of leave is part of the intangible salary and benefits, in some cases and under certain conditions it can be paid in the form of cash to employees. In general, those material and immaterial salaries and benefits that lead to the payment of money to the employee are in the form of "employee's financial claims from the office". In case of dispute or non-payment of these financial claims, the employee can file a lawsuit in this judicial authority in accordance with paragraph (3) of Article (10) of the Law on the Organization and Procedure of the Court of Administrative Justice. Apart from the issues related to the issuance of votes in the primary and appellate branches, the implementation of this category of votes has always faced challenges. This descriptive-analytical paper seeks to explore and identify these challenges in the above area. The findings of this study show the ambiguities in the materials related to the implementation of provisions in the law of organization and procedure of the Administrative Court of Justice, enacting laws in the field of creating direct and indirect financial rights and benefits for employees without funding, issuing general and ambiguous votes by branches. The Court and the non-adherence of the executive bodies to the rulings issued by the Court are among the challenges in the field of implementation of this category of rulings.

Deficiencies in the laws related to the acquisition and seizure of lands and properties belonging to citizens have led to the process of expropriation being accompanied by widespread deprivation of citizens' rights. By violating the rule of law by the municipality and evicting the owners, without paying their legal rights, the owners affected by the project will file a lawsuit against the municipality to demand the price of the acquired land. However, there are several obstacles to litigation that pose serious challenges to the realization of landlords' rights, so that landlords are often deprived of the day-to-day price of the acquired land and a significant portion of the damage left to them remains unrepaired. Therefore, in this study, while identifying the barriers to litigation and the challenges of receiving a convict from the municipality, we propose solutions to protect citizens and ensure the principle of equality of all in the payment of public expenses.

This article seeks to understand the concept of public law from Hart's point of view through the common method of "conceptual analysis" and with a "non-essentialist" approach, and based on his valuable work, the book "The Concept of Law". The non-essentialist approach, instead of looking for a set of conditions and features necessary for the existence of law in the whole set, considers the pervasive features of real legal systems. This article focuses on constitutional and administrative law and adapts the definitions of advanced public law standards to Hart's highly influential trilogy of general "secondary" types of "must-haves," which include rules of identification, modification, and judgment. The point is that non-essentialist methodology not only provides a rich descriptive expression of the fundamental features specific to advanced legal systems, but also offers considerable theoretical insights into how law is understood and perceived in many contemporary societies. Also, since the obtained definition is deeply rooted in real social and legal experiences and practices, it presents a more detailed and less abstract theory than Hart's approach, which is based on hypothetical narratives about how law can be developed.

The possibility of litigation for irrational and illegal actions of administrative officials creates a right, which is called the "right to administrative proceedings" and allows citizens to refer to the judiciary to exercise their right to administrative authorities. This right is one of the fundamental rights of citizens vis-.-Vis the government, which is recognized in the administrative law of many governments. In this article, this right has been examined and implemented in the legal systems of Iran and the European Union and the existing institutions and strategies for its implementation. The results of the study show that the existence of the European Court of Human Rights to hear administrative cases and the European Court of Human Rights for non-judicial proceedings are similar to the Court of Administrative Justice in Iran for judicial proceedings and the Commission of Article 90 of the Constitution for non-judicial hearings. This similarity of authorities can pave the way for greater interaction between Iran and the European Union in the field of administrative law and the exploitation of the progress of the administrative proceedings of this union.

The fact that the proceedings are two or more stages is one of the issues that affect the quality of the proceedings and its results. In the Court of Administrative Justice, on the one hand, necessities such as preventing procrastination, facilitating the unification of judicial procedure and the high position of this institution justify the tendency to one-stage proceedings, and on the other hand, requirements such as the possibility of compensation in judicial decisions, respect for judicial principles. Fair and enabling people to access the courts will lead to a two-stage trial. In such a situation, it is very important to find a suitable model for the investigation process and to express its characteristics. The present study has tried to provide a mechanism for the proper organization of the proceedings in the branches of the Administrative Court of Justice by analyzing the needs of the administrative proceedings. According to the research recommendations, by applying minimal changes in the current situation, the advantages of one-stage and two-stage treatment can be maintained and their disadvantages can be avoided. The proposed changes, which are partly inspired by the mechanism of specialized committees and the General Assembly of the Court of Administrative Justice, are aimed at maintaining the primitive and appellate branches along with modifying their functions. According to the authors, the new organization can achieve a proper administrative procedure (optimal and fair trial) by reducing the length of proceedings and increasing the accuracy of proceedings.

Every judicial authority, including the branches of the Administrative Court of Justice, is expected to issue correct rulings. However, the issuance of such rulings in the branches of the Court is accompanied by various ritual and substantive challenges. In addition to the various challenges to jurisdiction and due process, there are a number of challenges to sentencing. The issuance of a correct verdict requires the correct determination of the legal norm governing the litigation, the correct diagnosis of the subject matter of the litigation, the correct interpretation of the norm governing the litigation, and finally the correct implementation of the norm governing the subject matter of the litigation. Each of them faces difficulties that have arisen due to various reasons such as severe shortcomings of the legislative and regulatory system, poor knowledge of administrative law, and so on. The result of these challenges is the high frequency of inaccurate and conflicting rulings by the branches of the Court, and therefore, efforts are needed to identify and resolve them.

Changes in the social and economic conditions of the country and the relocation of labor in different areas of work have made it necessary to transfer insurance records between the Social Insurance Pension Fund, which serves different segments of the work. Transfer from one pension fund to another, either voluntarily or involuntarily, has many implications that can be seen in terms of employees' employment rights and the interests of the bureaucracy. In this area, in addition to legal texts, the review of the rulings of the Court of Administrative Justice is of particular importance. The main purpose of this study is legal analysis of the possibility of changing the pension fund in the Iranian administrative system by looking at the procedure of the Administrative Court of Justice. Due to the special nature of legal studies in this article, a descriptive analytical method has been used. The results of the research show that due to different legal conditions, the transfer of insurance records from one fund to another is faced with limitations and obstacles. Examining the scattered laws and regulations in the field of transferring insurance records and looking at the procedure of the Administrative Court of Justice shows that the main issue in this field is the possibility or impossibility of transferring insurance records. In various texts, what is considered as the initial state in changing the pension fund is a forced change as a result of matters such as changing the service device, and in limited and exceptional cases, the voluntary possibility of change has been recognized. Another important point in this regard is the determination of the person responsible for paying the difference in insurance premiums that are transferred between the two funds, which is doubly important due to its importance. This task is in some cases the responsibility of the beneficiary and in some cases the responsibility of the government. In view of the above-mentioned points, it seems necessary for the legislator to adopt a unified procedure regarding the transfer of insurance records in a way that solves the problems of the insured and the funds.

Arbitration in the settlement of disputes of the Exchange Organization is such that this organization through the arbitration board can resolve any violation or complaint internally. In this regard, the Securities Market Law approved in 2005, in order to resolve the disputes of market participants, while providing for the three authorities of the stock exchange board, centers and the arbitration board, has also ruled over rules and regulations. Mechanisms that distinguish such proceedings from those of other public and private authorities, such as the courts of justice and the Court of Administrative Justice. Unfortunately, this distinction has received less attention in the judicial system of the country, as well as the procedure of the Court of Administrative Justice as a special administrative authority. As the procedure of the branches of the Administrative Justice Court as a special administrative authority indicates that the handling of complaints and grievances against the Exchange and Securities Organization is not within the competence and competence of this authority. Accordingly, it is necessary to investigate the origin of some exceptions of general judicial or specialized administrative institutions in dealing with the realization of citizens' rights. Therefore, the present article uses a descriptive-analytical method to limit the process of litigation in the stock exchange to internal review boards and identify the weaknesses of such authorities in order to guide us with the desired principles of litigation in these authorities.

Jurisdiction of the General Assembly of the Court of Administrative Justice is a unique jurisdiction to issue a decision in accordance with the law. This General Assembly, which can issue a vote on unity of procedure, a vote on creation of a procedure and a vote on annulment, has found a significant role and place in our legal system, especially in the sources of administrative law and legal uniformity in this field. Everything in this article is about the value of these votes in the judiciary; The authorities, together with the Court of Administrative Justice, are under the supervision of the Supreme Court, which monitors the proper implementation of the law in the courts and the uniformity of law enforcement in the country. On this basis, if a decision is issued by the General Assembly of the Court of Administrative Justice, especially the decision that is the unity of procedure and the establishment of procedure, the question arises what is its value in the judiciary. It seems that the decision of the General Assembly of the Court of Administrative Justice in the judiciary as a document and legal argument can be an effect that can create persuasion or not, but if this decision is in conflict with the opinion of the judiciary or the authorities Judiciary may invoke a conflict of opinion based on this judgment or a similar or different interpretation, although the reference law is not to resolve the conflict between the judgment of the judiciary and the General Assembly of the Court of Justice; the only authority that can resolve this conflict is the General Assembly. Is the country. This general assembly can end this dispute by issuing a unanimous vote. This result has been considered in several votes of unity of procedure of the Supreme Court in the form of an approach and solution of judicial procedure.

Developments in the formation and development of administrative proceedings in Iran after constitutionalism can be studied in four historical periods. The first period is the period of foundations, paper and imitation, which merely led to the passage of the State Council Law and its establishment. The second period is the period of experience and experimentation, which coincides with the Islamic Revolution and the approval of Article 173 of the Constitution and the establishment of the Court of Administrative Justice from 1981 to 2006. The third period is temporary and temporary reforms that with the passage of the law of 1385, we are witnessing changes in the administrative proceedings. Finally, the period of development of administrative justice is with the approval of the Law on Organization and Procedure of Administrative Procedure approved in 1392. In this article, an attempt has been made to analyze these periods in the framework of the general theory of administrative proceedings. The most important finding of this research is that by reflecting on the course of developments and events, despite the shortcomings, we have witnessed the development and independence of administrative proceedings in the Iranian legal system.