نشریه پژوهش های نوین حقوق اداری
پیاپی 15 (تابستان 1402)

Modernity was formed and evolved on the specific context of political and intellectual developments of the late Middle Ages and the Renaissance and beyond, and all manifestations. It affected the individual and collective life of man and led to the emergence of modern law, of which the principles of fair trial are a product. Hence, the main question of this article is about the relationship between having the author elements of modernity and aspects of the legal system. For this purpose, it is necessary to first identify the objective and epistemological / value elements of the phenomenon of modernity as well as the four legal aspects, namely the "purpose" and "source" of law, the legal "method" and the "reference" of legislation. Iran and the United Kingdom and the relationship between these elements and their legal systems were studied using a comparative method and qualitative analysis.The findings of the study indicate the fact that the United Kingdom, due to the presence of most elements of new life (modernity), has a modern legal system and as a result; In the realm of principles and guarantees, the procedural rights of the accused employee are more developed, and the exercise of these rights is documented in human rights documents. In contrast, Iran lacks all the elements of modern law due to its maximum elements of modern life, and therefore, at present, it does not have the principles and guarantees of a complete and developed procedure in accordance with human rights documents.

The Legislative initiative, as a legislative tool at the beginning and inside of the more comprehensive legislative process, is one of the essential issues in the legislative studies law and legislation. Unfortunately, unlike its final product, the law, Iran's legal system has not focused, consistent, and dynamic attention. Therefore, to clarify the importance of this issue and the need to pay more attention to it, based on the existing circumstances, the present study aims to design a desirable model of legislative initiative in Iran legislative studies law by identifying the principles and effective components.The qualitative research method and thematic analysis had used. The research's data were collected using semi-standard interviews with experts in the field of legislation, elected using the theoretical sampling method. Data were analyzed using the thematic analysis method in the thematic network. Finally, a conceptual model of network measurement had constructed. The qualitative research findings show that the design of the desired model of the legislative initiative includes four comprehensive themes: "comprehension of the concepts, fundamentals, rules, and principles of the legislative initiative"; "Knowledge, expertise and scientific standards in the legislative initiative"; "participation of citizens and utilizing from the mechanisms of civil society"; And is a "specific legislative policy”. In addition, to "validate" the themes and the constructed model, two methods of evaluating the validity of the communicative method and the audit method have been used. To "reliability," two ways of reproducibility and transferability or generalizability have been used.

Public- Private Partnership (PPP) is a mechanism by which the private sector and the public sector work together to implement infrastructure projects and provide services. The aforementioned partnership contracts involve several risks, among which the most common and most effective risks are legal risks, based on the research conducted by the Fraser Institute in relation to the world economic freedom index, among the 14 components that consist of major problems and obstacles. were structural and executive in the field of investment, the multiplicity, instability and inappropriateness of laws are higher than other components. However, the studies show that it is possible to reduce the severity of the negative burden of legal risks governing such contracts by improving and standardizing the laws governing them, along with managing such risks with the help of conditional clauses in the contract.Therefore, the legal risks in the laws governing the field of public-private partnership were identified in this research, which were mainly caused by the inflation of current regulations, frequent changes of laws, contradictions of laws and regulations, lack of transparency of the legal system, and legislative deficiencies. Finally, by examining the changes in the legislative system governing public-private partnership contracts, solutions were presented and suggested to manage these risks in order to guarantee efficient executions for such contracts.

The conception of administrative justice in any legal system is a function of political action. That is, it is more a product of the political agreement of the nation of land than a metaphysics conception. This concept primarily focuses on the fair distribution of resources and then on fair administrative decisions. Administrative justice is the basis for the structuring of the administrative system into an advanced legal system that applies to the equitable distribution of wealth through administrative law and legal principles derived from the customary concept and are sometimes defined in procedural and substantive principles in administrative court proceedings. Therefore, we are faced with a concrete concept that understands the system of administrative law and public law as defined by legal principles. These concepts are shaped by common social values and, after legal incorporation, their customary concept becomes legal. The concept of administrative justice in the judgments of the Administrative Justice Court has been expressed in two principles of impartiality and proportionality. The first principle deals with the concept of administrative justice procedures and the principle of proportionality of its substantive concept. Therefore, the most important application of the concept of administrative justice is to determine the legal principles that are relevant to it in administrative proceedings and in the jurisdiction of the administrative justice court.

The right to social security includes the right to legal protection against social hazards such as old age, illness and disability, unemployment and the death of a guardian, and the loss of sufficient income to live in a manner worthy of human dignity; is. In a right-oriented approach to social security, individuals residing in a country are independent of belonging to a particular territory or geographical area and are members of the state-political system simply because they are human beings; they are covered by social security protections. Therefore, foreign nationals are also independent and do not need to be citizens of the country in which they reside or reside; They have this right, and domestic legal systems must live up to their international obligations and human rights; Overcome barriers to the full enjoyment of foreign nationals' right to social security. The process of guaranteeing the social security right of foreign nationals and protecting this right in the legal system; it is going at different speeds in different countries. Although some progress has been made in the legal system of our country; however, there are still significant legal challenges in the field of social security insurance for foreign nationals, which is the subject of the analysis of this article.

Political leaders, diplomatic missions, judges, lawyers, members of parliament, etc. have special immunities. Government employees also have an undeniable role to play as effective human resources in decision-making, and executive affairs. The main question of the forthcoming research is whether the administrative immunity of government employees is also acceptable or not? The research hypothesis that the absolute immunity of employees is rejected due to the requirements of the rule of law, but aspects of their relative immunity based on the legitimacy of the administration, has a logical justification in the type of relationship between employees and their superiors and their relationship Seen with third parties. This immunity, while being a special privilege for employees, eliminates their absolute irresponsibility and abuse of power by violating the law and its ancillary equipment. Therefore, employees have immunity from superior authorities in terms of professional independence and irresponsibility resulting from their illegal orders, as well as the enjoyment of judicial protection against third parties. Citizens also have the right to be prosecuted by the competent authorities in case of violation of current laws by employees. Hence, this special privilege ensures the independence and dynamism of the administrative structure in parallel with the rule of law and respect for the rights of the citizens concerned.

One of the most important commercial documents under commercial law is the cheque. Due to the importance of this payment document in commercial transactions, the legislator has assigned a special law to it and this law was amended in 2018 and based on this, new obligations have been placed on the Central Bank. Under the new amendment law, the central bank is required to fulfill its obligations to ensure transparency and oversight of financial and credit institutions and banks. Given the obligations of the central bank, which are considered in the law, it can be said that the central bank, as a regulatory body, has an important role in fulfilling legal obligations. The central bank's involvement in cheque-related operations can also be considered as a public benefit provider. Therefore, in this study, we seek to examine the innovations of the new cheque law regarding the obligations of the central bank. The results of this study show that the intervention of the central bank as a regulatory body can be justified. The research method in this research is descriptive-analytical and library method has been used in collecting resources.

The independence of local councils does not simply mean giving Enterprise to parts of the land such as cities, villages, etc. Rather, it means having the legal personality of public rights and having a degree of power and authority so that they can fulfill the serious duties and needs provided for in the constitution of the country and there is no obstacle for them. The lack of independence of local councils in performing their duties has faced them with a serious challenge, which's largely due to the centralized political system of the country. Because in a centralized system the central government and the councils are closely related. The greater the dependence of local councils on the central government, the wider the scope of central government oversight. The origin of the central government's oversight powers should be sought in constitutional principles and common law. This article intends to answer the question of what are the obstacles to the independence of local councils with a descriptive-analytical and practical method and take a leap to improve the efficiency of local councils by rooting out and examining the problems and challenges step by step. This requires long-term structural, legal, educational programs, including educational programs, law reform, culture building and local institutionalization.

Review and critique of the structure, procedure and competence of the Dispute Resolution Board "How to issue property ownership documents whose registration documents have been destroyed by war or unforeseen events such as earthquakes, floods and fires." From the point of view of administrative proceedings, especially from the perspective of fair trial, it is an issue that has been addressed in this research.The main idea of the research is that this board has jurisdiction and discretionary power compulsory and in fact, in addition to being a special Administrative Tribunal of registration, it also has some diagnostic competencies as an administrative institution. Using a descriptive-analytical method with a qualitative and dependent approach Library studies in this study, while answering the main question about the nature of The registration dispute resolution board, its pathology in order to improve the structure and competence of this reference and mechanisms have been presented. He also spoke about the necessity or non-necessity of the existence and continuation of the activities of this board in the structure of the country's registration authorities, and the results of these studies indicate the necessity of the continuation of the activities of this board, of course, with amendments

Public expectations from governments is different with Principle of legitimate expectations in administrative law. Historically, Principle of legitimate expectations in administrative law has been regarded as a distinctive protective principle for protecting citizens against government and administrative authorities. Legitimate expectations in administrative law is not a consistent theory, but primarily is the product of judicial precedent. But as long as is concerned to England, this principle like other overview principles is a judicial reaction to discretionary powers of administration and (unlike Germany and EU) has been applied in various situations. This makes this principle not only in conflict with other principles but makes it difficult to find a distinctive justification for applying it. This article with a descriptive method tries to approach to and recognize legitimate expectation in negative way: from trying to find and recognize a separate justifying base for legitimate expectations in legal doctrine and judicial precedent especially in England to recognition of distinctions to discern interior elements of the principle (legitimate expectations from reasonable expectations, legitimate expectations from legally enforceable rights and interests, legitimate expectations and contractual expectations, emphasis on internalist approach to legitimacy in contradiction with externalist approach to legitimacy and lastly, recognition of legitimate expectations as an enforceable interest in public law) in order to prevent some possible misunderstandings to comprehend this comparably new found principle in our legal literature.

Decentralization is one of the most basic concepts of administrative law and one of the important contexts for the participation of the non-governmental sector in affairs, which is the granting of legal personality to independent non-governmental units and recognition of general executive authority and decision-making in public affairs by non-governmental organizations. Non-governmental organizations are a newer type of public institutions for which the concept and characteristics explained by the legislator in Iran are not quite clear, which has led to differences in their examples. Judicial and organizational, as well as the identification of competent authorities during the trial, conducting a comprehensive research in this regard is helpful. This article seeks to answer the question of what is the meaning of public non-governmental organization in the relevant laws of Iran and determine the criteria for its recognition. In this research, an attempt has been made to answer this question with a descriptive-analytical method, and in particular, two difficult cases and challenges of its possible examples, namely the city council and the football federation, have been examined.

E-government is a natural product of the technological forces that improve government performance and provide citizens with better and faster access to government services. E-government is interpreted as the digitization and computerization of government affairs. As governments engage in innovations in organizational structure, guidelines, capacities, and the use of human resources, Government services, and oversight of public affairs. The states have used e-government to innovate, modernize, increase productivity and improve their performance. E-governance in its capacity provides the foundations of political democracy and direct participation of citizens in political decision-making and promises the promotion of nation-state to e-government-e-citizen. Government openness to the economy and the people refers to the transparency of government actions, the availability of government services and data, and government accountability for ideas and demands. The present study used a prescriptive–explanatory as well as the library data to answer how e-governance will play a role in achieving open government. The main finding is In addition to achieving transparency, accountability, service delivery and greater efficiency, faster and higher quality in e-governance, it also raises the level of more informed and intelligent participation of individuals.

The end consumer of goods/services has rights that are based on access to quality goods / services and reasonable prices. One of the ways to protect consumer rights can be to standardize the articles of association of companies providing goods/services and mention the obligations in this legal document. This research for the first time in an analytical-descriptive method seeks to investigate the possibility of protecting consumer rights with the solution of standardizing the articles of association of companies from the perspective of administrative law. It was concluded that the administrative bodies in charge of companies providing goods / services may be public or public, and the private sector usually has no place in the oversight of businesses. With this action, consumer rights can be mentioned as an obligation in the company's articles of association. Therefore, the responsibility of partners and managers of companies towards the consumer is limited, and the registration of this statute in the management of companies will mean the transfer of responsibility to society. In this case, the administrative challenges of companies regarding consumer rights are minimized and during the judicial action, the main culprits can be dealt with appropriately. Government or public trustees have sometimes acted independently, which in order to counter parallelism, it is necessary to designate administrative regulations, appoint a single institution as the main trustee of supervision, and determine the vertical or horizontal status of administrative relations.

The system of proving litigation in administrative proceedings is of undeniable importance for ensuring the rights and freedoms of citizens and guaranteeing the principle of the rule of law. In the present article, we intend to use a descriptive-analytical method to define and present various types of evidence, the quality of evidence in administrative matters and to examine the evidence in the administrative court and the real role of the judge in proving and distributing the responsibility of proof; While in the implementation of Article 96 of the Constitution, the laws have been enacted and validated in accordance with Islamic rules or Imami jurisprudence, so in some cases we refer to the criminal law and civil law of Iran. The procedure in the Court of Administrative Justice is different from that of legal and criminal courts, because the nature of these courts and their principles are different. Therefore, the procedure of those courts cannot be ruled by the Court of Administrative Justice. Imposing the burden of proof on a citizen who claims that the administration has violated the rule of law will be a serious obstacle to achieving the goals of administrative proceedings; Therefore, it is necessary to modify the rule of "Al-Bineh Ali Al-Mada'i" in the administrative proceedings and also consider the administration as a respondent, so that the administration is obliged to explain its decisions in a documented and reasoned manner and provide rational and legal grounds for the challenged decision.

Observance of laws and non-departure from the scope of legal authority is one of the most important conditions for the acquisition of lands and properties that occur within the scope of public plans, to the point of conflict between “securing the public interest” with “private property rights”, “community originality” with “individual rights” and the "rule of dominance" with the "rule of no harm". The purpose of the present study is to investigate the angles of illegal restriction of property rights of persons by approvals outside the authority of Article 5 commissions, which are reflected in the opinions of the General Assembly of the Court of Administrative Justice. Therefore, in this study, using a descriptive-analytical method, the most important opinions of the General Assembly of the Administrative Justice Court on the subject of research have been analyzed. The results show that the approvals of Article 5 commissions that have restricted the property rights of individuals by ignoring the principles and laws, the rules of Sharia and the departure from the scope of authority, have been annulled by the General Assembly of the Court of Administrative Justice. In this respect, the Court should be considered a symbol of the protection of private property rights.

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.

The most essential function of governments, whether theological or secular, as a living organ is to survive in the area under its rule, & the public wealth of each country provides the resources to meet the needs of this living organ. In today's society, the administration of justice in the areas of distribution, allocation & elimination of discrimination is an undeniable necessity for the survival of governments. Indeed, the greater amount of these resources, if properly managed or consumed, it will lead to the growth of sustainable government development & ensure the survival of governance. The first step in managing & exploiting public wealth is to identify all types & instances of public wealth. So far, only the tangible aspects of public wealth have been considered in Iranian public law, & the intangible aspects of public wealth have been neglected due to the lack of recognition of this type of wealth, both in the field of identification & in the field of management or consumption. Human capital as intangible public wealth is the most valuable part of a country's public wealth, which has been considered by governments in macroeconomics since the beginning of the present century. This article seeks to expand the conceptual space of the subject & express its problematic aspect & examine the various dimensions & aspects of public wealth, especially intangible public wealth, & in a word, to substantiate the concept of intangible public wealth.