نشریه پژوهش های نوین حقوق اداری
پیاپی 17 (زمستان 1402)

The principle of transparency is considered as one of the basic principles and elements of good governance. According to this principle, governments are required to abandon confidentiality and make decision-making processes available to all citizens. In this regard, especially institutions such as legislatures and local councils have a special priority to adhere to the principle of transparency. Islamic councils in Iran are considered as one of the important elements of the governing system and through these institutions, local people can be influential in some local affairs. The question is, to what extent do Islamic councils, as an example of a system of governance, act transparently in their decision- making process? Examination of the laws and regulations related to Islamic councils shows that in some cases the principle of transparency has not been observed, such as the lack of prior publication of the regulatory program or the lack of obligation to publish regular detailed discussions of councils. The present research has been done by descriptive and analytical methods.

Employing competent and capable forces in a fair and equal process is a necessary condition for the realization of the desired administration and optimal performance of public services, which is realized through the implementation and recognition of the principle of equality of opportunities and employment justice. These principles have been recognized in the third and twenty-eighth principles of the Constitution and Article (41) of the Civil Service Management Law. The contrast of employment quotas in public jobs with the principle of equal opportunities in entering the service is the subject of this article, and in this article it is discussed that according to the judicial approach of the General Board of the Administrative Justice Court, in what way employment quotas in entering public jobs contradict The concept of employment justice and the principle of equal opportunities? Although the expansion of quotas, especially towards the martyrs, as well as the selection of localities, is the dominant practice of the legislator in recent years; But the findings of the research indicate that according to the procedure of the General Board of the Court, it can be concluded that the establishment of any type of quota should be based on strong grounds and arguments that justify the difference in treatment in order to reduce inequalities and in line with the public interest. Every quota should be interpreted narrowly so as not to restrict the way to equal opportunities in employment.

Today, the oil and gas industry is the center of policy and strategy of large and developed countries. In oil-rich countries, one of the most important contractual issues in the upstream sector of the oil and gas industry is the transfer and development of technology from foreign companies that own technology to oil-rich countries, which leads to the development of technology in these countries and the maximum use of their internal power. . The author's hypothesis is that the transfer of technology in general in the oil and gas industry in Iran is faced with a fundamental legislative problem because the existing laws and regulations only state some general principles. Therefore, Iran's legislative environment is dependent on creating appropriate legal bases in oil and gas rights for technology transfer. In oil and gas contracts, the issue of technology transfer is in the form of attached conditions or appendices, which sometimes have played an insignificant role in reducing the country's dependence on technology due to the generality and lack of guarantee of effective implementation. Secondly: In contracts of the upstream sector such as cross-selling and the new generation contract model known as IPC, if the components of the policy cycle, especially the formulation and implementation of policies are strictly followed, it becomes an important factor for strengthening the national and strategic interests of Iran. to be

Administrative investigations and inspections are among the mechanisms that administrative authorities usually carry out after violations occur in the administration.One of the ways to collect information is to obtain information from witnesses and informants.But it may be easy to provide information against the authorities.They will not be administrative or they will face risks.Therefore, it seems necessary to foresee some rights and guarantees for their safety.Due to the lack of protective provisions for witnesses and informants to participate in investigations and administrative inspections in the Criminal Procedure Law approved in 2012 and also the Statute of the International documents, provisions regarding the protection of witnesses and informants to participate in investigations have been provided.On the other hand, in the regulations related to quasi-judicial criminal authorities, the rights of witnesses have been paid sporadically.In this article, with an analytical-descriptive method and a comparative approach, while identifying some of the most important examples of these rights and guarantees, we have provided a legal framework for these rights for witnesses, informants and other citizens in the process of administrative proceedings in quasi-dedicated courts. can also be applied criminally.This is significant considering the absence of a single administrative procedure law. In the end, due to the legal vacuum regarding the rights of witnesses and informants in the process of investigations and administrative inspections, we suggested that the legislators, regulatory authorities, as well as administrative judges pay attention to this matter and provide a suitable legal framework and judicial procedure in this field.

Judicial review of administrative actions is one of the fundamental issues in modern public law. Based on this, any authority or institution that performs administrative action can and should be subjected to the most effective type of review, that is, judicial review. Beyond the theoretical basis of the possibility or refusal of the Court of Administrative Justice to examine the approvals of the National Headquarters to deal with the Corona virus in Iran, the recent decision of the General Board is of particular importance in terms of understanding the performance of the Court itself regarding the competence or lack of competence in this regard. Therefore, the main question in the present article is that "Does the Administrative Justice Court consider itself competent to deal with complaints about the approvals of the National Headquarters to deal with Corona?" Scrutiny in the recent judicial decision shows that although the general board does not directly and officially consider the approvals of the National Headquarters to deal with Corona as voidable, the possibility of revoking the approvals of this institution has been accepted by the general board, at least in practice; Although the weakness in legal reasoning in the said decision and especially the failure to refer to the general principles of administrative law in it can be criticized.

With the aim of solving the problems of traditional assignment of projects to contractors, a system was launched to solve this problem. But according to lawyers, in this situation, the will of the parties will be flawed. This research was carried out by analytical-descriptive method and intended to answer the question that what are the defects of will in online contracting contracts from the point of view of administrative law? It was concluded that the lack of an executive document for the establishment of the online system has caused that no legal obligations have been placed on the shoulders of government and governmental bodies, and therefore, in the state of semi-cooperation with this system, the organizations that only have the right to issue licenses in parts of the project, somehow will They become parallel with the main trustee. The confusion between the two establishments of "inquiry" and "license" and the lack of administrative obligation to respond to the inquiry and its other challenges have provided the basis for the contractor to be selective. Therefore, it is suggested that while preparing the legal-executive document for handing over in the online system, all the country's organs are required to attend it and the obligations of each organization regarding the inquiry should also be clearly mentioned, while the authority of that organ is only limited to issuing a license and after that not have the right to interfere more in the project.

With the growth of legal entities, the debate over the possibility of committing a crime by them and their responsibility for committing a crime arose among jurists around the world. Obviously, due to the different nature of legal entities from natural persons, the penalties applicable to these persons should also be in different cases from natural persons. Article 20 of the Islamic Penal Code of Iran is dedicated to determining the penalties applicable to legal entities. The emergence of criminal responsibility of legal entities in the Iranian penal system - as a principle - and the precedent of this issue in the French penal system, provided a great opportunity for a comparative study of these two systems before this descriptive-analytical study. . Realizing this fact, the French and Iranian criminal regimes have provided guarantees for the implementation of mandatory measures such as fines, prohibition of professional and professional activities, prohibition of capital increase, prohibition of issuing commercial documents and issuance of convictions for this purpose.

credit can be imagined in public, private and government formats. One of the important types of mines is oil and gas mines, which have been presented with various theories in jurisprudence as well as laws and legal doctrine regarding the ownership of them from the public and private aspects. The present research deals with the structural explanation of the private and public ownership system in the form of oil and gas mines based on jurisprudential and legal foundations by examining jurisprudential and legal documents. The results of this research show that, although the jurisprudential approach and even the laws initially prefer private ownership over public ownership, and with the passage of time and the transformation of oil and gas as one of the national wealth, public ownership has sovereignty over them. In determining the rules governing public wealth, one can pay attention to the attitude of jurists in determining the nature of the relationship between Islamic government and Anfal, and in general, the approach of jurists in determining the nature of the relationship between Islamic government and Anfal can be seen in cases such as: inherent priority or ownership He gave priority to the imam's real person, the possession of the imam, etc.) The research method in this study is descriptive-analytical, and the library method was used to collect the sources.

The Corona virus epidemic caused numerous economic, social, health, etc. problems all over the world. This virus showed the power of nature to the world again. The many waves of this virus epidemic continuously put the lives of citizens at risk. Among the most important issues that were noticed by citizens and media in Iran at the beginning of the Corona virus epidemic, was the lack of adequate and timely information from the government about the various aspects of the spread of this disease, especially in the field of prevention and treatment. Regardless of the consequences of not providing sufficient and timely information, the spread of the Corona disease caused the right to information in the field of health to be paid more attention. Based on this, citizens have the fundamental right to receive accurate information about diseases, viruses and other factors that threaten their health. On the other hand, related public institutions are also obliged to respect this right and will be held responsible if they do not do so. Therefore, the present study tries to identify the right to information in the field of health as a fundamental human right. Recognition of this right can be the basis for creating civil and even criminal liability for the government in case of fault.

While Good Faith has been recognized as a common concept in the various branches of law, in public law, it is rather a new concept. In this field, good faith is a necessary and fundamental concept based on the modern right-based approach, particularly for citizens to be supposed trustworthy, along with loyalty of state to its administered people. Furthermore, assuming good faith for the state plays an important role to promote efficiency in society. Honesty, loyalty, and fair measures, or justifiable ignorance and forgivable error are two meanings propounded for good faith, as opposed to malice, abuse of authority, and fraud. Like Justice, Fairness, and Good morals, the definition of good faith which has been regarded as a subjective and relative concept, is difficult and with ambiguity. Of course, this concept is better explained by its oppositions and applications. Good faith in some applications is presented as a legal principle and standard of behavior, while in others as a legal presumption, facilitate the burden of proof and repudiators must prove their claims. This article seeks to analyze the concept of good faith and recognize it in public law, especially based on its application in administrative laws and cases. Although the meanings and definitions of good faith in public law are not far from other fields, their applications are different. So introducing this concept can gradually lead to an evolution in Iran’s public law system.

Taxpayers mostly wish to avoid paying or paying lower taxes. Lower payment or non-payment is sometimes done by violation of tax laws, other times not a violation. If paying lower tax don't violate the law, it will be either legitimate or illegitimate. Paying lower taxes illegitimately by using legal means is called tax avoidance, which creates a tax gap and erodes tax equality. For this reason, the rise of anti-tax avoidance rules is necessary, and in the Iranian legal system, we have not currently comprehensive rules on anti-avoidance. In this article, the authors have a study on the immature status of tax avoidance rules by an analytical-descriptive and critical approach. The present study has been done in three categories: firstly, on Rules and regulations of the Iranian legal system, secondly on Anti-avoidance rules and doctrines, and, thirdly on the challenge of creating anti-avoidance rules and the dimensions of the existence of these rules. Consequently, we have concluded that The Anti-avoidance rules have not been maturely been raised in the Iranian Legal System and this situation becomes more understandable by the study on foreign law. In addition, there are some challenges in the emergence of anti-avoidance rules which arise in two dimensions: substance and jurisdiction.

In any government, reforming the administrative policy in a way that makes it possible to achieve as many goals as possible is the main issue; And these developments have a double sensitivity towards the country's property and documents registration organization, as an authority for establishing the rights of individuals, considering its structural and functional position in establishing legal-judicial security. However, the results obtained from three decades of transformation programs have a significant difference compared to the intended goals. Therefore, considering the distinction between the managerial nature of the administrative system and the bureaucratic authority that governs the governing institutions, the main question is, what role and position do the rules of administrative law play as a result of the changes in the registration institution?Regarding the research problem, in order to focus on the mutual influence of administrative law (basis) and administrative system (method), there is no background. Therefore, the current research has investigated the role of legal rules in the emergence of administrative problems and how to solve them using a descriptive-causal analysis method. The data collection in this study was done by documentary and field method. And the findings of the research indicate that, in general, the rules of administrative law, due to defects and omissions in the supervision of diagnostic qualifications, have acted in the opposite way in the implementation position, therefore, the solutions presented with the approach of solving the problem of supervision, imply the realization goals will be.

With the increasing use of the Internet and cyberspace, several countries decided to organize cyberspace. Hence The Supreme Council of Cyberspace was established in 2011 by the decree of Ayatollah Khamenei for decision-making and policy-making in the field of cyberspace. In recent years, the council has adopted several legal rules in the field of cyberspace. Given the extensive powers of the High Council of Cyberspace in formulating binding regulations and creating various rights and duties for citizens, this article seeks to answer the question of the necessity, obstacles and possible ways to monitor the decisions of the High Council of Cyberspace in What is the legal system of Iran? In the present study, in a descriptive-analytical format, it was concluded that although factors such as the ambiguity of the nature of the decisions of the High Council of Cyberspace and the necessity of publishing the resolutions of this council, prevent monitoring the decisions of the High Council of Cyberspace, but by removing these obstacles and Considering the need to monitor these resolutions, the people, the jurists of the Guardian Council, the Supreme Leader and the Court of Administrative Justice should provide the ground for monitoring the resolutions of this council, and the procedures contrary to this finding need to be corrected.

Administrative decision-making procedures are the methods related to the individual and general decision-making process that are required in writing or in the form of administrative procedure laws. Creating certainty and stability to support citizens and the efficiency of the administration has been one of the reasons for codifying these rules. Historically, the laws of administrative procedures have passed three generations. The first generation of acts sets out rules for making case-by-case decisions, the second generation sets out requirements for enacting general rules in a hierarchical manner, and the third generation sets out rules for conducting administrative actions interactively and collaboratively between different institutions. The main purpose of this article is to examine the concept of administrative procedure, the history and content of the administrative procedures acts and procedural requirements in the two systems of administrative law in Germany and the United States of America as two important systems. The method of the article is descriptive, analytical. The concept of administrative procedure and the content of administrative procedure acts are described and the similarities and differences between the administrative procedure actts of the United States of America and Germany are analyzed.

The fourth principle of the constitution is to guarantee the rule of Sharia in Iran's legal system. The automatic supervision of the Guardian Council on the approvals of the Parliament in advance shows the importance of proportionality between Sharia and the law. The annulment of a government regulation due to its contradiction with the Sharia is beyond the jurisdiction of the Court of Administrative Justice. It is enough to state clearly that "if it is not against the law, it is not against Sharia" and the final decision is left to the Court of Administrative Justice. The correct analysis of this sentence shows the basic judge's view on the concept of law. Despite the strong disagreement among jurists about the nature of the law and its sphere of influence, in cases where it is written. The Shura's reference to the approved laws indicates that the later law It is a declaration of non-contradiction with the Sharia as a government ruling. Refraining from expressing an explicit opinion, especially in matters that are a product of the modern world, such as taxes, social security, etc., is not compatible with the dynamics of jurisprudence. Transparency in the declaratory judgment is considered one of the important principles of the proceedings, which provides the possibility of persuasion and preventing the re-approval of the illegal provision.

Rivers, as the vital arteries of the earth, are among the national property and God-given wealth, and factors such as unprincipled handing over of the bed and seizing their privacy and changing their use have seriously threatened the environment's ecosystem. Currently, in the normal laws, exploitation of the river beds is prescribed in the form of temporary cultivation in the form of a lease contract, and the establishment of encroachment and any encroachment on these lands is allowed with the permission of the Ministry of Energy. The transfer of the ownership of riverbed benefits to private individuals without adequate and effective supervision by relevant organizations has become the source of many problems and crimes that cannot be ignored. The main question in this article is what is the position of the river bed in the property rights system and in what legal form is its transfer prescribed so that its criminal effects can be analyzed and studied. By studying the library resources and examining the nature of rivers in the property rights system, this research has reached the conclusion that the exploitation of river beds as national property should be done exceptionally and with the permission of the government, without transferring its benefits under a lease contract.

Disability is one of the protections provided in the Social Security Law, which is approved in various articles, including articels 7, 8, 13, 14, 17, Article 2, Article 3, Articles 60, 61 and 66, as well as Articles 70 to 75 of the Social Security Law. 1354 is dedicated to it. The purpose of establishing a disability pension is to support people who lose part or all of their ability to work due to various accidents or illnesses, and depending on the type of injury, the issue of protection can be in the form of general disability, partial disability. . In addition to the legal provisions mentioned, the Social Security Organization, as the custodian of disability protection, has issued several directives and instructions, the latest of which is the directive for the aggregation and summary of directives and administrative orders for continuous disability. Which provides comprehensive rules on how to establish a pension. On the other hand, an important part of the lawsuits filed in the Administrative Court of Justice is dedicated to the issue of "obligation to establish a disability pension" and "objection to the decisions issued by medical commissions" and the General Assembly of the Administrative Court of Justice The issue of disability has been addressed, especially in the case of medical commissions. The results of this study show that the branches of the Court of Justice have the authority to comment on the history of the disease, which is effective in the matter of pension