نشریه دولت و حقوق
سال چهارم شماره 2 (پیاپی 12، تابستان 1402)

AbstractOne of the legal doctrines that has been noticed since the last century and its implementation has solved many judicial problems, is the doctrine of "Exhaustion of Administrative Remedies". According to this doctrine, which indicates the necessity of administrative proceedings before judicial proceedings, all possible administrative steps must be completed to deal with the requests of individuals before the case is submitted to the judicial authorities. Therefore, the present article, which is written in a descriptive-functional way, seeks to answer the question that what are the advantages and disadvantages of the discussed doctrine and what is its position in Iran's legal system? For this purpose, after examining the concept and advantages and disadvantages of this doctrine, Article 16- 4 and Article 48 of the Administrative Court Law (approved in 1402) were discussed as the most important articles that recognized this doctrine and finally in the "Conclusion" section, a correction proposal has been presented for better implementation of this doctrine.

Developments in the amendments of the Administrative Court of Justice Act (1402 Amendments) move the Iranian administrative procedure system towards solving some of the major challenges of people's litigation, however, some other challenges in the text of the amendment draft, especially the competence of the court to deal with effective institutions in the public sphere, were not resolved due to various reasons, including the opposition of the high judicial authorities in the process of the hearing process of the State Exigency Council, but the innovations contained in the amendments make this Act generally progressive and specifically in the field of designing mechanisms for the enforcement of rights through changes in the conditions of being a beneficiary and the possibility of filing a complaint by the "Prosecutor General", "General Inspectorate of the State", "Supreme Audit Court", "Related Non-governmental Organizations" and "Deputy common rights of the Court" has made a progressive.

Based on Article (5) of the Administrative Court of Justice Act, the Head of the Administrative Court of Justice has two administrative and judicial positions in Iranian legal system. Despite the limitation of the jurisdiction of this official to preside over the first appeal branch of the Administrative Court of Justice, based on other articles of this law, different jurisdictions are provided for this position in connection with the branches, general board and specialized boards of the court. Among these articles, the Article (85) of the Administrative Court of Justice Act, which in some cases provides the Head of the Court with the authority to issue an order rejecting the petitions presented in the General Council and in some cases, he has provided this authority for this position to refer the issue to the court branches for consideration, based on the fact that the objectionable resolution is ad hoc. Based on the findings of this article, the aforementioned jurisdictions for the Chief of the Administrative Court of Justice are not consistent with the correct judicial system and the provision of these jurisdictions for the Head of the Administrative Court of Justice has provided the ground for the confusion of administrative and judicial powers. Secondly, determining an important part of the jurisdiction of the General Council of the Administrative Court of Justice has been placed in the jurisdiction of the Head Court. Based on this, in order to create a correct judicial system, it is suggested that while limiting the jurisdiction of the Head Court to manage and supervise the members of the court, the judicial powers of this position should be removed.

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?

Fair trial is one of the most important discourses in legal literature, which aims to achieve a favorable legal and judicial system that protects the rights and freedoms of individuals in the best possible way and realizes justice in all areas. Administrative proceedings are not an excepted and must be subject to the standards and principles of fair trial. The principles of fair trial are divided into two categories: general and comprehensive standards of fair trial and specific standards of fair trial which oversee the three stages of proceedings and administrative lawsuits (file action, hearing a case and decision making about the case and its enforcement). In this article, which is written with a descriptive-analytical method, are analyzed the recent developments and amendments of the Administrative Court of Justice Act in the section on the execution of judgments from the perspective of the principles of fair trial in the phase of judgment issuance and execution and concludes that a significant part of the recent developments in the field of execution of judgments has been a positive step towards the realization of fair trial.

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.