JOURNAL OF MODERN ADMINISTRATIVE LAW RESEARCH
Year:2021 | Volume:3 | Issue:6|Papers Count:7

The requisite of public administration and complexities of governance result in ad hoc privileges for governments in some particular conditions. Depiction of government place in a legal system and deliberation of its liability borders eventuate in responsibility extent recognizing proportional to administration power enhancement. Based on a bilateral relation among administration and civilians the more responsible government is, the more freedom will be guaranteed. Jurists ascribe adherence of government’ s civil liability rules from a specific system to balance making efforts for supporting public interest and protecting administration authorities simultaneously. However, in some cases which incurring a loss governments will not be known liable according to peculiar governance expediency. On the other hand, continuation of social life and importance of public order retaining need to government intercede on restitution. Whereas exemption zones are not numerous, we can talk about absolute exemption in some scopes of governance and limited ones in others.

Administrative proceeding is a sub-discipline of formal law which is, along with other proceedings, responsible for enforcing the substantive regulations related to administrative violations of government officials and public institutions. The relationship between trials has always been the subject of debate among legal thinkers leading to controversies. Are administrative proceedings independent of or a function of judicial proceedings? A consequence of this controversy is the choice involved when a single issue with a unique criminal nature and administrative violation is simultaneously raised in both administrative and judicial authorities: should the administrative authority stop the proceedings and wait for the outcome of the judicial proceedings to be known or does he have the right to handle the case independently and make a decision, regardless of the verdict issued by the judicial authority? This article seeks to examine the various dimensions of this issue and appropriately answer the above-mentioned two questions, the first of which is the main research question and the second the sub-question. Differences in the nature, subject matter, and purpose of the two types of proceedings necessitate the independence of administrative proceedings from civil and criminal proceedings. As a result, if an issue is raised by the judicial authority and at the same time by the administrative authority, both can handle it and decide independently. However, the ambiguities surrounding the issue and the lack of clarity in legal procedures and doctrines call for independent and accurate research.

Today, in providing public services to the people, various types of contracts play a key role, and due to the growing need for this type of services and the lack of financial resources of governments (public sector), the importance of public-private partnership contracts doubles. The principles governing partnership agreements require comprehensive knowledge of the general and specific rules and regulations of such contracts, which should be considered by the parties to the contract. The type of partnership, the life of the partnership projects, the financing of these projects, the political, social and especially economic developments of the society and finally the laws governing this type of contracts are among the factors that may create a special form of partnership contract. Therefore, the legal implications of these types of contracts and the incentive to participate are very important. Adherence to the rules and regulations of participation in projects will minimize the differences between the participants in the project and respect the rights of the parties to the contract. Carefully in the laws and regulations of the country, one can understand some patterns of public-private partner-ship. The present study seeks to review, analyze and finally formulate the principles governing partnership agreements in accordance with the existing laws and regulations of the country in order to facilitate and encourage private sector participation. The main purpose of this study is to provide principles that, while governing this type of contract, can make the conclusion of this type of contract attractive both for the government and other executive bodies and for the participants.

Governments, like other individuals, sometimes cause harm to citizens due to some excesses in their activities. In such cases, is the government obliged to compensate? According to the theory of “ acts of tenure and sovereignty” proposed by French jurists, the government is solely liable for damages resulting from the exercise of its tenure. Article 11 of the Iranian Civil Liability act also does not require the government to compensate damages resulting from the exercise of sovereignty. In my opinion, this separation is not legally based on reality and is not commensurate with the truth of administrative actions; Because all the actions of the government -unlike private individuals-are in the direction of providing and providing public services. Of course, in some cases, due to Mohsen or other justified reasons, the government may be exempted from paying damages, which in these cases is not contrary to the previous statement (the principle of government responsibility).

Supervising the actions of government agents, especially members of parliament, in addition to monitoring its approvals, is one of the basic components of achieving good governance and holding public officials accountable. In Iranian administrative law, the first step in this field took practical form with the passage of the Law on Supervision of the Conduct of Representatives. In this article, an attempt has been made to analyze the current system of monitoring the behavior of members of parliament and identify the challenges facing it in order to improve some of the problems related to the control of government agents. The results of the study show that in the Iranian administrative law system, despite the efforts made to strengthen and monitor the professional conduct of representatives, there are still many shortcomings such as insufficient powers and competencies of the supervisory body and lack of independence in adoption. The decision can be traced that the persistence of these problems, the accountability of the representatives of the nation and the realization of the rights and freedoms of the citizens will face difficulties. Therefore, it is necessary for the domestic legislator to take a comprehensive approach to the law on monitoring the conduct of deputies to address these barriers and shortcomings. These measures include increasing the competencies of the Board for Supervising the Conduct of Deputies, especially in the field of financial violations.

The complex relationships of human beings with each other and the need to choose the most effective method in regulating those relationships through legal systems, have prompted efforts to change attitudes toward over-attachment to the use of legislative tools for legal regulation. However, the fundamental question is what is the most effective method in this regard? The present study is an attempt to analyze methods of legal regulation by the government in the present era. The main question of the article is what is the relationship between self-regulation and the legislation and also to what extent this doctrine has been considered in the legislative system of the Islamic Republic? In response to the question mentioned in this study with descriptive-analytical method and using of official legal texts and documents, it was concluded that first, self-regulation as an effective tool available to the government, especially in the current era. And in terms of legal regulation, it can and should be considered separately from the legislative tools and also superior to it. Also, a review of the legislative system of the Islamic Republic shows that the lack of attention to the various elements of law, the existence of multiple legislative authorities and the inflation of legal rules, has led to neglect of the Technique of self-regulation in the legal regulation of human relations to identify and analyze the causes of inefficiency of the legislative system of the Islamic Republic.

The legislator of the constitution, in Article 166 of the this law provides for the judiciary to issue reasoned and documentary judgments to legal and (statutory) material based on which the judgment was issued. The same legal assignment is mentioned in Article 3 of the Civil Procedure Code. The above principle has created a capacity in the Iranian judicial system, which greatly compensates for the lack of comprehensiveness of applicable laws in judicial proceedings. The reference to legal principles in judicial proceedings is practically carried out, although such citations are not considered to be justified in practice. On the other hand, the existence of conceptual ambiguity in the meaning (legal principles) and the basis of the legal system in Iran has also contributed to the principles of the written law in the non-citation or arbitrary citation of judges. Therefore, while designing the concepts and categorizing the principles of law and listing the features of these principles and differentiating them from other similar concepts, it has been tried to investigate the relationship between legal principles and other sources in the judicial system of Iran And by expressing the criteria for the systematic citation of these principles, the impact of the legal principles in general and the general legal principles in particular should be shown in the development of the administrative rights of the country. These studies indicate that the Justice of the Supreme Administrative Court has a significant impact on the identification of the principles of administrative law and the development of these rights in the country.