Document Type : Original Article
Authors
1 Assistant Professor, Department of Business creation, Faculty of Entrepreneurship, University of Tehran, Tehran, Iran
2 Assistant Professor, Department of Law, Faculty of Social Sciences and Economics, Alzahra University. Tehran. Iran,
Abstract
Highlights
Proportionality of the legal-executive system Resolving disputes between executive bodies and the constitution
Hossein Sadeghi ,Assistant Professor, Department of Business creation ,Faculty of Entrepreneurship, University of Tehran, ,Tehran, Iran.
Elahe Marandi, Assistant Professor, Department of law, Faculty of Social Sciences and Economics, Alzahra University ,Tehran, Iran.
Disputes between executive bodies in any administrative structure are inevitable and are caused by several factors. The type of administrative structure, the interference of legal duties, the silence of the legislator in verifying the legal competencies of the agencies, and sometimes the nature of the activities of the agencies are among the causes of disputes between the executive agencies. To solve such a problem in any administrative system, in addition to the need for appropriate measures to be taken by the legislator to raise the grounds and factors causing these disputes, it is necessary to prepare and use an appropriate mechanism to resolve these disputes. The Iranian legal system has always tried to create the necessary legal capacity to resolve such disputes through non-judicial means. In the revision of Article 134 of the Constitution in 1989, this issue was considered and it was predicted that "in cases of disagreement or interference in the legal duties of government agencies if there is no need to interpret or change the law, The decision of The cabinet proposed by the President will be adopted and will be implemented." In 2007, based on this principle of the Constitution, the "Regulations on how to resolve disputes between executive bodies through the internal mechanisms of the executive branch" was approved, and in paragraph 26 of the Executive Rules of the Budget Law of the same year, executive bodies are prohibited from suing each other.
The mentioned resolution is currently the main basis for resolving disputes between executive bodies and has been implemented for more than a decade. Examining the experience of implementing the bylaws during the last 13 years in applying legal mechanisms for resolving disputes can clearly show the existing capacities and challenges and the progress of resolving disputes of executive bodies in the Iranian legal system. In addition, there are other related laws and regulations, such as the provision of Note 28 of Article 69 of the Law on Regulating a Part of Government Financial Regulations approved in 2001, which should be examined to determine the basis. Therefore, during a descriptive exploratory study with qualitative content tools, to study and explain the "relationship of the legal system governing the settlement of disputes between executive bodies with the principle of 134 C" while introducing the existing capacities in the Iranian legal system in the settlement on disputes of executive bodies and its relation with Article 134 of the constitusion, according to the executive experience of the last decade based on the implementation of the by-laws of dispute resolution and its separation from other methods of dispute resolution, to examine the challenges of the mechanism.
The research findings indicate that the dispute resolution system is different within the Dispute Resolution By-Law and Note 8 of Article 69 of the Regulatory Law based on two different legal bases. The legal basis and authority conferred on the Commission, the subject of the latter note, indicate that this dispute resolution authority is not related to Article 134 because the Commission is considered to be a quasi-judicial authority, which was foreseen by the circumstances of the time to resolve it. Dispute while Article 134 has given the Council of Ministers the power to resolve the dispute in condition of The war and did not include other civil disputes in normal conditions. Property disputes only include disputes over possession and do not include disputes over property contracts, sales, retribution, and so on. Therefore, the jurisdiction of the commission is the subject of Note 8, a special jurisdiction of the quasi-judicial authority. Therefore, when the issue of conflict of jurisdiction is raised, because the jurisdiction of the recent commission is special, it assigns general jurisdiction to judicial authorities. Judicial practice indicates that the courts properly in the face of such cases issue their disqualification on behalf of the non-judicial authority and send the case directly to the Supreme Court for determination of the competent authority and the court refers it to the Commission. A challenging issue regarding the Documentation Commission is the objection to the Circular of the First Vice President in 2016, according to which, in the presence of all civil disputes, including disputes subject to Note 8 and other disputes, it is sent to the Documentation Commission. However, this granting of jurisdiction is contrary to the by-laws on how to resolve disputes, because in the case of provincial property disputes, the resolution of disputes is the responsibility of the governor, and the documentation commission's investigation in these cases is against the by-laws. In the dispute resolution system based on Article 134, however, in cases such as paragraph "d" of Article 216 of the Fifth Plan Law and paragraph "b" of Note 10 of the 1998 budget and next year budget, the government proposed a law to guarantee the implementation of votes issued by the dispute resolution authorities to Parliament but it still faces the serious challenge of not having a permanent legal provision to prohibit executive bodies from filing lawsuits in the judiciary, and this problem has led the government to rule on the issue annually in the budget law and its executive regulations. Therefore, to solve this problem, it is suggested that in the implementation of Article 134 to create a quasi-judicial institution to resolve disputes between executive bodies and focus on resolving all disputes in that authority, the government, in line with organic legislation, presents a bill entitled "Exicutive mechanism of principle 134 of Constitution".
Keywords
Main Subjects
)