Preventive civil liability in administrative actions, Comparative study of Iranian and English law

Document Type : Original Article

Authors

• Narges Eskafi ¹
• Esmaeil Shahsavandi ²
• Amir Abbas Bozorgmehr ²

¹ Department of Law and Political Science, North Tehran Branch, Islamic Azad University, Tehran, Iran.

² Assistant Professor, Department of Private Law, North Tehran Branch, Islamic Azad University, Tehran, Iran.

Abstract

Highlights

Preventive civil responsibility in administrative actions
(Comparative study of Iranian and English law)

Abstract
Nowadays, due to social developments and the changing face of human civilization, a special place has been assigned to civil responsibility. "The principle of not harming others and the need to compensate for unjustified harm", which is one of the three principles of ethics and law, has doubled the importance of civil responsibility. Proposing the best and most efficient way to compensate the victims and reduce their number and severity and reduce social costs is the least that preventive civil responsibility can do. The concept of preventive civil responsibility has emerged with an economic analysis of responsibility. Preventive civil responsibility of the government in administrative actions is also one of the basic issues that can be raised considering the scope of the government's activities in matters such as the environment and transgenic products. Therefore, in this article, by using the analytical and descriptive method and taking into account the principle of personal responsibility and the necessity of accuracy in interpretation and analysis, the special conditions and rulings governing this responsibility in Iranian law are compared with English law. and be checked. The results of the research show that despite the similarities in the laws of these two countries, there are also certain differences in terms of function and implementation in this area.
Keywords: preventive civil liability, Iranian law, English law, compensation, administrative law.
Introduction
Today, the answer to these questions, why the causer of the loss should be held responsible in front of the victim, and what is the purpose of such responsibility in practice, and in general, how can the loss be compensated and managed in a fair way and at the lowest cost, from Anyone and anywhere in the world, as one of the important issues of civil responsibility, can be raised in Iran as well. In particular, it seems that civil liability in different legal systems (compared to many branches of private law) has the most similarity with each other and considering the globalization process of law and economy and finding the way of Western science and techniques to other countries. This similarity is increasing day by day.
According to the compensatory civil liability approach, a loss must first have occurred, and in principle, one cannot speak of responsibility based on the mere possibility of loss. Therefore, all efforts are after the occurrence of the accident and loss, and the duty of civil liability is limited to compensation. For a long time now, everyone has realized that the compensatory approach of civil responsibility, which necessarily seeks compensation after the damage has occurred, does not fulfill the purpose. So you have to think of a plan. In fact, in many cases, the damage done is essentially irreparable or very difficult to repair. Including the fact that in environmental categories, many of the damages caused cannot be compensated or it is very difficult to compensate them. Therefore, it is necessary to revise this approach and many recent theorists have paid serious attention to the preventive approach of civil responsibility.
Expecting such a function of civil responsibility requires that we deviate from the traditional function of civil responsibility, which was only concerned with compensating the damage caused, and add some value to its thematic development. In such a way that in preventive liability, creating the risk of heavy and irreparable damage is considered as the damage caused in traditional civil liability. In the new form of civil liability, unlike its traditional form, a person may be held responsible even without causing damage. Therefore, it can be said that preventive civil responsibility means the duty of individuals to avoid the risks attributed to them that result in certain or possible losses.
The theory of preventive civil responsibility also faces some criticisms. From a comparative perspective, some authors have said that "in preventive civil liability, many concepts are contingent and non-deterministic. Therefore, if this type of responsibility is accepted, in many cases, various and countless lawsuits will be filed under the pretext of the possibility of loss, and the judicial system will face a large amount of lawsuits and, as a result, confusion. On the other hand, many producers and economic activists are always afraid of facing responsibility. Therefore, he acts very cautiously in his activities, as a result, ingenuity and creativity are prevented, and as a result, production, growth and economic prosperity are prevented." Some authors have considered the disadvantages of accepting preventive civil liability to be much more than its benefits.
In England, contrary to what it may seem, by accepting the legal equality of individuals before the law, the problem of not having civil liability of public law legal entities was not completely resolved. Although in the 18th century, the responsibility of the state was recognized, but due to reasons such as the immunity of the state to sovereign acts, the recognition of full responsibility for legal entities under public law was generally hindered. In other words, it can be said that insisting on "private and public legal inequality" gave way to appeal to reasons such as the performance of sovereign duties, the good intentions of the authorities, or the seriousness of their duties. These arguments generally state that public law legal entities in the process of governance must choose and make necessary decisions among a wide, diverse and sometimes uncollectible range of interests and matters, and the harm that is the result of the decision-making authority is not It can be attributed to these institutions and individuals; Because it was not possible to act without incurring losses.
The main issue in this article is to investigate the feasibility of preventive civil liability in administrative actions with a comparative approach in Iranian and British law. Regarding the background of the research, it should be said that the existing articles and books about preventive civil responsibility in the space of private law have been discussed. Issa Amini and Elias Yassou in the article "General rules of civil liability in English law with a view to Iranian law" have examined the basics of civil liability in the laws of the two countries and have concluded that although the laws of England are subject to the common law system and Iran is subject to the Roman system. It is German, the concept of justice and compensation for unfair losses is similar in the two systems. Saeed Farzaneh and Ali Abbas Hayati in the article "Jurisprudential and Legal Nature of Preventive Lawsuits", based on the principles of jurisprudence, have considered reasonableness, reasonableness, necessity and harm as the basis of preventive civil liability and suggested that the legislator in the procedural law Madani should pay attention to the discussion of preventive lawsuits. Hassan Badini and Samia Abbasi in the article "Evaluation of civil responsibility and safety regulations in the prevention of dangerous activities" believe that preventive measures through public law measures and the establishment of safety and regulatory regulations to realize the safety of citizens are an effective tool in controlling dangerous activities. has become
Officials and legal entities of public law and managers of the public sector, who are also considered as administrative law brokers, must pay attention to preventive civil responsibility in their actions and decisions, and in fact, in the regulatory phase, consider the precautionary principles and Safety is important.
conclusion
The principle of civil responsibility has been accepted in most countries of the world, but it seems that the issue of preventive civil responsibility, despite some similarities, is not the same in all countries. In a general conclusion, we will find that the comparative study of the laws of Iran and England is not very extensive. The reason for this is that in England, there are no civil law articles and we are forced to refer to legal rules and decisions obtained from the proceedings of judges and some other legal articles. Undoubtedly, one of the important goals of liability law is the preventive role of civil liability rules, in such a way that it prevents potential wrongdoers from committing harmful acts. In the legal realm of Iran and England, it was also found that there are many pressure levers that try to enter the scene with the aim of deterring and protecting the rights of the affected person.
Realization of preventive civil responsibility definitely has a more important role for the government and government organizations; Because today, due to the occurrence of natural disasters, environmental crises and the interference of the government in the natural environment, the possibility and probability of damage to people is more likely than ever. Therefore, it is necessary to predict preventive civil liability for administrative organizations. Therefore, since Iran's Civil Liability Law (1339) does not pay attention to this type of responsibility, the first suggestion is to amend this law by considering this type of responsibility. The second suggestion is the application and application of preventive civil liability through judicial procedure, in the sense that the courts in the field of private lawsuits as well as the Administrative Court of Justice in the field of public law should pay sufficient attention to the function and effects of preventive civil liability and in their decisions Pay attention to this basis.

Keywords

• Preventive civil liability
• Iranian law
• English law
• compensation
• administrative law

Main Subjects

• Adaptive Administrative Law