The Journal of Modern Research on Administrative Law

The Journal of Modern Research on Administrative Law

The legal system governing government treaties in the light of good governance

Document Type : Original Article

Authors
mitra esmaeili 1
ali radan jebeli 2
manouchehr tavassoli naeini 3
1 PhD Student in Private Law, Islamic Azad University, Isfahan Branch (Khorasgan), Isfahan, Iran
2 Assistant Professor, Department of Law, Faculty of Humanities and Law, , Islamic Azad University, Isfahan Branch (Khorasgan), Isfahan, Iran
3 Associate Professor of Law, Faculty of Administrative Sciences and Economics, University of Isfahan, Isfahan, Iran
10.22034/mral.2021.523354.1110
Abstract
It is possible to improve the legal system governing the government contracting contract in terms of quality, in the light of paying attention to some principles. These principles are conceptually related to what is known in the political, legal, and managerial literature of the 1980s as "good governance," and have common and intertwined boundaries. Transparency, participation, rule of law, accountability, efficiency and effectiveness are among the most important of these principles. In this article, after briefly explaining the theory of good governance and explaining its definitions, the authors have criticized the system governing government contracting contracts in the light of the principles of good governance. In some cases, criticisms of the law and in some cases refer to procedures, decisions, and policy-making in this regard. At the end, suggestions are made to amend the law and change the method of determining methods and decision-making. In general, the use of good governance model in administrative contracts seems to be a good model for improving, promoting, efficiency and effectiveness of the legal system governing government contracting.

Highlights

The legal system governing contracts is different in the two areas of public law and private law. What is considered important is whether there is a difference between the administrative and private contracts in terms of their nature and effects and principles or not. Today, administrative contracts are influenced by the principles of good governance or, as some jurists call it, "better-ruling". Since many sources of governments finances are through governmental contracts and contractual agreements, and these contracts involve a huge amount of money, they must have precise and clear oversight mechanisms in the process of concluding and performing. Administrative contracts are a good opportunity for the development and transformation of the financial and economic system in a country, but on the other hand, they are a good opportunity for opportunistic people to earn illegitimate income. In this regard, adherence to the special legal system called the system of good governance in the light of indicators such as accountability, participation and clarification, has created a special legal system for the administrative contracts. Differences regarding the tenders' and auctions' holding, ie at the conclusion stage, the conditions governing the performance of administrative and private contracts, and finally, the issues existing at the end of administrative contracts, reinforce the idea that the legal system governing the public contracts is different from the legal system governing the private contracts. In this research, the author seeks to express these differences by emphasizing on the principles of good governance.

Keywords
Government contracting
administrative contract
good governance
efficiency and effectiveness
rule of law
Subjects
Ansari, Valiullah, Generalities of Administrative Contract Law, Second Edition, Lawyer Publishing, 2009.

Bix, Brian, Culture of Legal Theory, First Edition, Ney Publishing, 2010.

Jafari Langroudi, Mohammad Jafar, Legal Terminology, 16th Edition, Ganj-e-Danesh Publishing, 2006.

Haji Dehabadi, Ahmad, Requirements of Legislation, Second Edition, Research Institute of Islamic Culture and Thought, 2006.

Habibzadeh, Mohammad Jafar, Principles governing government contracts, first edition, Jangal Publishing, 2011.

Danaeifard, Hassan, Management Challenges in Iran, First Edition, Samat Publishing, 2003.

De Michel, Andre and Lalumi Yer, Pierre, Public Law, translated by Abolfazl Ghazi Shariat Panahi, first edition, Dadgostar Publishing, 1997.

Rezaeizadeh, Mohammad Javad, Administrative Law 1, First Edition, Mizan Publishing, 2006.

Shami, Mohammad, Analysis of the Nature and Effects of Administrative Contract in Iranian Law, First Edition, Dastan Publishing, 2009.

Shami, Mohammad, Administrative Contract Law, First Edition, Jangal Publishing, 2014.

Shidfar, Zein Al-Abedin, Public and Administrative Law, Second Edition, University of Tehran Press, 1964.

Tabatabai Motameni, Manouchehr, Public Freedoms and Human Rights, Third Edition, University of Tehran Press, 2003.

Naqibi Mofrad, Good Governance in the Light of Globalization of Human Rights, First Edition, Shahr-e-Danesh Publishing,2010.
 
Eslami, Reza, Foroumand, Laden, The Impact of Privatization on Good Governance, Journal of Constitutional Rights, No. 15, Year 8, Summer 2011, pp. 1-38.

Bani Ahmad, Morteza, Unequal Legal Conditions in Contracting Contracts and Its Beautiful Consequences, Journal of Parliament and Research, Volume 10, Fall 2003, No. 39, pp. 104-118.

 Habibnejad, Seyed Ahmad, Salmani Sibani, Marzieh, The Ratio of the Theory of the Welfare State and the Legal System of the Islamic Republic of Iran in the Field of Poverty Alleviation, Quarterly Journal of New Administrative Law Research, Second Year, Fifth Issue, Winter 2016, pp. 59-88

Dashti, Taghi, Haeri Esfahani, Shahab, Arbitration in Government Lawsuits with a Transformational View of Article 139 of the Constitution, Scientific Quarterly of New Research in Administrative Law, Second Year, Second Issue, Spring 1399, pp. 135-153.

Hosseinabadi, Amir, Economic Equilibrium of Contracts, Journal of Legal Research, Nos. 21 and 22, Winter 1997, pp. 121-151.

Sharifzadeh, Fattah, Gholipour, Rahmatollah, Good Governance and the Role of Government, Journal of Management Culture, First Year, No. 4, Fall and Winter 2003, pp. 93-109.

Zarei, Mohammad Hossein, Good Governance, Sovereignty and Government in Iran, Journal of Legal Research, No. 40, Fall and Winter 2004, pp. 155-202.

Zahedi Mazandarani, Mohammad Javad, The Decline and Rise of the Welfare State, Social Security Quarterly, Second Year, Third Issue, Fall 2000, No. 6, pp. 129-164.

Hadavand, Mehdi, Good Governance, Development and Human Rights, Journal of Constitutional Rights, Third Year, Fourth Issue, Summer 2005, pp. 51-86.

Yazdani Zanvar, Hormoz, The role of transparency in achieving good governance, Journal of Constitutional Rights, Year 6, Issue 11, Summer 2009, pp. 49-70.
 
Nourzad, Mojtaba, A Comparative Study of Iranian and United Nations Criminal Policy in Combating Economic Crimes, PhD Thesis in Criminal Law and Criminology, Shahid Beheshti University,2009.
 
 
International fund for agricultural development,executive board-sixty-seventh session, Rome, 8-9 september 1999.

John bullivant, burgess.R. Corbett-nolan.A. and godfrey,K. good governance handbook, healthcare quality improvement partnership and good governance institute.2000

Rachel M.Gisselquist,good governance as a concept,and why this matters for development policy,UNU-WIDER,world institute for development economics research,working paper.NO 2012/30.

Wondwossen wakene,the law of administrative contract,prepared under the sponsorship of the justice and legal system research institute,2009
 
The Journal of Modern Research on Administrative Law
Volume 3, Issue 7 - Serial Number 7
Third year, 7th Issue, Summer 2021
Summer 2021
Pages 39-58

  • Receive Date 26 January 2021
  • Revise Date 21 February 2021
  • Accept Date 21 February 2021