Document Type : Original Article
Highlights
According to the scholars of administrative law, governments have two types of actions: A: Exercising sovereignty: Those actions in which the government is the ruler and has absolute power and by which it commands and rules the people, the exercise of sovereignty is applied. Becomes. These actions are legally different from the common actions between individuals. Such as enacting laws and regulations, imposing taxes and duties, expropriation of individuals, etc. B: Entrepreneurial actions: Those actions of the government in which there is no sign of political power of the government, but the government acts with the same goals of natural persons - which is for profit - are called entrepreneurial actions. These acts are legally similar to the actions of ordinary people because they are similar to the actions of individuals. Such as buying and selling, renting and leasing, mortgages, loans, etc. Governments, like other individuals, sometimes cause harm to citizens due to some excesses as a result of their activities and duties. These damages are sometimes due to the actions of the enterprise and sometimes occur as a result of the exercise of sovereignty. The question is, in such cases, is the government obliged to compensate? And does the difference in government actions affect the responsibility or non-liability of the government?
According to the Theory of Separation of Enterprise from Government Sovereignty, which has been proposed by French jurists for more than a century and at one time had significant supporters, the government was not liable for damages resulting from government actions. Has been solely responsible for compensating for damages resulting from the actions of the enterprise. Although today this theory is not very popular among lawyers due to the criticisms against it - even in France, which was the origin of this theory - but the Iranian legislator apparently considered this view in Article 11 of the Civil Liability Law and paid damages. It has not considered the exercise of sovereignty necessary for the government, and despite the fact that in some special cases, the civil liability of the government for the exercise of sovereignty has been accepted, it seems that this legal article still remains valid.
It should be noted that the present study is about cases where the responsibility does not lie with the employee, because in cases where the responsibility lies with the employee due to negligence or fault, there is no doubt about the responsibility of compensating the employee. As Article 11 of the Civil Liability Law states: "Employees of the government and municipalities and their affiliated institutions who intentionally or as a result of negligence damage to persons in the course of their duties are personally liable for damages." In this case, the legislature has not distinguished between tenure and sovereignty. The General Assembly of the Court of Administrative Justice, citing the beginning of Article 11 of the Civil Liability Law and emphasizing that it is their responsibility to compensate the damages caused by the fault and negligence of government officials, voted to invalidate paragraph 3 of Article 13 of the Civil Rights Act in the administrative system. Damages resulting from the fault of government employees by government agencies. The author also discusses the type of government responsibility for the actions of its employees in an article entitled. Therefore, the present investigation is about the fact that the damages are not documented by the actions of government employees and are related to the defects of the equipment of the mentioned departments or institutions, in which case according to Article 11 of the Civil Liability Law, compensation is the responsibility of the administration or It is the relevant institution, but in the case of the exercise of sovereignty, it has not compelled the government to pay damages whenever the actions of the government, which are carried out in accordance with the law in order to secure social benefits, cause further harm. In other words, we will analyze this apparent discrimination of the legislator in distinguishing between damages resulting from the exercise of tenure and damages resulting from the exercise of sovereignty.
According to this research, which has been done in a descriptive-analytical manner and based on library information, there are problems with the government's view of immunity from damages caused by the exercise of sovereignty, which is reflected in Article 11 of the Iranian Civil Liability Law. Governments seem to have abused the beliefs of the people, as well as the power at their disposal, to try to shirk responsibility for their harmful actions, otherwise there would be no difference in liability between individuals and legal entities, but also private and legal entities. Legal entities are not public and include the generality and application of the guarantee evidence. Yes, justified reasons may have a wider scope in the harmful actions of the government than the actions of other persons, but this does not change the rule and principle of liability and compensation. It is on this basis and principle that according to the religious teachings of the Islamic school, the Islamic government has been held responsible for the damages caused to its employees and agents. Among the narrative documents that indicate the government's civil liability for damages resulting from the exercise of government sovereignty are Imam Ali (AS)'s letter to Malik Ashtar and "Asbagh Ibn Nobateh's narration" that the Islamic government is responsible for damages caused by some mistakes of judges. And the staff is responsible. Also, the application of the narrations of Bab al-Tal, and the sanctity of Muslim property, implies the civil liability of the government for the damages resulting from the exercise of sovereignty. Also, the emphasis and effort of the Holy Prophet (PBUH) on compensating the victims in the case of Khalid ibn Walid and the tribe of Bani Jazima and the Method of Amir al-Mo'menin (AS) in paying such damages, which we will discuss in detail in this article, is another confirmation that indicates a long history. The civil liability of the government is in Islamic law.
Accordingly, the distinction between the exercise of sovereignty and the exercise of tenure is not legally based on reality and is not commensurate with the reality of administrative action; Because all government actions - unlike those of private individuals - are aimed at providing public services. In addition, the government's discretion in compensating for damages resulting from the exercise of sovereignty can be a source of discretion for the government and government officials to act, which is itself a corruption and another shortcoming in Article 11 of the Civil Liability Law. From the jurisprudential point of view, according to various narrations, the immunity of the government from the damages caused by the exercise of sovereignty is not defensible, but the narrations specify the responsibility of the government. Of course, in some cases, due to Mohsen or other justifiable reasons, the government may be exempted from paying damages, which in these cases does not contradict the previous statement (principle of government responsibility), although here, too, the problem remains that when the government acts In these cases, it is in the public interest, why should one person suffer all the damages! Justice and fairness require all members of society - as well as the beneficiaries of this action - to share in the losses caused by it and the damages to be compensated through the treasury that belongs to all; Because the principle is the equality of citizens against public duties. It is therefore proposed that the above article be amended, and that the government, without discrimination, like other natural and legal persons, be held liable for damages resulting from all its actions, including tenure and sovereignty, and that the damages resulting from such acts be compensated from the treasury.
