Document Type : Original Article

Highlights

Abstract

The nature of an action is important in that its effects and conditions are fully determined. In the acquisition of land, the analysis of the nature find special feature in terms of the existence of two individuals, public law and private law. One is in charge of public interest and the other is in charge of personal interest, and the conflict between these two interests may require different analyzes. In this article, the nature of this act and the role of the principles of public law and private law in the Iran and Britain precedent were examined by an analytical-comparative method. Such an analysis is divided into two parts because an agreement may be made on compensation beyond the acquisition; Acquisition with compensation agreement, acquisition without compensation agreement.

In English law, the principles governing the actions of public officials are explained under the rules of private law, because from the point of view of the English legal system, public body do not have a distinct position from ordinary people. Thus, unlike countries such as France, the difference between private law and public law is not a key element in the development of administrative law, and in addition, the principles governing public power and private individuals and courts have the same. In the analysis of the nature of the acquisition, the judicial precedent of England used the rules of private law to analyze the nature of acquisition and expressed views such as statuary contract, quasi-contract and the hypothetical of sale. However, not all effects of private contracts were accepted in the case of agreed compensation, including the fact that in the case of a compensation agreement, it did not require compliance with Article 2 of the Property Law Act 1989. And its registration is not necessary, in addition to interfering in the agreement even with the description of the court compensation. The court, on the other hand, analyzes the nature of the agreement and its binding nature using rules such as stopple. In the theory of the hypothetical of sale, the analysis is such that all the rights and interests in the land can be invoked against all persons, such as a contract between private persons, and therefore the acquiring authority has the same rights as the contracting party. In addition, such an analysis has been proposed to explain the amount of compensation for right holders to strike a balance between compensation and taken rights, like a contract of sale.

On the other hand, due to the differences between the two areas of public and private law, others performed the analysis based on the actions of the government in terms of management and sovereignty and the legal actions of the administration, in a way that, government benefits from special sovereignty and authority and order or prohibition issued by his being manifestation of sovereignty. The use of such a method, which has supporters in Iran and has even penetrated the judicial precedent, has led to comments based on administrative unilateral act and administrative contracts. However, there are views in Iranian judicial precedent that result in an analysis of the nature-based on the theories of the hypothetical of sale and the indefinite contract, and even the sale (assuming a compensation agreement) between the acquiring authority and the right holders. The application of the theory of the government act, which has been proposed by the French Council of State and based on the difference between the responsibility of administration in the two acts of government and management, shows the commitment to the separation of public law and private law. But in its critique, it should be noted that in some cases, acquisition does not guarantee the public interest and the access of individuals in society to use it is not the same as exercising sovereignty. The acquiring authority may undertake to meet its needs without affecting the principle of continuing public services. And such actions may be for profit. The existence of situations in which the administration acquires property without the approval of the approved plan and even the declaration of wills, and the acquisition as a material action is merely an indication of the inconsistency of the acquisition analysis with the nature of the administrative unilateral act.

Acquisition analysis according to the administrative contract has the obvious defect that in the administrative contract, the principle of presence of the parties in the contract must be with consent, while in compulsory acquisition, the acquiring authority takes action to acquire the property without the consent of the right holders. Therefore, the imposed and unconventional terms of private law cannot be extended to such an extent as to lead to a mandatory presence in the contract. The effect of such an analysis lies in the right to compensation of right holders. Those who have explained acquisition with the components of public law have considered the right to compensation to be specified by the legislature, and even an agreement on compensation without specifying compensation in law is an agreement without cause and effect. This is while such an analysis contradicts the approach of the Guardian Council of Iran and the rules of jurisprudence. In the procedure of the Court of Administrative Justice, using the concepts of private law, including acquire right to a person, a verdict has been issued for the right to compensation.

The result shows that in analyzing the nature of acquisition and explaining its effects, one should not exaggerate in applying the principles related to the field of public law or private law, because although acquisition of land is derived from the law and in this regard the will of the administration is limited. It has legal authority and the principle of free will does not play a role in it, but its realization causes compensation and the rights of individuals to it. Principles of public law, if it can provide an analysis of the cause of acquisition and the will of the administration, but is ineffective in enjoying the right to compensation and its amount. Therefore, in the analysis, the principles of public law and private law are combined to play a middle ground role in explaining the nature and effects of acquisition.

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