Document Type : Original Article
Highlights
Administrative procedures are the rules and requirements governing the decision-making process of administrative authorities. These procedures express the actions that the administration should follow to make its decisions. Depending on the type of administrative action ( administrative act, rule, administrative contract) the procedures for making the decision are also different. Administrative procedures are important in order to clarify the processes of making decisions and help the efficiency of the administration and proper and fair treatment of citizens in the administration.
The need to regulate administrative decision-making has been affected by judicial proceedings. Based on this, it is said that due to the serious and deep effects of some decisions of administrative institutions on the lives of people, administrative officials, like judges, are required to follow a set of principles and rules, and their decisions must be made within the framework of certain rules; As a result, regulations regarding issuing administrative activities have been approved in many legal systems in the form of specific acts. Establishing certainty and stability to protect citizens and the efficiency of the administration was one of the reasons for codifying these rules and approving the administrative procedure acts. The main goals of regulating the decision-making process of the administration, protecting the rights and interests of individuals in front of the administration, guaranteeing the public interest through the transparency of decision-making and accountability of the administration, providing the possibility of better control of the administration's actions and creating conditions for financial investment and Economic development.
Administrative procedures acts usually include information about how to start an administrative action, definition of an administrative action, parties to an administrative action, rules governing the resolution of jurisdictional disputes, accepted documents in the decision-making process, principles governing the discretionary powers of the administrative authority, the hearing of the beneficiary, the possibility It is an objection to the administrative decision and methods of objection and suspension of the administrative action. One of the criteria of judicial review on the actions of administrative bodies is non-compliance with the requirements stipulated in these acts.
The evolution of administrative procedures has taken place in three stages. The first stage began at the beginning of the 19th century. At this stage, the procedural requirements for taking administrative acts of the executive bodies and resolving administrative disputes were expanded. The first generation procedures are the methods of making administrative acts based on the "judicial" model and hierarchical manner. In the second stage, in the 1950s and 1960s, in some countries, administrative procedures were used to regulate the rule-making and regulations of the administration. The second generation trying to establish rules that government officials can take appropriate decisions and take appropriate actions in different circumstances according to these rules. The administrative regulations are related to rule-making (delegated law or executive regulations) which have been approved by departments in a hierarchical manner as part of a centralized regulatory and supervisory process from top to bottom. Therefore, this model for rule-making is not based on cooperation between administrative bodies and parties; In the third stage, which began in the last two decades of the 20th century and continues to this day, there have been changes in administrative practices in line with global governance and cooperation between the public and private sectors. The third generation is based on participation and includes procedures that follow public policies using flexibility, informality, public involvement and new forms of accountability, transparency and mutual relations. The purpose of these procedures is mainly not control; Rather, it is the guidance of public and private actors. Based on new governance methods, the third generation seeks to create more effective forms of participation, coordination of different levels of government, decentralization and more flexibility.
In the article, the administrative procedures acts of two countries, Germany and United States of America, were examined as two important examples in terms of historical background and procedural requirements in the areas of administrative acts and regulations. The comparison of these two acts shows that the country's codes based on two different foundations of public legitimacy and protection of individual rights have created differences. In the field of rule making in America, public participation is mandatory; However, in Germany, there is no such requirement in general, but according to the new requirements, in some regulations, consultation with stakeholders is included. Regarding the method of making administrative act, there are similarities between the two systems in the formal way, and both use processes similar to court hearings. In both countries, the informal method is the main method of making case decisions. In the German law, the details of this method are specified; But it has been neglected in the American Administrative procedures act; Of course, other acts may stipulate requirements in this regard. German and American laws have a similar approach regarding the effect of procedural errors. Non-observance of these requirements does not always invalidate the administrative action, and according to the effect or lack of effect of the mistake on the final result, they provide the possibility of amending the contested decision.
