Document Type : Original Article
Highlights
In Iran's legal system, the actions of the government are divided into two parts: governance and tenure, and each of these two categories of actions has specific rules, especially regarding the responsibility of the government. This type of separation is adopted from the criticism of the "debtor state" theory in French civil law. The aforementioned separation was made due to the departure of many government actions from the jurisdiction of administrative courts in the 19th century. However, it did not take long before the French Court of Dispute Resolution rejected this distinction by the famous Blanco decision. In the case leading to the verdict, a little girl named Agnes Blanco was injured by the state-owned tobacco transport company, and her guardian sued the government in the public court, demanding compensation for the damage caused to the child under her guardianship. With the administration protesting the general court's lack of jurisdiction, the matter was sent to the French Court of Conflict Resolution for conflict resolution. In its decision, the court ruled that the responsibility of the government and its employees is not covered by the civil law and has special rules. The court further stated that due to the needs of public service and the necessity of creating a compromise between the government and private individuals, henceforth, the competent authority in dealing with these types of claims is the administrative authority. In this way, the French Court of Conflict Resolution, in this decision, announced the standard of "public services" as the rule of government. After that, exceptions were introduced to this theory so that, as a result, the actions of the government are organized in a way that the rights of individuals are also respected. At the same time, the separation between government actions into two types of tenure and sovereign actions is still valid in Iran's legal system, and this issue has been emphasized in the laws that were approved before and after the revolution. Although Article 8 of the Civil Service Management Law considers the acts of government to be acts that provide public interest, the problem is that the concept of public interest is not a definite and complete concept and cannot be a suitable rule for separating the actions of the government from each other. Separation of government actions into governance and management, not only sometimes cannot support the rights of citizens, but may even be against the rights and freedoms of citizens. The permeation of this separation in our legal system has achieved something according to which, in some cases, the government sees itself in a guise outside of public service; In this way, people do not have the right to complain about these actions and the government does not accept responsibility for some actions. By accepting the criterion of "public services", several things that do not exist now will be realized: firstly, by means of the principles of public service, it becomes easy to distinguish different types of actions, secondly, the government cannot rely on the sovereignty of some actions. Refuse to accept responsibility. On the other hand, although the recognition of an act as an example of public service is in the hands of the judge, it is bound to have the principles of public service. Therefore, even if the judge violates these principles, it is possible to prove it and to object to it, has a reliable argument. However, it can be considered that this new standard takes a step in the direction that makes administrative law a supporter of the people and citizens, instead of being a shield for the governments. It is not unlikely that this trend is caused by the expansion of human rights concepts in the field of administrative law, and even by looking at the Constitution of the Islamic Republic of Iran, it can be clearly seen that this criterion is more in line with the goals of the constitution. In this regard, we can pay attention to the provisions of the third, twelfth, as well as the twenty-ninth and thirtieth principles of the Constitution. It is hoped that the legislator will pay attention to this matter and by replacing the standard of public services instead of separating the practices into governance and tenure, take a serious step in the direction of realizing the goals and objectives of the basic legislator and, of course, making rights popular.
