concept and examples of Abuse of Administrative Position in the Porcedure of the Court of Administrative Justice

Document Type : Case Study

Authors

• Hadis Kalvandi ¹
• Hamed Nikoonahad ²

¹ M.A. in Public Law, Qom University, Qom,Iran

² Associate Prof., Department of Public and International Law, Faculty of Law, Qom University. Qom.Iran

Abstract

Highlights

English summary:

Abuse of authority and power in public law occurs when the incumbent administrator exercises the powers vested in him with an illegitimate purpose, or in the exercise of his powers takes a revoked and useless act, or in the exercise of powers. Take an extreme and excessive approach. If it is possible to perform the duty in another way, which does not harm Brexit, and the person in charge has deliberately chosen the path that caused the damage Has abused his position. The purpose of administrative actions and decisions is to secure the public interest, any violation of which is called abuse of position; In such a way that the action or decision of the administrative official is correct and within his competence, but from doing so, he pursues a goal that is against the law. Paragraph 30 of Article 8 of the Law on Administrative Violations deals with the abuse of office and position as one of the administrative violations. However, Article 12 of the Law on the Organization and Procedure of the Court of Administrative Justice refers to it as abuse of power. In Iranian administrative law, the two are used in the same sense and are: the use of legal authority by an administrative official without encroachment and departure from the external territory of jurisdiction and violation of the legality of administrative action. The focus of this research has not been comparative discussion, and the purpose of expressing examples of abuse in the Kamenla system is that this system is, in a sense, the origin of the concept of abuse of position and position, and everything stated in our laws is somehow inspired by this system. They have also defined examples of abuse of position and have reasoned and firm practices in this regard.

However, in order to clarify the procedure of the branches of the Court, it is necessary to refer to the opinions of the branches and examine on what basis and criteria the judges issue verdicts. Examining and analyzing the votes of the branches, the examples mentioned in the investigation of abuse cases were identified, as well as how to determine the duties of cases related to abuse of office and the position of judges in issuing judgments based on abuse, which is one of the criteria of supervision in the Court Law. Judicial is mentioned. It was also determined how to determine the task of cases related to abuse of office and the position of judges' approach to sentencing based on abuse, which is mentioned in the Court's law as one of the criteria for judicial oversight. These criteria are extracted from the texts and legal doctrine of the Kamenla system, and some of them and some of them are applicable in the

procedure of the court. The procedure of the Administrative Court of Iran indicates that at present, abuse of authority as one of the aspects of judicial oversight is recognized only in the

text of the law, but in practice, the branches of the Administrative Court of Justice deal with various positions such as disqualification without They are satisfied with the nature of the dispute and referral of the matter to the General Assembly of the Court or referral to the general

courts. In addition, according to some cases of abuse of position and position that have been mentioned in legal texts, such as inappropriate purposes and not paying attention to the relevant factors in the votes, the vote has been explicitly or implicitly. Some consider irrationality as an example of abuse of position and position, because irrationality is considered as deprivation of competence and abuse of authority. Others also consider irrationality as meaning considering the related factors and not paying attention to the related factors. The reason why judges do not directly invoke abuse of office and position may be its nature, because in principle the administrative official commits this act within the framework of the law and his / her discretion

so that there is no apparent damage to the law or even the authority of the administrative official. In leaving the jurisdiction, the administrative authority violates the external borders, but in the abuse of the internal borders, the authority is violated. Therefore, recognizing it is not easy for judges of the Administrative Court of Justice who are little familiar with this criterion and also in some cases are not literate enough to identify the criteria and examples of abuse of position. Of course, being limited to the text of the law and the lack of initiative in the interpretation of the law by judges is also one of the harms of the Court of Administrative Justice in issuing rulings based on position.

Keywords

• Abuse of position
• abuse of authority
• legality
• Court of Administrative Justic
• Ultra Vires

Main Subjects

• Administrative proceedings Law