نوع مقاله : مقاله پژوهشی
نویسنده
گروه حقوق عمومی، دانشکده حقوق و علوم سیاسی، دانشگاه مازندران، بابلسر، ایران
کلیدواژهها
عنوان مقاله English
نویسنده English
In Iranian law, the attribute of “publicness” is used in several closely related yet distinct senses. It may refer to the institutional status of an entity, the nature of its mission or service, or the “public interest” as a basis for restricting individual rights. The coexistence of these usages, particularly in relation to non-governmental persons and entities entrusted by law with public responsibilities, has complicated the boundary between public and private law. This article examines whether selected legislative and judicial developments have moved beyond a predominantly organizational conception of publicness toward a more functional criterion, and explores the limits of that shift. Using doctrinal and conceptual analysis, the study considers the Constitution, the Civil Service Management Act, the Law on Dissemination and Free Access to Information, the Law on Promoting Administrative Integrity and Combating Corruption, the 2024 Transparency Law concerning the Three Branches of Government, Executive Bodies and Other Institutions, and selected judicial decisions, alongside the relevant public-law literature. The findings do not indicate the complete displacement of the organizational criterion. Legal personality and institutional status remain significant in determining the applicable legal regime. At the same time, legislation in several areas attaches specific public-law obligations to the performance of a “public function” or “public service” and, in some instances, distinguishes between activities of a private entity that are related to its public mission and those that are not. Judicial practice, despite some variation in approach, likewise reflects this distinction between legal personality and function. The article concludes that publicness should be assessed by reference to the legal basis of the public mission, the effects of the decision on rights and shared services, the degree of individual dependence on the relevant decision, and the proportionality between the public function and the requirements of transparency, reason-giving, and access to review.
کلیدواژهها English