نوع مقاله : علمی پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق عمومی، واحد ساری، دانشگاه آزاد اسلامی، ساری، ایران.
2 استادیار گروه حقوق، واحد بابل، دانشگاه آزاد اسلامی، بابل، ایران.
3 دانشیار گروه حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه مازندران، بابلسر، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The foundations of compensation for damages, in terms of the necessity or non-necessity of the existence of fault in the harmful act, are divided into fault-based liability, such as the fault theory, in contrast to liability without fault, which includes theories such as risk creation, guarantee of rights, and the like. Claims for compensation against the government are likewise not exempt from this rule and, as an instance thereof, must be placed within this classification. The question of the present research is this: upon which of the aforementioned theories may the authorities adjudicating claims for compensation against the government, such as the General Court and the Administrative Justice Court, rely in proceeding with adjudication and issuing judgments? There exists the belief that the basis of civil liability in Iranian law, following the enactment of the Civil Code, is solely fault; therefore, the basis of claims for compensation against the government can likewise be nothing other than this. In the present research, through analytical and descriptive examination, it was addressed that not only is the basis of civil liability not confined to fault, but also that the General Court, in adjudicating claims for compensation against the government, may, as the case may require, make use of any of the bases of civil liability. However, because pursuant to Note 1 of Article 10 of the Law on the Organization and Procedure of the Administrative Justice Court enacted in 1402, the Administrative Justice Court possesses jurisdiction to hear claims only where the damage inflicted results from violation in the execution of legal duties or omission thereof (as an instance of fault), and otherwise lacks jurisdiction to hear the matter, it may therefore rely solely upon the fault theory as the basis of governmental liability in compensating damages inflicted upon citizens.
کلیدواژهها [English]
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