Public Law Studies Quarterly

The Status of Unlawful Administrative Decisions

Document Type : Article

Authors

Alimohammad Fallahzadeh 1
Mohsen Ahangar Samakosh 2

1 Assistant Prof. Department of Public Law, Faculty of Law and Political Science, Allameh Tabataba’i University,Tehran, Iran

2 Ph.D. Student in Public Law, Faculty of Law and Political Science, Allame Tabataba'i University , Tehran, Iran

https://doi.org/10.22059/jplsq.2021.299380.2378
Abstract
Despite the principle of the rule of law, sometimes administrative agencies, in exercising their authority, make decisions that are contrary to the law although such decisions take a legal form like other lawful administrative decisions. This paper seeks to answer the question whether such decisions are invalid and ab initio void, or they are valid and merely voidable. Among the various theories presented, the principles of the rule of law and ultra vires support the theory of nullity of illegal administrative decisions at the time of their adoption. On the other hand, the principles of acquired rights and legal certainty support the theory that such decisions are valid but voidable. Nonetheless, although the principle of the rule of law is in conflict with fairness to individuals, maintaining order and the rule of law requires that an illegal administrative decision be considered invalid ab initio, and in order to protect the rights of individuals, the prescription of action for judicial review of such decisions, as well as reparability and a compensation system should be provided. The case law of the [Iranian] Court of Administrative Justice seems to advance both theories. The Court’s chambers, however, tend to favor the invalidity theory while its general council prefers the voidablility theory.

Keywords

administrative decisions
void
voidable
the principle of the rule of law

  1. English

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Public Law Studies Quarterly
Volume 52, Issue 3
Autumn 2022
Autumn 2022
Pages 1253-1271

  • Receive Date 14 April 2020
  • Revise Date 28 June 2020
  • Accept Date 24 May 2021

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