مطالعه تطبيقي صلاحيت وضع آيين نامه با تاكيد بر نظام هاي حقوقي فرانسه و ايران

Comparative study of the competence of regulation with regard to the French and Iranian legal systems

Manner of composition of Article 138 of Constitution of Republic Islamic of Iran and classic conception of separation of powers has created a presumption among some experts that in Iranian legal system, no one has power to enact regulation but council of ministers or any of them. In this article, with regard to the practical needs of modern function of the Executive Power and new reading of separation of powers in some known countries, it is shown that modern perception of separation of powers does not forbid the power of regulation but only restrict it. In addition, the study of practice of legislator, the Guardian Council, and the Court of Administrative Justice rejects any exclusive perception of legal order of Article 138. This means that substance of that Article indicates an exclusive meaning only at the frame of Executive Power in its limited concept and can not negate competence of regulation from other officials out of Executive Power. Therefore this competence is not general but is limited and is subject to necessity arising from demands about legal competence of authorities mentioned in this essay.