نوع مقاله : نقد رای دیوان عدالت اداری
عنوان مقاله English
نویسنده English
The purpose of this research is to critically analyze the decision No. 140331390002155119 dated 26⁄ 11 ⁄2024 of the General Board of the Administrative Court of Justice regarding the nullity of the Competition Council's approvals regarding the pricing of ancillary services of petrochemical companies.Relying on Article 190, Paragraph 3, and Articles 214, 216, and 339 of the Civil Code, the said decision declared approval No. 382 issued by the Competition Council null and void due to the failure to determine the transaction price at the time of concluding the contract and the fact that it leads to a loss. Consequently, it also declared Resolutions 479 and 621invalid due to their reliance on the aforementioned approval.Relying on jurisprudential, legal and economic foundations, the present article, with an analytical-critical approach, argues that the decision of the Court of Administrative Justice is flawed in a number of ways. First, the Court's interpretation of the concept of "price certainty" is based on a traditional reading that is inconsistent with the realities of contemporary commerce.
In the modern trading system, especially in long-term contracts and monopolistic markets such as the petrochemical industry, determination of the price on a floating basis is an accepted and necessary issue, and commercial custom does not consider it to be a matter that leads to a loss in the transaction.Second, the decision in question ignores the boundary between governmental requirements (Competition Council regulation) and private agreements and extends the rules related to private transactions to governmental actions.This is in conflict with the existential philosophy of regulatory institutions and the principles governing public law. In addition, the aforementioned decision also has significant negative consequences from an economic perspective, since it creates instability in the pricing system and weakens the powers of the Competition Council, leading to increased uncertainty and reduced investment in core industries.Based on the research findings, the decision rendered by the General Board of the Administrative Justice Court is not only inconsistent with the jurisprudential and legal foundations of floating prices and the role of custom in defining the concept of a loss contract (gharar), but also leads to interference between judicial and regulatory jurisdictions and weakens the legal structure of monopolistic markets.Therefore, reviewing the judicial approach to the concept of floating price and redefining the limits of the Court's intervention in regulatory decisions are essential for reforming the country's economic legal system.
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