ON THE ISSUE OF JUDICIAL CONTROL OVER THE DISCRETION OF THE AUTHORITY

Abstract

Purpose. The purpose of the article is to define the concept of “discretionary powers”, to formulate conclusions on the limits of discretionary powers of government authorities, to analyze the limits of judicial control over discretionary powers, the correlation between court procedural discretion and public administration discretion. Methods. The theoretical and methodological basis of the study are modern general scientific and special legal methods of scientific knowledge. The formal-logical method and the method of analysis and synthesis are used in the study of doctrinal provisions on the concept of “discretionary powers”. The method of comparative legal analysis is used in the study of foreign models of judicial control over the exercise of discretionary powers. Results. The article defines the concept of “discretionary powers”, considers the types of administrative discretion, approaches to the scope of judicial control over the implementation of discretionary powers in different European countries, givthe criteria for effective judicial control over the exercise of discretionary powers. Conclusions. The attribute of effective judicial protection against illegal activity in the exercise of discretionary powers is the issuance of a court decision that makes it impossible to re-apply to the administrative body or re-resolve the same issue. Based on this, it is concluded that in Ukraine it is appropriate to apply the model of full judicial control, and the recognition of the disputed decision as illegal with the obligation to re-adopt the administrative decision is contrary to the rule of law principle, except the situations when: – there was no real consideration of the issue as such (non-compliance with the decision-making procedure, decision-making by an inappropriate subject); – there is an exclusive competence of the relevant body to make a specific decision (assign a rank, military rank, etc.).