Конституційна модель адміністративного розсуду в Україні: дизайн чи спонтанний порядок

Abstract

Purpose. The purpose of the study is to analyze the constitutional model of administrative discretion in Ukraine through the prism of F.A. Hayek theory about design and spontaneous order. The additional purpose of the study is to propose changes to the model of the administrative discretion in Ukraine. Methods. The qualitative research method was fundamental in the proposed study. The traditional (non-empirical) legal research approach was a major tool in the study model of administrative discretion in Ukraine. Results. The problem of inefficiency of the model of administrative discretion in Ukraine is studied by the author in the article. The provisions of part 2 of Article 19 of the Ukrainian Constitution are criticized. Limitation of administrative discretion of public officials by the law are considered ineffective. The reasons for the ineffectiveness of the model of administrative discretion are the disregard for spontaneity in the process of drafting legislation, according to the author’s assumptions. Thus, the author uses the concept of spontaneous order, which was created by the Austrian economist F.A. Hayek. In accordance with this concept, the disadvantage of the planning system is the inability to predict all situations that may occur in real life. This conclusion can also be applied to the process of creating legislation. Accordingly, the author concludes that the laws cannot provide a perfect code of conduct for public officials. Conclusions. Thus, the author concludes that limiting administrative discretion to the law is not the best solution. The article proposes to restrict administrative discretion not by law, but by legal principles. According to the author, it takes into account the element of spontaneity in public administration. However, the author also emphasizes that the role of judicial review of administrative acts is significantly increasing in such a model.