Административное и судебное усмотрение в российской науке: проблемы соотношения

Abstract

The article compares the views of Russian scholars on the problem of correlation between administrative and judicial discretion. The authors describe academic approaches to such issues as the scope of discretionary powers belonging to the executive and judicial authorities, types (spheres) of legal activity, within which administrative and judicial discretion, as well as administrative and judicial arbitrariness are implemented. Based on the positions of Russian researchers the authors offer their own vision of the concept of "scope of discretion" - in narrow and broad sense. In the narrow sense, this concept refers to the limits of discretion (boundaries of discretion), and in the broad sense - to the totality of discretionary powers exercised by the subjects of discretion. Thus, in a narrow sense, the term 'discretionary powers' covers qualitative (vertical) parameters of discretion, and in a broad sense, quantitative (horizontal) parameters. Further it is shown that in domestic legal science there are two approaches to the scope of discretionary powers belonging to administrative and judicial authorities. The first approach is that the discretion of executive power bodies has a smaller volume in comparison to that of judicial power bodies. The second is that the discretion of the executive is greater than that of the judiciary. It is argued that a comparison between the scope of discretion vested in the executive and the judiciary based solely on a narrow interpretation of the concept will necessarily pose a problem for the conceptual and categorical apparatus. If a broad interpretation is used, it becomes clear that in qualitative terms judicial discretion is many times greater than administrative discretion and in quantitative terms it is radically inferior. The authors then ask the question: within what types (spheres) of legal activity are administrative and judicial discretion exercised? There are several main answers to this question in Russian legal science. Some researchers believe that administrative and judicial discretion are implemented solely as a law enforcement activity; others believe that administrative discretion is a law enforcement activity, and judicial discretion can be both a law enforcement and law making activity; others believe that judicial discretion, as opposed to administrative discretion, is implemented solely in the process of law enforcement. The authors of this article show that the answer to the question of legal discretion is determined by the problem of the scope of discretion. If we argue that administrative and judicial discretion are equally exercised in law enforcement and/or law-making activities, this means that their scope (in qualitative terms) is identical. Meanwhile, as discussed above, the court should always have greater discretionary "powers" than the administration. Any concept that violates this inequality is therefore wrong. As for the other positions, they may or may not be accurate, but they are not wrong. Then the authors turn to the phenomena of administrative and judicial arbitrariness, reasoning that arbitrariness is to be understood as the act of a person vested with state power, either beyond his discretion or beyond the scope of the legal activity in which that discretion is used. In conclusion the authors emphasise that contemporary domestic studies devoted to comparative legal aspects of such categories as administrative and judicial discretion have certain shortcomings which prevent a full scientific understanding of these categories. The authors declare no conflicts of interests.