Сутнiсть адмiнiстративного розсуду в дiяльностi публiчної адмiнiстрацiї

Abstract

The article systematically explores the essence of administrative discretion in the activities of public administration. The key doctrinal approaches regarding the nature of the discretionary powers of public administration are outlined. The author’s approach to understanding the notion of administrative discretion in the activity of public administration is proposed, as well as the key features of it are given. The study attempts to specify the nature of administrative discretion and outline approaches for improving legal regulation of it. The need for further researches in this area in the field of public administration has been substantiated. It is proved that big number of decisions of administrative agencies emerges through the exercise of discretion. The article focuses on the importance of not only reducing the size of administrative discretion, but also ensuring the proper monitoring of the exercise of such powers on the basis of law, justice, and expediency.The discretion of the subject of public administration has the character of a legal fiction, since it is in fact the discretion of the persons who make decisions on behalf and in the exercise of the powers of this authority. In view of this, administrative discretion, as a legal phenomenon, should be regulated at the legislative level. The quality of its regulation depends on the submissiveness of the will of private actors, which is one of the safeguards of law and order.We propose to determine administrative discretion as an objective possibility, supported by actual conditions, and authorized by law, of the authorized person of a public administration body to choose its own reaction from legitimate “alternative” variants of its possible conduct to fulfil the powers granted by law in order to resolve a particular case and to achieve the purpose of providing such a right.The administrative discretion is analytical, intellectually volitional and manifested in the assessment of the actual circumstances of the case, in the definition of the level of own competence, in the interpretation of the rules of law that are applicable in these circumstances, when there is no authentic or other equivalent to it, and in the choice of the most expedient, fair, reasonable, optimal solution - an option of law enforcement (the adoption of an administrative act, the commission of an administrative action or inaction).