Judicial discretion in administrative jurisdiction: concept and content

Abstract

The article is devoted to the issue of the concept and content of judicial discretion in administrative proceedings. The article examines theoretical approaches to the definition of the concept of judicial discretion, highlights the peculiarities of procedural legislation and judicial practice, which provide for the limits and criteria of judicial discretion. It is concluded that judicial discretion in administrative proceedings allows, despite its ambiguous understanding and interpretation, to single out certain features of this phenomenon. The exercise of discretionary powers by the administrative court determines the formation of judicial practice in the consideration and resolution of certain categories of administrative cases, as a result of which complex and ambiguous public legal disputes are resolved immediately, without waiting for the improvement of legal regulations. The article draws attention to the fact that administrative courts are called upon to resolve public-law disputes, to promote the restoration of violated rights, freedoms and interests in the field of public-law relations, to restore law and order in the public sphere. Therefore, any administrative decision regarding a person made by a subject of authority, regardless of the method of adoption, level and place of the body in the relevant system, legal grounds, motives, method and forms of adoption, is subject to judicial control. Attention is drawn to the fact that exercising judicial discretion, the judge, guided by the principles of the rule of law, can depart from purely normative and legal regulation and decide the case on the basis of the principles of law. It is proposed that judicial discretion should be understood as the authority of the court in choosing decision options, governed by the rules of the Civil Court of Ukraine, guided by the rule of law and the circumstances of the case in order to render a legal and justified decision in the case. At the same time, judicial discretion gives the court the right to choose, while the court must make a decision, which should be based on the principles of administrative justice as much as possible and correspond to the individual features of a specific administrative case. It is justified that further scientific research of judicial discretion will make it possible to improve the state of administrative proceedings, to provide practical recommendations to courts, aimed at improving the latter's exercise of discretionary powers.