Judicial discretion in the administrative process

Abstract

In the article, based on a systematic analysis of the current national legislation and the provisions of the European Court of Human Rights, judicial discretion in the administrative process is considered. The topicality of the topic is determined by the fact that the study of the nature of law enforcement will allow us to determine the role of discretion in legal activity, mark its place in the arsenal of legal regulation tools, and create conditions for increasing the social significance of law. The methodological basis is a collection of general scientific research methods, such as analysis and synthesis of the obtained results. Special and private scientific methods were also used: logical, systematic, comparative legal, functional, sociological, axiological. The subject is theoretical conceptual developments regarding judicial discretion and its limits. Judicial discretion in the Romano-Germanic legal family under the rule of the doctrine of legal positivism, which is complemented by the natural-law direction, in the operational aspect represents a choice made within the limits of the legal norm. It is noted that law­enforcement discretion is an activity of authorized legal subjects carried out taking into account and within the limits of the law, which provides for the possibility of choosing the optimal decision in a legal case. Limits of discretion are legal frameworks established by legal means that limit the scope of application of law. Based on the legal nature of law­enforcement relations, which have a dual structure, which includes the material-legal content and the procedural-procedural form of the exercise of the judicial discretion when considering a specific case, they are determined by material-legal means, which consist of: orders of the material norm of the law; circumstances of the case; provisions of court practice; principles of law. As for the procedural aspect, the limits of judicial discretion are defined by means of the powers of the court; the content of the demands; procedural terms; subject boundaries. Further research involves determining the impact of information technology on judicial discretion.