Methods of protection and discretionary powers in administrative jurisdiction: problems of law enforcement

Abstract

The article is devoted to the problems of the court’s discretionary powers in selected defenses that do not inform the law and are more effective. The article analyzes the peculiarities of the court going beyond the legal requirements and choosing other methods of protection than those requested by the requester. The purpose of the article is to explain the content and inter- judicial discretion in the context of the principle of the rule of law when deciding on the court’s choice of other ways of protecting rights and interests that are not legally binding and that are more effective.
 The article draws attention to the fact that the actual issue of judicial practice remains the problem of choosing methods of protection other than those requested by the person whose right has been violated. At the same time, it should be noted that the CAS of Ukraine and other legislation do not establish such limits. It is noted that when going beyond the limits of claims and choosing other methods of protection, the court must comply with the principles and international standards of judicial proceedings, the requirements of material and procedural law, the specifics of a specific case, put forward claims and their justification, administrative-legal status and powers of response, position the plaintiff , moral norms and other factors. At the same time, the administrative court must be guided by the principle of the rule of law, proceed from the goals and objectives of administrative proceedings, use judicial practice, reflect the analogy of the law or the analogy of the law. To conclude that the methods of protection of the subjective rights and interests of individuals in administrative proceedings are differentiated in the material- legal (consolidation in the law) and procedural component (judicial discretion). At the same time, applying judicial discretion and making discretionary decisions of the judge, guided by the rule of law, his reasoned choice between alternative types of ways to protect the violated subjective right or interest.