Discretionary Power Research Articles

From bonds to bounds: The cultural diversity experiences of police officers as custodians of their own social capital

AbstractThis study is an attempt to understand police officers' interactions with cultural diversity within the framework of social capital. Utilizing semi‐structured interviews and thematic analysis within a phenomenological research framework, the findings reveal that being a police officer enhances and limits the trust relation at the same time. Although they are expected to transfer to other cities in certain periods and encounter diverse cultures, thereby enhancing their social capital, as officers' discretionary power diminishes and they increasingly adhere to established regulations, which constrain their flexibility and autonomy in public interactions. This regulatory reliance often results in a withdrawal from discretionary engagements with the social diversity. The data informing these findings originate from Türkiye; however, the conclusions regarding the cultural aspects of police‐citizen interactions, viewed through the lens of social capital, have broader implications that extend beyond national boundaries, which is evaluated in comparison with international studies.

The Discretionary Power of Street‐Level Bureaucrats From the Perspective of Illusio

ABSTRACTInterrogating the tension between care and control in the work of social services staff in Belgian immigration detention centres, this article sheds light on the uses of discretion from the perspective of Bourdieu's concept of illusio. I argue that social services staff's use of discretionary power must be understood at the crossroads of their belief in their professional ethos and the power relations within these centres, which enabled them to frame the element of control as something they had to deal with professionally, rather than something to which they contributed. This sheds light on both the uses of discretion as well as on the articulation of care and control in border humanitarianism.

Artificial Intelligence and Administrative Discretion: Exploring Adaptations and Boundaries

Abstract This paper explores the necessary adaptations to the theory of administrative discretion when using AI systems. Regulatory frameworks in the EU, US, and Spain do not prohibit the application of AI in discretionary decision-making. Particularly, AI systems can be used when discretionary power involves correlations. However, to meet Rule of Law conditions, it is essential to establish adaptations and boundaries in areas such as duty of care, reason-giving, and judicial review. These conditions should focus on the impact of decisions on the affected individuals.

Principles Governing the Exercise of Discretionary Powers by Public Authorities: Systematic Structure and Constitutional-Legal Foundation

This study aims to substantiate the need to establish a modern system of principles for the implementation of the discretionary powers of public authorities as a fundamental element of their operational mechanism. This study provides an overview of the principles of the principles governing the exercise of discretionary powers, as outlined in international and national legal frameworks. Key principles such as the rule of law, legality, reasonable restraint, equality, legal certainty, objectivity, impartiality, and proportionality are identified, and their constitutional and legal interpretations are analyzed. Special attention should be given to the importance of constructing a coherent system of principles for exercising discretionary powers. The following classifications are proposed: 1) Fundamental principles: the rule of law and legality is of paramount importance in shaping the legal institution of discretionary powers; 2) General principles: proper use of discretionary powers, equality before the law, objectivity, impartiality, and reasonable timeframes; 3) Special principles: proportionality and constitutional restraint. In addition, the principle of prudentiality is highlighted as a distinct principle, despite its absence in national legislation, as it is applied in the practices of certain authorities. This study concludes that the formal legal establishment and practical application of the aforementioned principles not only share the nature and outcomes of interaction between public authorities but will also provide robust guarantees for the rights, freedoms, and legitimate interests of individuals and organizations, protecting them from abuse and arbitrariness

New approaches to the implementation of supervisory powers in capital markets and organized commodity markets

The article analyzes new mechanisms and measures of influence on supervisory entities in capital markets and organized commodity markets. A general positive assessment is given to the innovations related to the introduction of more flexible tools for adjusting the state of stock and organized commodity markets, as well as the expansion of the powers of the National Securities and Stock Market Commission (NSSMC), while simultaneously strengthening the legal guarantees of the rights of supervised entities. Attention is paid to changes regarding the inclusion of individuals as subjects of responsibility under this law, clearer delineation of the scope of supervised entities, and significant expansion of the rights of supervised entities by utilizing the best practices of regulating procedural relations between the supervisory body and the supervised entity. The article also explores the deepening regulation of communicative connections between these entities and the procedures for implementing supervisory measures. Attention is given to preventive measures for violations, such as «recommendations by inspectors» and «requests for the adoption of measures.» The article analyzes new forms of implementing supervisory powers and measures of influence on supervised entities, as well as new mechanisms for their implementation that were not previously known in domestic practice. The legal significance of «public warnings» is highlighted, and a legal evaluation of «settlement agreements regarding the consequences of violating sectoral legislation» is provided as an alternative to administrative enforcement measures. According to the authors, concluding such an agreement cannot be considered as a discretionary power of the NSSMC but rather a right of the supervised entity. Conclusions are made regarding the compliance of the introduction of «controlled services» with the IOSCO principle. Taking into account the guarantees of the rights of supervised entities, as stipulated in Article 35 of the Law of Ukraine «On Amendments to the Law of Ukraine ‘On State Regulation of Capital Markets and Organized Commodity Markets’ and Some Other Legislative Acts of Ukraine on Improving State Regulation and Supervision in Capital Markets and Organized Commodity Markets» of February 22, 2024, No. 3585-IX (hereinafter referred to as Law No. 3585-IX). The article defines the functional purpose of legislative restrictions on financial sanctions against supervised entities - legal entities, which, in the authors’ view, aim to prevent their economic destruction and the disruption of economic ties in the respective market. In conclusion, the changes introduced as a result of the adoption of Law No. 3585-IX are expected to positively impact the relationship between the regulator and market participants. The innovations in the practice of legal regulation of relations between the regulator and supervised entities deserve to be extended to other similar areas of state control and supervision.

Delegation of environmental regulation and perceived corruption in South Africa

I study the drivers of a reduction in the discretionary power of environmental inspectors and the impact that such reduction has on firms’ perceptions. I examine the transition from the Air Pollution Protection Act of 1965 to the Air Quality Act of 2005 (AQA), a change from full to partial delegation of regulation in South Africa. By constructing a principal–agent model, I propose a theoretical explanation for why a society would restrict environmental inspectors’ discretionary power. I then use my theoretical model to discuss the air quality regulation transition in South Africa. I suggest that the transition might have occurred because of increases in inspectors’ rent-seeking motivation and capacity of appropriating rents after the end of Apartheid. Using microdata, I run difference-in-differences models in a two-period panel with 191 South African firms to show that the implementation of the AQA decreases affected firms’ perceived corruption, but does not change perceptions on obtaining licences and on the functioning of courts. My work indicates that national governments in developing countries should consider the characteristics of the agents who are implementing regulation, and the system they are embedded in, when designing environmental regulation.

Research on Judicial Application of Custom as Source of Civil Law

Article 10 of the Civil Code stipulates that when resolving civil disputes, if there is no legal provision that can be applied, customs can be used, but only if they are consistent with public order and morality. This provision confirms the legal source status of customs, which is beneficial to completing the legal sources of civil law, maintaining the openness of civil law, and preventing the vacuum of civil rights remedies. It is also beneficial to limiting the discretionary power of judges and upholding judicial justice. When there is no legal reference, customs can also serve as the basis for judging cases. However, there are still problems with the judicial application of customs, such as difficulties for parties to provide evidence, unequal treatment of similar cases, and vague expression of the application of civil customs in judicial documents. Specific measures for improvement can be taken from the perspectives of strengthening the investigation and collection of customs, optimizing the burden of proof for civil customs, and establishing relevant case guidance systems.

Navigating suicidality: swedish social workers’ approaches to identifying and supporting suicidal clients

ABSTRACT This study examines how Swedish social workers across various social work agencies identify and support suicidal clients. Thematic analysis of interviews with seven social workers reveals a reliance on strong client relationships and past experiences with suicidal clients. The social workers consistently assess severity of suicidal intent in clients. Despite variations in roles, social workers generally express comfort in dealing with suicidal clients by using intuition, discretion and professional and organizational logics to support suicidal clients in personalized ways. The exercise of professional discretion and interventions varies based on roles, work conditions, and relationships with suicidal clients. Notably, social workers in addiction recovery outpatient care exhibit a high degree of discretionary power, while youth treatment workers in residential care units prioritize continuity of care, involving psychiatry when needed. Case workers often view psychiatry as responsible for decisions about suicidal clients and routinely refer them to psychiatric care.

Withdrawal of Open Offer: Impact on Merger and Acquisition Transactions in India

Securities and Exchange Board of India (SEBI) and the Supreme Court of India have taken a tough stand to allow for a withdrawal of open offers under the Takeover Code, 2011. Analyzing the regulations, it is clear that withdrawal, which did not exist in the earlier takeover regulations, is now allowed under conditions that render the withdrawal of an open offer impossible to complete. SEBI is vested with wide discretionary power under Regulation 27(1)(d), which reads as “such circumstances” of the Takeover Code, 1997, and so carried forward as Regulation 23(d) in the Takeover Code, 2011. The authors analyze the interpretation of “such circumstances” through the various judgments, highlighting the authorities’ understanding of such withdrawal. The self-placed restriction on such discretionary power is analyzed for its impact on merger and acquisition transactions. The importance of circumstances like market situation, the financial situation of the acquirer, material adverse changes, and nonreceipt of lender approval, whether it deserves a place in the regulation, and if yes, the mechanism to misuse of such provision and the protection of investor becomes the center of the article. The prima facie shift from not allowing withdrawal to debating for more clauses for withdrawal to be allowed, the article provides suggestions as felt necessary.

The politics of beneficiary selection: A case study of Ghana’s Livelihood Empowerment Against Poverty (LEAP) cash transfer programme

In communities of Sub-Saharan Africa, where local elites participate in the selection of households for cash transfers, there is a tendency to deviate from laid down rules for various reasons. Using qualitative data from selected districts where Ghana’s Livelihood Empowerment Against Poverty (LEAP) programme is implemented, this study investigates the reasons why district and community elites deviate from prescribed selection processes of the LEAP programme. Drawing on the concept of competitive clientelism, the findings suggest that elites are deeply guided by political patronage to fulfil one primary goal, protecting their role in office. Such ambition is facilitated by the discretionary power accorded to elites by the local government system and socio-cultural values deeply rooted in Ghanaian society. In conclusion, the study draws out key lessons from the analysis and suggests a design of beneficiary selection frameworks that acknowledges the nature of domestic politics, institutions of power and powerful actors at the subnational level. The article also highlights the implications of the findings for the broad politics of social protection literature.

Пределы усмотрения органов местного самоуправления в случае отмены административного акта в сфере градостроительства

The publication reviews the definition of the limits of discretionary power of local self-government bodies in the field of urban construction in case of autonomous cancellation of administrative act, which was previously issued. It was recognized that in the practice of Constitutional Court of Russian Federation and Supreme Court of Russian Federation in 2022 legal positions were formulated, connected to defining the limits of discretionary power of public administration body in case of cancellation or changes introduced into administrative act autonomously in compliance with the concept of trust protection. Summary of judicial practice materials allowed to set the perception of legal positions, which were formulated by Russian senior courts, courts when assessing the limits of discretionary power in the event of autonomous cancellation by act in the field of urban construction previously issued.

The Montenegrin Olympic Committee: exploring issues in Sports Governance

ABSTRACT The recent doping scandal in Montenegro waterpolo team during the World Aquatics Championships in Qatar this year, yet again opened the debate on a number of sports-related governance issues. The foundation of these challenges lies in the very essence of how the sports ecosystem is structured, organized, and operated. The major outputs of the contemporary studies confirmed that the politicization of relations within the sports ecosystem plays a principal role, in shaping, directing, and utilizing sports for non-sporting objectives. The results indicate that this constellation has been facilitated through the transformation of informal practices into regulatory regimes or bypassing, when needed, existing legislative frameworks in order to contribute to institutional stability. The politicization represents a joint determinant of the closed, vertically structured governing bodies and decision-making system with long-lasting individuals in decision-making positions without any internal or external control in practice. The internal regulations facilitate no restrictions on conflicts of interest, measures aimed to tackle corruption, or to provide a check and balance system between governing bodies. Furthermore, following the public service culture, the Montenegro Olympic Committee maintains its closed and exclusive composition of governing bodies rests on discretionary power and a decision-making approach with a democratic deficit.

К вопросу о судебной неустойке в административном судопроизводстве

The article is devoted to the problem of enforceability of judicial acts on public-law disputes, including those related to the imposition upon an administrative body or an official of the duty to exercise discretionary power. The author refers to the origins of this problem and comes to the conclusion that the measure of compulsion of administrative defendants to execute judicial acts should be indirect. Based on the analysis of available public law mechanisms of indirect coercion to the execution of a judicial act, the author points out that they either cannot be characterised as effective, or are disproportionate to the goal, and proposes a solution to the problem by introducing the mechanism of judicial forfeiture in the Code of Administrative Proceedings. The author notes that initially the legislator did not intend to extend it to cases of non-fulfillment of judicial acts on public law disputes, but the approach developed later in judicial practice, which allows the award of judicial forfeiture on certain public law disputes considered by arbitrazh courts, dictates the need to expand the scope of application of judicial forfeiture to cases of failure to fulfil any judicial decision on disputes arising from public legal relations, since there are no objective differences between them.

The Merchant Guild’s Business Philosophy and Corporate Innovation

The business philosophy of merchant guilds represents a unique business-related culture that developed gradually through long-term commercial practices. This study investigates how distinctive business philosophies of Chinese merchant guilds affect contemporary corporate innovation. Employing a binary classification of adventurous and conservative business philosophies, we find that firms led by chairpersons with an adventurous guild culture are more likely to engage in innovation activities compared with those led by chairpersons with a conservative guild culture. Further analysis reveals that the influence of these business philosophies on corporate innovation is more pronounced for firms operating in regions with lower marketization, in industries facing greater environmental uncertainty, and when the chairpersons possess greater discretionary power. Our channel tests demonstrate that an adventurous business philosophy fosters innovation by enhancing chairpersons’ willingness to take risks. These findings highlight the enduring influence of merchant guild culture and the significant role of chairpersons’ inherited business philosophy in shaping contemporary business practices.

Optimization of Judicial Review System in Non-Prosecution for Corporate Compliance

As the reform of corporate compliance progresses, the system of non-prosecution for corporate compliance grants prosecutors significant discretionary power, making it inevitable for courts to participate in corporate compliance. Issues arising from corporate compliance reform, such as insufficient time for compliance rectification hearings, inadequate third-party supervision, judicial discretion abuse, and lack of unified standards for compliance effectiveness assessment, should be addressed. This can be achieved by establishing unified standards for compliance effectiveness, improving the transparency of public hearings, emphasizing the construction of a diversified institutional framework for multi-party participation in corporate compliance, enhancing coordination and constraints among public security organs, procuratorates, courts, administrative agencies, and third-party organizations, and improving the judicial review of corporate compliance to optimize the judicial scrutiny of the non-prosecution system for corporate compliance.

Transparency of the Swedish Competition Authority

The constitutional principle of access to public records and the administrative principle of parties’ right to access their files create transparency in the Swedish Competition Authority. In many ways Swedish law is built on the same ideas as EU law. However, the Swedish constitution requires more specific provisions on confidentiality in statutes decided by the Parliament. As regards the Swedish Competition Authority, five different sections of the law protect confidentiality, depending on who is to be protected, what activities are concerned, what kind of information is involved and how likely it is that someone will be harmed. These detailed provisions can in principle contribute to predictability, limiting the authorities’ discretional power, but they also constitute a complex patchwork that can be difficult to comprehend. A problematic legal conflict would arise if a document were confidential according to EU law, for example to protect trade secrets, but not confidential according to Swedish law. However, so far, EU law has only been invoked to expand the right to access to documents, especially regarding companies that intend to bring action for competition law damages.

The Foundational Principles upon Which the Centre for Management Excellence in Public Finance Management is Built "A Comparative Study"

The fundamental regulations that govern the administration's effective management and safeguarding of public funds constitute the theoretical underpinnings of the administrative centre of excellence in public funds management. These foundations are linked to the same standards that established the existence of administrative law as a whole and the management of public funds in particular; thus, general philosophical foundations, including public utility theory, public authority theory, and modern theory, emerged. The most meritorious of these theories were the mixed theories whose contents are derived from the theories of public authority and public utility. This is due to the logical norms that this theory establishes regarding the management of public funds for the benefit of the public. Public ownership and discretionary power may be regarded as the pillars of a unique theory that effectively grants the administration control over its funds, as well as the flexibility and space these theories afford the administration to exercise its privileged position in the management of public funds.

Legal nature of the court’s discretionary power in business contract revocation

Legal nature of the court’s discretionary power in business contract revocation

سلطة محكمة الموضوع في تقدير خطأ العامل الجسيم

The subject of the discretionary power of the subject judge regarding the assessment of serious error requires the judge before whom the dispute is brought to examine the reasons relied upon by the employer to make the decision to dismiss the worker and give them the legal qualification that is consistent with the requirements of the Labor Law, which determines the conditions and sets the framework for terminating the employment relationship so that the employer does not abuse his voluntary right, whether by verifying the seriousness of the error committed by the worker, or by assessing the reason and justification for the dismissal. Hence, the question revolves around the criteria for assessing gross error and the authority of the subject judge to assess whether the error is gross or simple, and the scope of the supervisory authority of the Supreme Court regarding assessing the justification for gross error or not? The exercise of discretionary power requires the judge to first verify the existence of the reason for dismissal in itself, then if it is proven to have been achieved by the means stipulated by the law, he tends to exercise judicial oversight over arbitrary dismissal from an objective standpoint, by assessing the seriousness of the error committed by the worker, as a justification and reason on which the employer relied in dismissing the worker.

Multiplier Effect Ekosistem Ekonomi Dam Haji: Urgen dan Esensi Prospektif Policy

The activities related to Dam Haji not only impact the rights of protection for pilgrims in fulfilling the requirements, obligations, and pillars of the pilgrimage. There is a multiplier effect from these activities that occurs annually. This impact is closely related to the reduction of extreme poverty and stunting, and the realization of economic entities in the second and third sectors, directed by policies concerning the Hajj economic ecosystem. To date, there is no definitive rule of law that governs the payment, implementation, and distribution of Dam Haji. Detailed data on these Dam Haji activities are also not available. Meanwhile, support from Hajj stakeholders, Islamic community organizations, and the results of Hajj discussions recommend that the state should ensure the proper management of Dam Haji for social and economic benefits to both countries. This management represents state intervention, specifically through the Ministry of Religious Affairs, which should use its discretionary power as a regulator to issue regulations as the legal basis that must be followed by all stakeholders and the public.