Discretionary Administrative Acts in Judicial Practice: Comparative Legal Analysis

О. N. Sherstoboev
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Abstract

When administrative authorities exercise discretion, they have a kind of freedom to choose one decision. Such freedom however has never been complete due to the fact that laws have limited it. Thus, courts are often faced with the problem of assessing the legality of such decisions. The article has presented the criteria for such the assessment. However, this article demonstrates decisions from different countries. Since their judicial reasoning is largely similar, such judgments can be compared with each other. Similar reasoning also allows to formulate the foundation of a “general theory of administrative discretion”. This foundation is the same for many legal systems, but each contains distinctive features of this theory. Among the evaluation criteria, compliance with legal rules, (legality), achievement of governance goals, compliance with procedural requirements, as well as material grounds are highlighted. To evaluate discretionary acts, courts must use legal techniques. Authorities sometimes published “reference solutions” that can serve as guidelines for administrative authorities who are forced to exercise their discretion.
司法实践中的行政裁量行为:比较法律分析
当行政当局行使自由裁量权时,他们有一种选择一项决定的自由。然而,由于法律的限制,这种自由从来都不是完全的。因此,法院经常面临评估此类决定合法性的问题。本文介绍了此类评估的标准。不过,本文展示的是不同国家的判决。由于这些判决的司法推理大致相同,因此可以相互比较。相似的推理还可以为 "行政裁量权的一般理论 "奠定基础。这一基础对许多法律体系都是相同的,但每种体系都包含这一理论的独特之处。在评价标准中,遵守法律规则(合法性)、实现治理目标、遵守程序要求以及实质性理由是重点。为了评估自由裁量行为,法院必须使用法律技术。当局有时会公布 "参考解决方案",作为被迫行使自由裁量权的行政当局的指导方针。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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