试论司法机关对自由裁量权的控制问题

Mykola Onishchuk
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摘要

目的。本文的目的是对“自由裁量权”的概念进行界定,对政府机关的自由裁量权的限制作出结论,分析司法控制对自由裁量权的限制,法院程序自由裁量权与公共行政自由裁量权的关系。方法。研究的理论和方法基础是现代科学知识的一般科学方法和特殊法律方法。在对“自由裁量权”概念的理论规定进行研究时,采用了形式逻辑方法和分析综合方法。运用比较法分析的方法,对国外司法控制自由裁量权的模式进行了研究。结果。本文界定了“自由裁量权”的概念,考察了行政自由裁量权的类型,探讨了欧洲不同国家对自由裁量权行使的司法控制范围,给出了对自由裁量权行使进行有效司法控制的标准。结论。在行使自由裁量权时,防止非法活动的有效司法保护的属性是法院判决的发布,使其不可能再次适用于行政机构或重新解决同一问题。在此基础上,得出结论认为,在乌克兰适用完全司法控制模式是适当的,承认有争议的决定是非法的,并有义务重新通过行政决定是违反法治原则的,但以下情况除外:-没有真正审议该问题(不符合决策程序,由不适当的主体作出决策);-相关机构有专门的权限来做出具体的决定(分配军衔,军衔等)。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
ON THE ISSUE OF JUDICIAL CONTROL OVER THE DISCRETION OF THE AUTHORITY
Purpose. The purpose of the article is to define the concept of “discretionary powers”, to formulate conclusions on the limits of discretionary powers of government authorities, to analyze the limits of judicial control over discretionary powers, the correlation between court procedural discretion and public administration discretion. Methods. The theoretical and methodological basis of the study are modern general scientific and special legal methods of scientific knowledge. The formal-logical method and the method of analysis and synthesis are used in the study of doctrinal provisions on the concept of “discretionary powers”. The method of comparative legal analysis is used in the study of foreign models of judicial control over the exercise of discretionary powers. Results. The article defines the concept of “discretionary powers”, considers the types of administrative discretion, approaches to the scope of judicial control over the implementation of discretionary powers in different European countries, givthe criteria for effective judicial control over the exercise of discretionary powers. Conclusions. The attribute of effective judicial protection against illegal activity in the exercise of discretionary powers is the issuance of a court decision that makes it impossible to re-apply to the administrative body or re-resolve the same issue. Based on this, it is concluded that in Ukraine it is appropriate to apply the model of full judicial control, and the recognition of the disputed decision as illegal with the obligation to re-adopt the administrative decision is contrary to the rule of law principle, except the situations when: – there was no real consideration of the issue as such (non-compliance with the decision-making procedure, decision-making by an inappropriate subject); – there is an exclusive competence of the relevant body to make a specific decision (assign a rank, military rank, etc.).
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