Administrative Discretion: Concept, Types and Conditions of Application Eligibility

Authors

  • Roman S. Melnyk

DOI:

https://doi.org/10.52026/2788-5291_2021_64_1_35

Keywords:

administrative law, administrative discretion, indeterminate legal concepts, an administrative agency, administrative justice, an administrative court, rule of law

Abstract

The article is focused on the analysis of administrative discretion institution. The author’s approaches of studying administrative discretion is through the prism of national and foreign theory and practice, seeking to formulate the provisions and conclusions, ready to be applied in the context of Kazakhstan legal reality.

The author formulates the definition of administrative discretion, while focusing attention on the fact that discretion is a power, that is the right-obligation of an administrative agency, when, as a result, it cannot evade from its implementation. It is also important to define the goals of administrative discretion while its understanding, which are highlighted in the article.

The author of the article reveals the issue about normative forms of authorization for applying administrative discretion. The author emphasizes that the answer to the question of whether an administrative agency has the power to apply administrative discretion must be directly sought in the law norm. According to the author, the text of the norm itself often gives the necessary answer (for example, we use such expressions as «may», «has the right» or «must»).

Special attention of the article is paid to allotting the types of administrative discretion, as well as formulating the requirements that are set forth to administrative discretion. The author substantiates the idea that the interpretation and application of indeterminate legal concepts is a separate type of administrative discretion.

The article is concluded by the thesis that current tendencies in the development of law in general and administrative justice institution, in particular, indicate about a significant expansion of judicial control over the rule of law (eligibility) of administrative discretion, which should be taken into account by both judges and representatives of administrative agencies.

Published

19.11.2021

How to Cite

Melnyk Р. С. (2021). Administrative Discretion: Concept, Types and Conditions of Application Eligibility. Scientific and Legal Journal «Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan», 1(64). https://doi.org/10.52026/2788-5291_2021_64_1_35