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Discretionary Power of Public Administration

Its Scope and Control

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Edited By Leszek Leszczyński and Adam Szot

The book analyzes various aspects and examples of public administration discretionary power within the processes of law application. It presents a variety of factors that may affect the range of discretion as well as the influence on public administration’s reasoning. The authors evaluate the complexity of forms and procedures for control of decision latitude that is exercised by the public administration and the society.

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Procedural discretion in public administration (Barbara Adamiak)

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Barbara Adamiak

(Professor, Wroclaw University, Poland; The Supreme Administrative Court of Poland Judge)

Procedural discretion in public administration

Abstract: The article describes the procedural aspects of discretionary powers of public administration in the process of issuing an individual legal decision. The basis for this research is the Polish legal order, in particular, the applicable procedural provisions and the practice of their application by the administrative courts.

Keywords: administrative procedure, procedural discretion, facts of the case, judicial review of public administration

1.  The position of public administration’s procedural discretion in the fulfilment of the constitutional principle of democratic rule of law

Fundamental values derived from the constitutional principle of democratic rule of law include the individual’s right to legal process. The basis for this is found in how a state ruled by law (Rechtstaat) is a state that is based on a system of legal guarantees of the rights of an individual subject to public authority. This system of legal guarantees in the right to legal process relies on subjecting to the regulation of procedural laws the path of procedural activities of a public administrative authority intended to resolve a case with an administrative decision. The question arises whether in a state ruled by law and founded upon subjection of the path of procedural activities to regulation by law there is any room for procedural discretion in public administration? This question is connected with examining...

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