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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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Abuse of Administrative Discretion (Zbigniew Kmieciak / Joanna Wegner-Kowalska)

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Zbigniew Kmieciak

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

Joanna Wegner-Kowalska

(Ph.D., University of Lodz, Poland)

Abuse of Administrative Discretion

Abstract: The article advocates for the clear definition of formal and material boundaries of administrative discretion and clear definition of ongoing relations between them. It also emphasizes the need to develop a methodologically correct catalogue of discretion errors.

Keywords: administrative discretion, abuse of discretion, judicial review

1.  The concept of administrative discretion

The concept of discretionary power of in public administration (administrative discretion) is used in science, legal texts and case law of different legal systems with several meanings. It is determined by tradition, the goals of theoretical discourse, the existing legal regulations and practical findings. The concepts created in different circumstances have been integrated and developed under the EU law. In the above-mentioned legal order, the margin of decision marked with such phrases as “discretion”, “pouvoir d’appréciation”, “pouvoir discrétionnaire” or “der Beurteilungsspielraum”, is usually identified with all margin types of findings, assessments and settlements, not just with the freedom to choose one from several legally authorized options of action.

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