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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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Intensity of judicial control of discretionary administrative power. Theoretical remarks from a comparative law perspective (Marcin Kamiński)

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Marcin Kamiński

(Associate Professor, Jagiellonian University, Poland)

Intensity of judicial control of discretionary administrative power. Theoretical remarks from a comparative law perspective

Abstract: The issues of scope and boundaries of judicial control of the exercise of administrative discretionary powers are an essential element of the various theoretical conceptions of administrative discretion. This study concerns the levels and the grades of intensity of the judicial verification of legality of the administrative discretion in the light of French, German and UK administrative law. Special attention has been devoted to the problems of formal and substantive limits of the judicial verification of discretionary administrative acts.

Keywords: discretionary administrative powers; judicial control of administrative discretion; formal (external) and material (internal) legality

1.  General conceptual remarks on discretionary administrative power

In a theory of administrative law the concept of discretion in the most general sense is defined as the power to make a decision that cannot be determined to be correct (legal) or incorrect (illegal) in any objective way1. This kind of the public power involves a right of administrative authority to choose between more than one legally possible course or mode of action. It can be argued that there is a room for a reasonable and purposeful choice of administrative action in the sphere of exercising discretion. Therefore the discretionary power implies freedom of choice and the competent authority may decide whether to act or not to...

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