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Yu.P. Solovey 

Discretionary Nature of Administrative Act as a Circumstance Precluding Judicial Review of its Legality

2019. No. 4. P. 72–99 [issue contents]
The subject of the research in this article is the legislative norms defining the boundariesof judicial review of the legality of the exercise by authorities and officials of the publicadministration of discretionary powers, first of all, clause 3 of part 1 of article 128 of theAdministrative Procedure Code of the Russian Federation (hereinafter referred to as CASRF). According to this provision of the law, the judge refuses to accept an administrativeclaim if “from an administrative claim for challenging a regulatory legal act, an actcontaining explanations of legislation and having normative properties, a decision or action(inaction)” of the public administration does not follow that this act, decision or act(inaction) violates or otherwise affects the rights, freedoms and legitimate interests of theadministrative claimant.” The purpose of the study is to prove that paragraph 3 of part 1of Article 128 of the CAS RF in the interpretation given to it by court practice, contrary tothe position stated by the legislator, does not simply unduly narrow the boundaries of judicialreview of the legality of those administrative acts that are discretionary, but also thepossibility of such verification. Based on dialectical, formal logical, historical, formal legalmethods of cognition, the method of interpretation of law and the results of the analysisof published materials of judicial practice, the Author concludes that paragraph 3 of part 1 of Article 128 of the CAS RF does not comply with the provisions of the Constitution ofthe Russian Federation and the need to exclude it from CAS RF. The proposed legislativemeasure will allow the CAS RF to be brought into line with parts 1 and 2 of Article 46 of theConstitution of the Russian Federation, which do not establish any barriers for the courtto verify the legality of the contested administrative acts. Fears that this step will have theimplication of the judiciary on the independence of the executive branch, as well as anexcessive increase in the judicial burden, seem to be groundless. Depriving the administrativediscretion of Article 128 of the CAS of the Russian Federation on Article 3 of paragraph3 of immunity from judicial control will bring domestic justice closer to Europeanstandards, will help “humanize” the Russian judicial system, strengthen the effectivenessof judicial control over the legality of administrative activities and, consequently, increasepublic confidence in public authorities. authorities and their representatives.
Citation: Solovey Y. (2019) Diskretsionnyy kharakter administrativnogo akta kak obstoyatel'stvo, isklyuchayushchee sudebnuyu proverku ego zakonnosti [Discretionary Nature of Administrative Act as a Circumstance Precluding Judicial Review of its Legality]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 72-99 (in Russian)
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