Koncepcje ograniczające swobodę organu w ramach uznania administracyjnego
Concepts which are limiting the freedom of the administrative body within the administrative discretion

Summary/Abstract: In the article are presented concepts which restrict the freedom of the administrative body when is issued a decision based on administrative discretion. These concepts can also create wider opportunities for control of the court in relation to administrative discretion. These legal constructions are: choice directives of the legal consequences and the construction of legality purpose. Choice directives of the legal consequences narrows the possibilities the administrative body to the deciding by pointing to the shape of decision by reference to the factors which administrative body has to taken into account in determining the legal consequences of the facts. They can be either real factors, as well as a reference to the general principles contained in the Code of Administrative Procedure. The doctrine and case law emphasizes that choice directives of the legal consequences are the limits of administrative discretion. This means that the violation of these directives will involve with exceeding the scope of discretion which has administrative body. This will result in a finding by an administrative court the illegality of such a decision. The second construction is the construction of legality purpose. It involves the legality with advisability and is based on the assumption that the action comply with specific legal standards may be inconsistent with the general purpose for which these standards are designed. Then such pointless activity may be considered by the court to be illegal. It is obvious that the competence of administrative courts only include examining the legality, not the advisability of public administration. For this reason, the construction of legality purpose may arouse controversy, as it allows to study the advisability of the activities of public administration by “connection” advisability as part of the legality of these actions. Reducing the essence of administrative discretion is an inevitable process in the rule of law. The definition of administrative discretion has been redefined from "freedom to act within the law", to the only "choice of the legal consequences of the facts."

• Details
• Contents