IX Международная студенческая научная конференция Студенческий научный форум - 2017

In the Russian law system the judicial review of public administrative actions and decisions determined the observance of the administrative procedure of the adduction non-normative act. Judicial discretion in an analogous condition can exist if the legislator has applied ratable for regulation of the administrative process.

In Russia, as a rule, each of administrative discretion and judicial discretion is limited to choice alternatives, determinately in the legal norms. AdmPC saved the general trend for all branches of the procedural law, which turned on improvement in quality and extension of juridical discretion. According to Article 9 of the AdmPC, the judge must hold to the security legitimacy fairness. However, we can presume that the definition of fairness as a legal category and how legislature correlates to fairness in enforcement are absent in the AdmPC.

Moreover, the new decision of the Russian Federation Supreme Court dated 09/27/2016 #36 saved the significant applicable practice to inadmissibility inspection decision of the executive department of government for expediency. However, the features of this category of cases involve an assessment of motivation of decisions. Therefore, as indicated in the above resolution, the use of authority or contrary to the legitimate aim and the rights and legal interests of citizens, organizations, government and society is the basis for recognition of the contested decisions, actions (inactions) of the unlawful (in virtue of 226 Articles of the AdmPC).

As the result, minimization of administrative discretion leads to deficiency of «hard cases, requiring applied judicial discretion». A similar situation was observed in the state of Romano-Germanic legal family and fundamentally these legal family traditions because of the conception theory of separation of powers is based on the autonomy of every branch of government. Correspondingly, in rare events, when adjudication of a case involves administration of the causal law, the judge goes outside the bounds of the «clean judicial control».

It will be observed that in states of common law judicial control advisability of administrative acts is comprehended; therefore the problem of «clean judicial control» does not arise in conditions of these legal systems. For example, the US Supreme Court in the case United States v. Darusmont considered relevant US Constitution Congress decision on the taxation of the minimum alternative income tax revenue from the sale of shares, which was formed by the taxpayers a few months before the adoption of law that deteriorate the statute of the taxpayer. The Court proceeded that extension ex post facto clause for the new tax act while worsening the position of taxpayers, but it was not so harsh, rigid and oppressive so that to recognize this fact contradicting the US Constitution.

Evolution of social relations suggests that exception of some areas of law-enforcement activity out of the judicial control leads to adverse effects for private actors, where anent doctrine «clean judicial control» receded into the past. But how can the court help a citizen in the context of the continental law if their rights are violated by the discretion of the authority, which is enshrined in the law?

In Germany for concerns of discretionary decision fairness, the legislator developed quality evaluation criteria of administrative discretions application. Thereby the circumstance error of truthfulness becomes the error of law. Also German procedural law allows to apply the way of restoration of the violated right, which is not enshrined in law, for example, this methods was used in decisions of the Federal Administrative Court of Germany on 10 November 1988 in the case of a license for the manufacture and sale of pesticides, and in decisions of the Federal Constitutional Court in 1990 on charges of checking the novel "Josephine Mutzenbacher".

Russian legal practice faces similar discretions too. While satisfying requirements of challenging the administration decision, the court may determine their own the way for restoration of the citizen's rights violated. In Russian law enforcement, in the event of the ad judicature administrative decision being unlawful, the court obliges the immigration agency to issue a residence permit, if the materials of the case are clearly supported by this reason.

Reducing the role of the Court to the ‘mechanical’ usage of laws leads to the emasculation of the social justice values. In this connection, full administrative proceedings involve the power of the court on its own vision of constitutional values, not only through the prism of the rules approved by the legislative and executive branches. At this basic level, a judge ceases to be a formalist, and begins to focus on the constitutional values, using his experience, sense of justice and a sense of proportion.

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