Том 22, № 4 (2025)

The article examines discretion as both a managerial and procedural principle that constitutes one of the key elements of the system of legal relations inherent in a state governed by the rule of law. Discretion is not limited, as is often assumed, to a mental operation performed by a public administrator or lawenforcement
official when choosing one of the options permitted by legal norms. Rather, it is a fundamental principle that permeates the entire system of public administration and law enforcement in a rule-of-law state and forms an indispensable component of professional administrative, administrative-jurisdictional,
and judicial activity. In conditions of regulatory incompleteness and heightened dynamism—particularly evident in extraordinary situations (pandemics, wildfire hazards threatening entire regions, large-scale terrorist
acts, responses to military threats, climate-related disasters, etc.)—governance through absolutely precise normative prescriptions becomes impossible. Under such circumstances, discretion is an essential part of the mechanism that ensures flexibility and effectiveness of public administration. Various forms of
this principle may be identified: from the use of discretionary powers when choosing between equivalent alternatives to the duty to give reasons for judicial and administrative decisions and to interpret norms containing evaluative concepts. The role of discretion is particularly significant in imposing administrative
penalties and disciplinary sanctions and in emergency rule-making. It is important to recognize that discretion is not equivalent to arbitrariness; it is based on the duty of officials to adopt well-reasoned, rational, and fair decisions strictly within the framework of the law and constitutional principles. The Authors
advocate recognising discretion as both an administrative-procedural and inter-branch principle, which may contribute to further systematisation of law-enforcement practice and to strengthening guarantees for the protection of citizens’ rights against abuses of power.

The article is devoted to the current and highly controversial issues of the actions of executive authorities at their discretion and judicial control over administrative discretion. The idea of the work: This article examines the features of discretion in the field of taxes and fees. The idea is brought to the fore that some theorists do not associate (deny) the presence of administrative discretion in financial relations. Legislation on taxes and fees began to actively develop only after perestroika, and was initially conflictual due to the law, which enshrines the existence of power relations and asserts the right to seize part of a person's property. Modern IT and Internet technologies not only provide taxpayers with ample opportunities and conditions for making a profit, but also create conditions under which the taxpayer does not have to pay taxes, and in some cases can count on a refund of the tax amount from the budget. The legislator does not have time to respond to innovations in technical progress. Tax authorities, daily faced with various financial schemes, often make decisions in the order of discretion. Objective: to convey the idea that the activity
of tax authorities is legal, it is based on the rules of law and is aimed at protecting the interests of the state (economic, social, etc.). Judicial control is recognized to ensure compliance with the law in the field of taxes and fees. Result: The article provides individual examples. The main part of the work develops the issue of judicial control over the administrative discretion of tax authorities. The corresponding conclusions
are made. In conclusion, it is concluded that discretion in tax legal relations, including in conflicts over tax disputes, must understood as a legal relationship.

The legitimation of administrative discretion is closely linked to empowering courts to review discretionary administrative acts. At the same time, a system of criteria designed to enable such review emerged. This article examines the key and several supplementary criteria used by courts to assess administrative discretion, demonstrates methods of their legal formalisation, and draws conclusions regarding the most appropriate and effective methods. The primary methodology employed is comparative legal analysis. This approach makes it possible to examine the models for legal formalisation of these criteria in Austria, Germany, France, and several Central Asian countries, and to compare them with Russian judicial practice and legislation. The Author concludes that administrative discretion should not be institutionalised as a separate institution of administrative law, as doing so risks eroding its essential characteristics and diminishing the effectiveness of public administration. In all countries studied, discretion enters administrative law through criteria that limit it and thereby enable courts to review the legality of discretionary administrative acts. The main criteria are the lawful purpose and scope of powers of administrative bodies, while additional criteria consist of general principles of administrative law (administrative procedure). These principles have been developed by courts and scholarly schools and are closely tied to constitutional provisions. Therefore, there is
no need for their codification; statutory definitions would merely restate well-known principles and would not add anything substantively new. Codification is justified only when a principle is absent from the legal system and the legislator is introducing it for the first time. Importantly, even once a principle has been codified, it will still require judicial interpretation; courts will continue to refine its meaning and methods of application. In Russia, the main principles, including proportionality and the protection of legitimate expectations, have long been recognised by courts and doctrine. They are affirmed in the decisions of the Constitutional Court, which the Supreme Court follows. Nonetheless, the Russian legislator continues to codify them in various statutes, including legislation on state control. The Author concludes that the Supreme Court should apply these principles more actively when reviewing administrative discretion. In particular, the protection of legitimate expectations requires greater attention from the Plenum of the Supreme Court.

Judicial administrative law is presently taking shape in the Russian Federation under the influence of constitutional norms. Its primary task is the adjudication of administrative cases by courts of general jurisdiction within the framework of the Code of Administrative Procedure of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, as well as by arbitrazh courts under the Arbitration
Procedure Code. When adjudicating administrative cases, courts almost invariably face the issue of evaluating the administrative discretion exercised by public administration bodies. For many years, scholars of administrative law and procedure have called for a closer linkage between administrative discretion and judicial review, or even for the subordination of administrative discretion to judicial jurisdiction. The vast majority of judicial administrative cases originate from extra-judicial administrative relations, meaning they have a pronounced substantive-law character. Consistency and coherence in resolving administrative cases are based on the administrative-procedural principles applied by courts and public-administration bodies. Universal administrative-procedural principles apply to both stages of the process (extra-judicial and judicial), ensuring continuity between them. Based on these principles, courts develop additional specialised principles for both judicial and extra-judicial administrative procedure, including principles for determining the limits of administrative discretion. A scholarly assessment of the theory of administrative discretion, current legislation, and judicial practice makes it possible to propose criteria for determining the limits of administrative discretion in the adjudication of cases. Based on an examination of modern Russian case law, the article considers administrative-procedural principles as legal guarantees of the lawfulness of discretionary administrative acts. It identifies principles particularly suitable for judicial review of administrative discretion, including fairness, the protection of trust (legitimate expectations), proportionality, and reasonableness.
The article concludes that the application of administrative-procedural principles can not only restrict administrative discretion but also require public-administration bodies to provide predictable and reasonable legal regulation and avoid formalistic approaches when resolving administrative cases.

The article analyses the German model of judicial review of administrative discretion exercised by public authorities. The purpose of the study is to identify the normative and institutional features that ensure the model’s functioning within a rule-of-law framework and under the imperative of protecting fundamental rights. The methodological basis includes comparative-legal, systemic, and functional approaches, together with an examination of doctrinal scholarship and the case law of the Federal Administrative Court and the Federal Constitutional Court of Germany. The analysis focuses on key components of German administrative law: the principle of proportionality, the concept of “bound discretion,” and the doctrine of “reducing discretion to zero.” These categories illustrate how German law achieves a balance between legality, administrative efficiency, and the protection of subjective rights. The study demonstrates that the German model is characterised by a high degree of
normative regulation, a well-developed system of administrative procedures, and institutional stability in judicial practice. Judicial review of discretionary powers is limited to examining their legality and does not extend to matters of administrative expediency. Nevertheless, the jurisprudence of higher administrative courts plays an active role in shaping standards for permissible state intervention, giving judicial review a function of institutional correction of executive authority. Special attention
is devoted to comparing the German and French models, revealing conceptual differences in the role of the judiciary and the permissible scope of administrative discretion. Whereas the French system places greater emphasis on expediency review, the German model prioritizes legality and procedural guarantees. The conclusions highlight the value of the German experience for the Russian legal system.
The absence of a codified law on administrative procedures in Russia makes it necessary to adopt certain elements of the German model, particularly the formalization of discretion-limiting criteria and the institutional strengthening of judicial review. The practical importance of the study lies in the potential applicability of German solutions to improve Russian administrative-procedural law and enhance legal protection of individuals

The article evaluates the principal doctrinal approaches to administrative discretion developed during the Soviet and post-Soviet periods of the Russian state. A comprehensive analysis of the Constitution of the Russian Federation, current administrative legislation, and administrative-procedural legislation substantiates the concept of administrative discretion exercised by the public administration.
Such discretion demonstrates itself within the framework of administrative-public functions performed by competent executive authorities, local self-government bodies, organisations endowed with publicauthority status, and their authorised officials. Using this approach, the Author examines the structure of modern administrative discretion in the Russian public administration by comparing it with systematised administrative-public functions, identifying, inter alia, distinct types of discretion exercised in administrative management and in administrative-legal protection. The article further establishes the connection between administrative discretion of the public administration and administrative justice exercised by the Supreme Court of the Russian Federation, courts of general jurisdiction, and arbitrazh courts. A comprehensive analysis of the Code of Administrative Procedure, the Arbitration Procedure Code, and the Code of Administrative Offenses demonstrates that administrative discretion—as an object of administrative justice—manifests itself in three forms: (1) administrative-protective justice, (2) administrative-enforcement justice, and (3) administrative-sanctioning justice. The integrated approach proposed in the article may be used to identify and concretize provisions of administrative and
administrative-procedural legislation that confer excessive administrative discretion on executive authorities, local self-government bodies, and organisations with public-authority status—discretion that may lead to inconsistent judicial decisions in administrative cases and undermine the uniformity of administrative justice.