Review of law sciences


The article describes the concept of discretion as one of the central concepts in the science of administrative law, further a parallel between the discretion existing in the government (so-called discretionary powers) and judicial discretion is drawn. Thus, the administrative body is obliged to apply its discretion in order to give the right of discretion and to comply with the statutory limits of discretion, if it is authorized to act in its own discretion. The proper application of the discretion by the administrative body may be re-examined within the framework of pre-trial appeal by the same administrative body or by a higher administrative body. The administrative body or the superior administrative body may, in particular, also assess the appropriateness of decisions and thus make other decisions, even if there is no doubt as to the validity of the original decision. In particular, in the case of pre-trial appeal, it is assumed that a new, independent assessment of the expediency of the actions of the executive body is carried out. In principle, this does not cause any legal problems with respect to the protection of trust, since the claimant itself, through filing a claim, prevents the entry of an administrative act into force, thereby preventing the consequent more difficult annulment. However, this becomes problematic in the case of the administrative court, since the courts, by virtue of the principle of separation of powers, have the right to check only the legality of the actions of the executive power, and not the expediency of its decisions. In this connection, the administrative court process limits discretion to verifying a discretion error only, rather than verifying whether an administrative act or refusal to publish or not to publish an administrative act is unlawful, whether the statutory limits of discretion or discretion have been violated have not been applied in accordance with the purpose of its provision. And a detailed description of the types of discretion and what there are errors of discretion. In conclusion, there are arguments for the existence of a discretion, since there are doubts about the susceptibility of decisions to corruption at its discretion.


1. Po-nemeski Verwaltungszustellungsgesetz. 2. Po-nemeski "Ermessensreduktion auf Null". 3. DVBl. 1983, 998. 4. Sbornik resheniy Federal'nogo administrativnogo suda (BVerwGE), Tom 65. – S.178. 5. Sbornik resheniy Federal'nogo Konstitusionnogo suda Germanii (BVerfGE), 50, 217, 227. 6. Erichsen/Ehlers, § 11 Rn. 61. 7. Kopp/Ramsauer, VwVfG, § 40 Rn. 88. 8. Sbornik resheniy Federal'nogo administrativnogo suda Germanii (BVerwGE). Tom 82, – S.257; Kopp/Ramsauer, VwVfG, § 40 Rn. 90 m.w.N.