THE CONCEPT AND LEGAL NATURE OF DISCRETIONARY POWERS OF EXECUTIVE BODIES IN THE ADMINISTRATIVE LAW OF UKRAINE

Abstract

The article is devoted to the study of the concept and legal nature of discretionary powers
of executive authorities in the context of the current stage of development of administrative law in
Ukraine, which is characterized by European integration processes and the affirmation of the rule
of law principle. Emphasis is placed on the necessity of rethinking traditional approaches to the
limits of public administration powers, especially in view of the adoption of the Law of Ukraine
"On Administrative Procedure", which for the first time legalized the definition of discretionary
powers at the legislative level. The evolution of doctrinal views on discretion is highlighted: from
complete denial or ignorance of this institute during the Soviet period through the prism of
"socialist legality" to recognizing it as a necessary tool for flexible response to dynamic social
relations in independent Ukraine. The legal nature of discretion is revealed as a specific method
of legal regulation that combines the binding of the body by law with granting it the opportunity
to choose between several legally permissible decision options.
Particular attention is paid to the distinction between discretionary powers and undefined
legal concepts, drawing on the achievements of German administrative legal doctrine, where
discretion relates to the legal consequences of a norm, and evaluative concepts relate to its
hypothesis (factual basis). Based on the analysis of legislation, particularly Article 7 of the Law
of Ukraine "On Administrative Procedure" and provisions of the Code of Administrative Judiciary
of Ukraine, the essential features of discretionary powers are singled out: their derivative nature
from the law, plurality of behavioral options, independence of choice, and teleological orientation
towards achieving a legitimate aim. The issue of discretion limits is considered, which are
classified into normative (defined by the text of the law), teleological (conditioned by the purpose
of the power), and principal (limited by general principles of law, such as reasonableness,
proportionality, and good faith).
An important place in the article is occupied by the issue of judicial control over the
exercise of discretionary powers. It is emphasized that discretion does not mean freedom from
judicial supervision; however, such control has specific limits: the court verifies compliance with
legality and legal principles without interfering in the expediency of the decision and without
substituting the administrative body, which is consistent with the principle of separation of powers.
The criteria for assessing the lawfulness of decisions of subjects of authoritative powers, enshrined
in Art. 2 of the Code of Administrative Judiciary of Ukraine, and their role in preventing
administrative arbitrariness are investigated. It is concluded that the modern model of discretion
in Ukraine is formed under the influence of European standards, striving to ensure a balance
between the efficiency of public administration and the protection of human rights and freedoms,
which is critically important under martial law and the expansion of executive powers.