Ежегодник публичного права 2017 : Усмотрение и оценочные понятия в публичном праве
The article seeks to depart the traditional interpretation of administrative discretion as choice (freedom of choice) between one of the given options for the law enforcement (individual) act. Administrative discretion is seen as a complex legal phenomenon, used not only in law enforcement, but also in rule-making. Its definition is provided as a certain "reflection" of the initial state of regulated managment relations, an understanding of the current situation (requiring managerial resolution), and consideraton of the current sate of affairs at the time of the decision-making and, furthermore, as the assumptions and anticiation of he impact the decision made on the development of regulations related by the managements act.
The subject of this article - is the research of public interest in Russian civil proceedings. The author compares the private interest and the public interest as well the public, state and society interest in law and draws conclusions about their similarities and differences. The article deals with the specific manifestation of public interest in civil proceeding (abstract and specific) and investigates problems of using this term in the text of the law and practice.
This article aims to identify some factors of legal regulation that put limits on the use of centralized methods in law and, in a broader sense, in social governance, primarily factors that inevitably produce legal indeterminacy and make a law-applying entity act at its discretion.
The article is based on a hypothesis that putting a safety hedge around the deductive model of law application with the unawareness of legal indeterminacy and the need for discretionary action on the part of a law-applying entity results in this subject being ousted from the theory of legal reasoning and legal theory in general, primarily in Russian legal discourse.
This has direct practical effects as it hides the availability for a law-applying entity of more than one option for a decision on a specific case and consequently relieves it of the need to publicly explain the motives for its choice. For this reason, any attempt to sustain the illusion that a specific decision in the application of law is deductible from law will have the opposite effect, namely enlargement of discretionary powers, inconsistent and arbitrary judicial and administrative practices, and a less significant role of social governance mechanisms that are based on general rules.
Consequently, any attempt to give a paramount role to centralized regulatory methods in government will have internal limitations that stem from such intrinsic indeterminacy.
The article also purports to systematize arguments underlying the thesis of inevitable indeterminacy and partial autonomy of a law-applying entity in taking decisions regardless of what a law stipulates.
The article analyzes factors such as the linguistic indeterminacy of stipulation, the deliberate ambiguity of a specific law (e.g. the use of “bendable” rules or legal standards and value judgments), the incompletion or contradictoriness of a law, the discretionary selection of significant facts and discretionary qualifications of specific cases, legal dysfunction, contradiction between the objectives of a law and the results of its application, inevitable exceptions to rules, and indeterminate principles for the interpretation of law and for filling legal gaps.
The reasons for the use of administrative discretion include more extensive state regulation, wider use of redistribution, changes in the nature of tasks to be addressed in public administration and higher standards for their implementation, more sophisticated decision-making technology, the need for law-applying entities to have better knowledge in various specialist fields and a more prominent role of specialists, limited resources, and the incrementalist style of decision-making.
One of the measures implemented as a part of administrative reform in Russia was the introduction of administrative procedures — special rules for providing government services that specify the process, the timing, the sanctions, etc, which can be used by bureaucrats for coordinating their activities, and by their principals (higher ranking bureaucrats and citizens) to control their agents. The main idea behind the administrative procedures was to increase the transparency of bureaucracies that provide government services, to simplify the control over bureaucrats, to prevent corruption, and, consequently, to increase the quality of government services. But after a few years since the introduction of administrative procedures we still face the problem of low accountability of bureaucrats. Thus, the main goal of the paper is to show whether administrative procedures can solve the problem of bureaucrats’ opportunism, and if they can, what are the key determinants of their effectiveness. To answer the question we provide two simple models of interaction between bureaucrats and citizens, and bureaucrats of different ranks, and describe the links between the models, to show how the introduction of administrative procedures influences the outcome of the interaction between the agents. We also define the set of parameters that can make administrative procedures a real means of control over bureaucrats and thus lead to better quality of government services.
What are the drawbacks of the legislator in the regulation of the appeals, the appeal and the supervisory review of criminal cases will inevitably give rise to problems in practice • How do I resolve a conflict that appeared in the Code rules.
We address the external effects on public sector efficiency measures acquired using Data Envelopment Analysis. We use the health care system in Russian regions in 2011 to evaluate modern approaches to accounting for external effects. We propose a promising method of correcting DEA efficiency measures. Despite the multiple advantages DEA offers, the usage of this approach carries with it a number of methodological difficulties. Accounting for multiple factors of efficiency calls for more complex methods, among which the most promising are DMU clustering and calculating local production possibility frontiers. Using regression models for estimate correction requires further study due to possible systematic errors during estimation. A mixture of data correction and DMU clustering together with multi-stage DEA seems most promising at the moment. Analyzing several stages of transforming society’s resources into social welfare will allow for picking out the weak points in a state agency’s work.