DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES
Journal Title: Challenges of the Knowledge Society - Year 2012, Vol 2, Issue 0
Abstract
A problem of essence of the lawful state is to delimitate the discretionary power and respectively, the abuse of right in the state’s institutions activities. The legal behavior of the state institutions is being materialized by their right of appreciation, and the power excess yields in the violation of a subjective right or a legitimate interest of the citizen. The application and observance of the lawfulness principle in the activity of the state authorities is a complex problem because the exercise of the state’s functions assumes the discretionary power with which the state’s organs are invested with, or otherwise said the ‘right of appreciation” of the state’s authorities regarding the moment of adopting and the contents of the disposed measures. The discretionary power cannot be opposed to the lawfulness principle, as a dimension of the lawful state. In this study we propose ourselves to analyze the discretionary power concepts and respectively, the excess of power, having as landmark the legislation, jurisprudence and the doctrine in the matter. At the same time, we wish to identify the most important criterions that will allow the practitioner, no matter whether he / she is an administrator, a public clerk or a judge, to delimit the legal behavior of the state’s institutions from the power excess. In this regard, we appreciate that the principle of proportionality represents such a criterion. We consider that the law courts, by applying the principle of Constitution’s supremacy, can censor some juridical acts contrary to the constitutional norms, if the Lawmaker does not foresee the competence of the Constitutional Court in this matter. In our opinion, all law courts, within the limits of the competence granted by law, can control and censor the juridical acts of some public authorities issued by power excess. In order to demonstrate these assertions some theoretical and juridical practice arguments are being brought.
Authors and Affiliations
MARIUS ANDREESCU
Keywords
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