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This article completes a series of three scientific publications planned by the Editorial Board of the Siberian Law Review, the Authors of which discuss the problem of administrative discretion, which is very relevant for Russian administrative legal theory and legal practice, in a question-answer format. Contrary to the opinion justified by Petr P. Serkov in the previous article about the impossibility of a fruitful study of administrative discretion without referring to the “analytical potential of the mechanism of administrative legal relations”, Yuri P. Solovey gives arguments indicating the unsuitability of this “logical structure” for studying legal realities. From his point of view, the use of this artificial and meaningless concept, without a doubt, is a violation of the well-known methodological principle “Occam’s Razor”: one should not multiply things unnecessarily. In this regard, PetrP. Serkov was asked two questions: firstly, could he conduct, within the framework of this article, an indicative analysis of a specific discretionary administrative act using the “logical structure of the mechanism of administrative legal relations”, which would make it possible to draw a conclusion about the legality (illegality ) of such an act, and, secondly, what is its relation to the principles of administrative procedures as legal means of control over administrative discretion and the need for their extensive legislative consolidation. Anticipating the answers to the questions posed, Petr P. Serkov critically analyzes the arguments of “discretionary disagreement” of the specified Author. It is concluded that the phenomenon of administrative discretion covers any managerial decision made by any official of state executive bodies and local governments in the exercise of any of the powers assigned to him. Such a vision of administrative discretion implies a significant adjustment of the method of its research, the priorities of which should be a person, his consciousness and psyche. Concerning the first of the questions asked, Petr P. Serkov, using the “analytical potential of the mechanism of legal relations”, analyzes a hypothetical situation in which a police officer performs a discretionary administrative action by stopping a vehicle. The Author argues that the named “potential” clarifies not only what administrative discretion is, but also how it is formed and what it is intended for. Answering the second question, Petr P. Serkov notes that the procedural legal regulation of the activities of state executive bodies will certainly bring positive effects to the phenomenon of administrative discretion, but it is not clear to what extent the principles of administrative procedures are able to prevent illegal administrative discretion. It should be taken into account that scientific controversy regarding the understanding of legal principles has been going on for decades without the prospect of reaching a doctrinal consensus. In general, the discussion of the essence of administrative discretion shows, according to Petr P. Serkov, the imperfection of the current state and the conceptual vulnerability of the methodology of conducting scientific research and scientific controversy.

The article analyzes the interaction between administrative discretion and the main social regulators – religion, ethics and law. It is shown that historically discretion arises as a religious institution, consisting in the trust of public authorities and their officials in prophets – people who are able to contact with the divine forces. The procedure of discretio spirituum, used in the Middle Ages to determine whether a person is a prophet or a false prophet, is described separately. The significance of this procedure is expressed in the partial secularization of discretion, that is, the assumption by church authorities that the divine injunctions can be interpreted, supplemented, or ignored not only by God, but also by the aforementioned persons (prophets). This recognizes that discretion can be both negative (negative) and positive (positive); that the amounts of discretion granted to prophets must be in direct proportion to the degree of trust in them; and that there are specific criteria according to which to establish what amounts of discretion will be granted to prophets. After many centuries, this concept of administrative discretion has remained virtually unchanged. Ethical science reproduces it almost literally: it again refers to the trust, which this time is granted to executive authorities and their officials, as well as to the degree of such trust, which determines the scope of discretionary powers and is determined by certain criteria. Legal science borrows the above theory less explicitly, but its echoes can be detected there as well. In particular, according to one of the concepts of law understanding the law embodies a distrust (degree of distrust) between the people, and since the law and discretion are usually opposed to each other, discretion is again defined as trust (degree of trust). In the conclusion the conclusion is made about the special relevance of this approach to the administrative discretion because since 2020 the trust is a constitutional category.

The article continues the discussion organized by the journal with the participation of professors Yuri P. Solovey and Petr P. Serkov on the problem of administrative discretion. The Author proposes to look at the difference between the internal content of administrative discretion and judicial discretion, which is evolutionarily incorporated in the proceedings on administrative offenses. The reader is invited to the conclusion that administrative responsibility has historically been imposed by government bodies for disobedience to the current management order. The authorized body acts on behalf of the public authority, and the responsibility imposed by it means the responsibility of a person to the government for disobedience to its internal policy. In Russia, it arose in the 1920s, when V. I. Lenin considered the people's courts weak in resolving issues of the application of public law penalties to persons who do not comply with the norms established by the Soviet government. The judicial order arose and evolved as a people's revision of the public authorities' initiative for administrative prosecution. Such a reform of administrative responsibility was carried out after the death of I.V. Stalin N. S. Khrushchev, who, trying to restore the lost trust of society in the authorities, believed that administratively punishable acts should cause condemnation not only of the authorities, but also of society. Some categories of cases of administrative offenses were assigned to the competence of the people's court. The court acts on behalf not of the public authority, but of the country as a whole. When imposing a punishment, the court declares the person guilty before the country not of an anti-government, but of an anti-social act. Administrative responsibility is evolutionarily connected with the discretion of the jurisdictional body. Its content is various social rules and values, including principles, as well as political considerations. Administrative discretion is dominated by managerial values: general prevention, ensuring public order, controllability of the masses, tax collection, implementation of state policy, etc. Judicial discretion, being realized on behalf of the country, reproduces the social norms and values of Russian society as a whole. Both legislative norms and managerial values are preserved, but become part of the general range of social norms and values, which is dominated by the universal principles of justice, reasonableness, proportionality and an adequate balance of private and public interests.

The article continues the discussion on the topical issue of administrative discretion for Russian administrative-legal theory and legal practice, organized by the editors of the journal “Siberian Law Review” on the pages of two previous issues of the journal with the participation of P. P. Serkov and Yu. P. Solovey. The Author focuses on the state of the modern domestic doctrine of administrative discretion, the contribution of Russian legal scholars to its development, the need and possibility (including criteria and limits) of delimiting administrative discretion from other types of discretion. It is proved that the Russian jurisprudence demonstrates, contrary to the assertions of some experts, not confusion in the face of the problematic category of discretion, but ontological and methodological certainty, although sometimes reaching extremes. At the same time, there is no single Russian doctrine of discretion, there are many such doctrines, and some scholars have the right to claim that specific doctrines are associated with their names. The Author draws attention to the fact that discretion in general and administrative discretion in particular are interdisciplinary (interscientific) categories, so they must first of all be rid of the semantic and meaningful “layers” of other sciences. The sooner a pure theory of discretion appears, the more mistakes and risks will be insured against by legal science and law enforcement practice. In order to avoid terminological confusion and preserve the subject matter of the study, it is absolutely important to distinguishfour concepts: 1) administrative discretion; 2) judicial control over administrative discretion; 3) judicial discretion; 4) judicial discretion in the exercise of judicial control over administrative discretion. These concepts have a certain connection with each other, however, they designate different (partly even by their branch affiliation) categories, phenomena, processes and institutions. As a conclusion, it is indicated that the motives of each discretionary decision of the public administration must sooner or later (better sooner than later) be made public. To make this a reality, legal science needs to develop and offer effective legal guarantees for ensuring the rights of citizens and their associations when public authorities exercise their discretionary powers.

Administrative discretion is an important construction of modern administrative law, the formation of which in many respects can be viewed as a “struggle” to limit the discretionary powers of the subjects of state administration. It is well known that good governance would be impossible without administrative discretion. There are four stages in the development of the modern theory of administrative discretion and each stage was devoted to one aspect of this one but these stages did not coincide chronologically and developed in parallel. They had a different methodology, which was used by the founders and followers of the approaches prevailing at each stage. The first stage started in France and formed by the 18th century. This related to the concept of prudent governance exercised prudent officials who were ruled by enlightened monarch. Their decisions were not reviewed by the courts. The principle of reasonable is the modern result of this stage – an absolutely unreasonable administrative act is null and void. The second stage developed in parallel with the first one but formed by the 19th century. Administrative discretion was formed as legal concept on this stage, and it was presented as free discretion, which also could not be a subject to judicial review. The third stage, characterized by competition between administrative justice and free discretion, took place at the end of the 19th and the middle of the 20th. Judicial possibilities for reviewing discretionary acts gradually expanded, criteria for evaluating such acts were created. These criteria were incorporated into the laws and legal judicial positions after the fourth stage began. The creative side of discretion has become a very important part of this legal construction, administrative discretion at this stage is defined as a way of laws concretizing. Nowadays, the third and fourth stages are developing in parallel in Russia. It should be noted that the Russian administrative law doctrine was formed as a common doctrine Civil Law system. Russian authors always used the methodology of Civil Law system, developed it, but they paid attention to the specifics of our administrative law, our governing and historical development. Nevertheless, Russian doctrine needs more research in order to create more legally formalized administrative discretion. As a result, the legislature and courts should receive academic decisions suitable for implementation.

This article continues the series of scientific publications planned by the editors of the Siberian Legal Review, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for the Russian administrative law theory and practice, in the “question-answer” format. In the domestic legal literature, one can find various definitions of administrative discretion; they are also contained in the legislation of a number of post-Soviet states. Pointing out the shortcomings of some definitions of the named concept, Yuri P. Solovey proposes to define administrative discretion by the choice made by public administration of a variant of solving a managerial issue in the form of an administrative act (regulatory or individual), corresponding, in its opinion, to the requirements established by law for administrative acts, in conditions of insufficient legal certainty of goals, grounds, conditions, content, situation, place, objects (addressees), subjects, procedure for registration, procedure and (or) terms (time) for the adoption of an administrative act. In response to the question about the appropriateness of such an approach to understanding the concept under consideration and the call to formulate his own definition of administrative discretion, Petr P. Serkov agrees with the critical assessments of the mentioned definitions of the concept of discretion. At the same time, in his opinion, the study of the phenomenon of administrative discretion does not involve the interpretation of this phrase, as a result of which the other definitions of discretion are born, but, first of all, the clarification of its content. The latter is impossible without referring to the logical construction of the mechanism of administrative legal relations, since discretionary decisions are filled to the maximum extent with the immutable logic of the emergence and development of this mechanism, available for reproduction and control. Meanwhile, the analytical potential of this construction, unfortunately, remains unclaimed in the theory of modern administrative law. Petr P. Serkov concludes that administrative discretion functions in the naturalness of legal reality, formed by legal regulation, including due to the ideological content of the norms of administrative law, and their state mental coercion as an unalternatively necessary component of legal regulation.

This material opens a series of scientific publications planned by the editors of the Siberian Law Review journal, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for Russian administrative legal theory and law practice, in the “question-answer” format. The scientific, theoretical and practical significance of the noted problem is predetermined by the fact that the exercise of discretionary powers by the public administration (as opposed to powers strictly bound by law) is fraught with the greatest threat to the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations. The purpose of the study is to clarify issues related to the concept and essence of administrative discretion, its regulatory legal framework, forms of implementation, ways to establish the limits of discretion of public administration, criteria for assessing the legality of discretionary administrative acts, judicial and agency control over administrative discretion. The subject of the research is normative legal acts, legal principles, administrative and judicial acts, scientific works of Russian and foreign legal scholars. The hypothesis of the study is that, despite the abundance of scientific publications on administrative-discretionary topics, the domestic doctrine of administrative discretion is a motley mixture of judgments that do not agree with each other, often divorced from the needs of administrative and judicial practice, characterized by the absence of a single categorical apparatus. According to Yuri P. Solovey, an important, if not the most important section of administrative discretionary issues, are the limits of judicial control over administrative discretion, which has practically fallen out of the field of view of Russian scholars, despite the fact that it has been thoroughly studied abroad for more than a century and a half. From the point of view of Petr P. Serkov, the domestic science of administrative law has not yet properly answered three fundamental questions, namely: what is administrative discretion, what is it intended for and how is it carried out. The Authors of the publication are unanimous that such a “doctrine” of administrative discretion does not contribute to the development of legislative solutions to bring such discretion to the standards of a legal, democratic state. In the process of research, dialectical, formal-logical, formal-legal, comparative-legal methods of cognition, the method of interpreting law, analysis of materials from administrative and judicial practice are used. The Authors attempt to streamline the categorical apparatus of the theory of administrative discretion, as well as to formulate its main provisions and some proposals for improving the current legislation.

The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.

Nowadays discretion is the notion used loosely enough in the legal sphere. Consequently, in different situations connected with application of discretion it is interpreted in different ways. The article deals with the issues relating to the modern role of discretion in state administration, the notion of discretion and its distinctive features.