DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES
A problem of essence of the lawful state is to delimitate the discretionary power and respectively, the abuse ofright 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 violatio...
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| Format: | Article |
| Language: | English |
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Nicolae Titulescu University Publishing House
2012-05-01
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| Series: | Challenges of the Knowledge Society |
| Subjects: | |
| Online Access: | http://cks.univnt.ro/uploads/cks_2012_articles/index.php?dir=01_legal_sciences%2F&download=cks_2012_legal_sciences_art_087.pdf |
| _version_ | 1811253980197552128 |
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| author | MARIUS ANDREESCU |
| author_facet | MARIUS ANDREESCU |
| author_sort | MARIUS ANDREESCU |
| collection | DOAJ |
| description | A problem of essence of the lawful state is to delimitate the discretionary power and respectively, the abuse ofright 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. |
| first_indexed | 2024-04-12T16:59:33Z |
| format | Article |
| id | doaj.art-3562bd0de96d436bb6c45ac9e87a94b9 |
| institution | Directory Open Access Journal |
| issn | 2068-7796 |
| language | English |
| last_indexed | 2024-04-12T16:59:33Z |
| publishDate | 2012-05-01 |
| publisher | Nicolae Titulescu University Publishing House |
| record_format | Article |
| series | Challenges of the Knowledge Society |
| spelling | doaj.art-3562bd0de96d436bb6c45ac9e87a94b92022-12-22T03:24:06ZengNicolae Titulescu University Publishing HouseChallenges of the Knowledge Society2068-77962012-05-012-832837DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIESMARIUS ANDREESCUA problem of essence of the lawful state is to delimitate the discretionary power and respectively, the abuse ofright 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.http://cks.univnt.ro/uploads/cks_2012_articles/index.php?dir=01_legal_sciences%2F&download=cks_2012_legal_sciences_art_087.pdfThe discretionary power excessthe abuse of right public authoritiesprinciple of proportionalityfundamental rights and liabilitiesgeneral control for respecting the constitution supremacy |
| spellingShingle | MARIUS ANDREESCU DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES Challenges of the Knowledge Society The discretionary power excess the abuse of right public authorities principle of proportionality fundamental rights and liabilities general control for respecting the constitution supremacy |
| title | DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES |
| title_full | DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES |
| title_fullStr | DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES |
| title_full_unstemmed | DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES |
| title_short | DELIMITATION OF THE DISCRETIONARY POWER FROM THE POWER EXCESS IN THE ACTIVITY OF THE STATE’S AUTHORITIES |
| title_sort | delimitation of the discretionary power from the power excess in the activity of the state s authorities |
| topic | The discretionary power excess the abuse of right public authorities principle of proportionality fundamental rights and liabilities general control for respecting the constitution supremacy |
| url | http://cks.univnt.ro/uploads/cks_2012_articles/index.php?dir=01_legal_sciences%2F&download=cks_2012_legal_sciences_art_087.pdf |
| work_keys_str_mv | AT mariusandreescu delimitationofthediscretionarypowerfromthepowerexcessintheactivityofthestatesauthorities |