Issue: № 1, 2025
Doi: https://doi.org/10.37634/efp.2025.1.6
Introduction. In the current doctrine and practice of law enforcement, there is still no clear understanding of the essence of discretion in procedural law, in particular, in the context of determining the amount of court costs in administrative proceedings. The purpose of the paper is to disclose the discretion regarding the determination of the court costs amount in administrative proceedings. Results. It has been identified that freedom of judicial discretion is an integral part of the principle of the rule of law in the context of effective protection of unrecognized, violated or contested rights of a person. Among the essential legal characteristics of discretion in procedural law, in particular, when establishing the amount of court costs in administrative proceedings, the following have been distinguished: interpretation of law; process of reflecting, assessment of circumstances to avoid negative consequences; the result of awareness (conclusions, thoughts); will, free choice; solving the question on the merits; the pragmatic limited competence of the court to choose the option of resolving a particular case, which is as appropriate, legal and fair in appropriate circumstances. Conclusion. The author focuses on the fact that the discretion for establishing the amount of court costs in administrative proceedings is related to the implementation of discretion, given the limits of judicial activism and dispositive interpretation of legal norms in order to guarantee legal certainty and unity of judicial practice, ensuring the uniformity of ways of resolving disputes. It is about choosing the optimal model of behaviour in terms of setting the amount of legal costs, taking into account the specific factual circumstances of the case. The relevant judicial practice of the Supreme Court has been addressed.
Keywords : procedural discretion, legal aid, court fee, documentary evidence, reality, reasonableness, proportionality
References:
1. Kuftyriev P.V. Judicial discretion in the theory of law: dis. abstract … PhD in legal sciences: 12.00.01. Kyiv, 2009. 20 p. (in Ukrainian).
2. Miroshnychenko A.M. Judicial discretion, judicial error and judicial arbitrariness (through the prism of judges' liability). Kyiv, 2020. 120 p. (in Ukrainian).
3. Stepanenko V.V. Legal and moral principles of judicial discretion (judicial option). Law Bulletin. 2019. Issue 9. pp. 83–91 (in Ukrainian).
4. Senkiv O.I. Judicial discretion in administrative proceedings: dis. … PhD in legal sciences: 12.00.07. Irpin, 2012. 250 p. (in Ukrainian).
5. Risnyi M.B. Law enforcement discretion in legal practice (general theoretical study). Works of the Lviv Laboratory of Human Rights and Citizen of the Research Institute of State Construction and Local Self-Government of the Academy of Legal Sciences of Ukraine / ed. P.M. Rabinovych;. Lviv, 2007. Series 1. Research and abstracts. Iss. 16. 191 p. (in Ukrainian).
6. Melnyk H.P. Judicial discretion (discretion) as a legal system phenomenon. NaUKMA Research Papers. Law. 2009. Vol. 90. pp. 44–47 (in Ukrainian).
7. Resolution of the Supreme Court dated of 25 April 2023 in the case No. 300/3800/22. URL: https://reyestr.court.gov.ua/Review/110441983 (in Ukrainian).
8. Resolution of the Supreme Court dated of 26 December 2023 in the case No. 380/6904/23. URL: https://reyestr.court.gov.ua/Review/115945549 (in Ukrainian).
9. Zherebkin V.E. Evaluation concepts of law. Kharkiv, 1976. 16 p. (in Russian).
10. Khvorostiankina A. Definitions in legislative texts: an issue of theory. Pravo Ukrainy. 2005. No. 11. pp. 28–32 (in Ukrainian).
11. Tymoshchuk V. Administrative law in the context of the European choice of Ukraine (from the international conference). Pravo Ukrainy. 2004. No. 3. pp. 25–28 (in Ukrainian).
12. Soler L. Introduction à l’épistémologie. Paris, 2009. 335 p.
13. Nuchelmans G. Late-Scholastic and Humanistic Theories of the Proposition. Amsterdam, 1980. 237 p.
14. Maliarchuk O.V. Means of verbalization category of assessment in contemporary English (on the material of political articles from the journal The New Yorker). New Philology. 2014. No. 62. pp. 192–197 (in Ukrainian).
15. Moiseienko H.V. Valuable concepts in the administrative proceedings of Ukraine: dis. … PhD in legal sciences: 12.00.07. Zaporizhzhia, 2017. 222 p. (in Ukrainian).
16. Oveis C., Horberg E.J., Keltner D. Compassion, pride, and social intuitions of self-other similarity. Journal of Personality and Social Psychology. 2010. No. 98. pp. 618–630.
17. Williams M.J. Serving the self from the seat of power goals and threats predict leaders’ self-interested behavior. Journal of Management. 2014. No. 40(5). pp. 1365–1395.
18. Wiltermuth S., Flynn F. Power, moral clarity, and punishment in the workplace. Academy of Management Journal. 2013. No. 53. pp. 1002–1023.
19. Lerner J.S., Goldberg J., Tetlock P.E. Sober second thought: The effects of accountability, anger, and authoritarianism on attributions of responsibility. Personality and Social Psychology Bulletin. 1998. No. 24. pp. 563–574.
20. Schnall S., Roper J., Fessler D.M. Elevation leads to altruistic behavior. Psychological Science. 2010. No. 21(3). pp. 315–320.
21. Brown J.S., Collins A., Duguid P. Situated cognition and the culture of learning. Educational Researcher. 1989. No. 18. pp. 32–42.
22. Macfarlane B. Student performativity in higher education: Converting learning as a private space into a public performance. Higher Education Research & Development. 2015. No. 34(2). pp. 338–350.
23. Barikova A.A. Assessment of the concept in the activities of the Cassation Administrative Court in establishing the admissibility if the case is of considerable public interest or is of exceptional importance to the plaintiff. Bulletin of Zaporizhzhіa National University. 2018. No. 4. pp. 42–48 (in Ukrainian).