Słuszność a uznanie administracyjne

Abstract

Fairness criterion can affect application of law processes (including decisions undertaken by administrative bodies) in different ways. The main goal of this paper is to answer the question when and how it may affect content of a decisions based on administrative discretion. Administrative discretion is understood as a possibility of choosing legal consequences of an administrative act. Generally speaking, an analysis of the influence of fairness allows to point out two basic decisional situations. In the first situation the legal norm, which is the normative basis for discretional decision also refers to fairness as criterion that should be or must be taken into account. The scope of discretion of administrative body will depend on the type (direct or indirect) of this reference. In the second situation there is no such type of reference in the legal norm and it depends on administrative body whether it will take fairness into consideration. However, in a specific case there may be some informal recommendations of a body placed higher in the administrative hierarchy to include this criterion in decision-making process. In addition, the content of a decision based on administrative discretion is also affected by some other factors.