Legal position of the judge in the course of realization of discretionary powers

Discretionary powers are a widespread phenomenon in the law enforcement activity of judges. This can be explained by the fact that uncertainty and abstractness, being the integral properties of the rules of law, and existence of gaps or defects in legislation often force judges to solve life situations of legal character at their discretion. Quite often legislation contains a large amount of norms, which directly give free rein to the judge or set concrete limits for judicial discretion. In confirmation of the fact that judges use discretionary powers quite often, it is possible to provide the following statistical data: 30% of 300 judgments in the arbitration court of the Kaliningrad region were passed with the use of discretionary powers. The analysis of the above judicial acts also allowed drawing a conclusion that the result of realization by judges of discretionary powers is reflected in judgments in the form of legal positions that form the cornerstone for a law-enforcement decision or action. Legal position is considered an additional result of realization by judges of discretionary powers that are formed together with the main result in the form of legal proceedings or adjudication of a procedural question. If discretionary powers of judges are thought to be a special legal construction, then legal position can be considered as one of the elements of such a construction, which includes the rules of law, the subjective right and freedom of discretion of the judge when choosing a behavior model. Legal positions can constitute both the result of realization by judges of discretionary powers and the result of such processes as interpretation of legal rules and their specification. Scientists believe that the above procedures can serve as means for overcoming defects and gaps in the legislation. However, their nature is different from the one of discretionary powers of judges. In the course of specification and interpretation, a judge has no freedom per se, there is no choice of options for actions and there is no need to develop new ways of adjudication of disputes relying on legal principles as in the course of realization of discretionary powers. Moreover, discretionary powers have an official character, they result from the provisions of law and their implementation is based on law while, being inner thought processes, specification and interpretation have no legally enforceable basis (their implementation is regulated by modern legislation). Specification and interpretation of the rules of law are intellectual operations which take place together with law-enforcement activity, are not its purpose but serve for the explanation of the sense of legal rules and its application to concrete life situations.

Keywords

Authors

References