DEFINITION OF LEGAL PROCESS DISCRETION

Abstract

Introduction. The problem of discretion in the course of law enforcement is not an isolated case of legal validity. Only the legislative body in the country has the right to create by adopting new, amending existing or canceling existing legal norms. But due to the imperfection of the legislation or the existence of a specific construction, the subject of law enforcement is given the opportunity to implement the legal norm based on his own conviction. That does not fully correspond to the principle of legal certainty, i.e. the rule of law must have a specific legal prescription, the implementation of which is carried out in accordance with its essence determined by the legislator. Therefore, the question arises of establishing the essence and features of discretion in the law enforcement process.

Summary of the main research results. In the research, the main parts of the scientific question. The concept of law enforcement was defined, its features as a means of implementing legal norms were emphasized, and the main components of the law enforcement procedure were considered. The issue of cases leading to the emergence of law enforcement discretion is also considered, namely: discretionary powers, evaluative concepts, gaps in the law. An ontology was given to each of them and an analysis of the peculiarities of each legal structure and phenomenon was carried out. Having established the main elements of the scientific question, a comprehensive analysis of their connection with discretion was carried out. The essence and influence of discretion on the process of implementation of the right is defined. The risks of the existence of discretion as an element of legal regulation, the occurrence of which is directly or indirectly allowed by the legislator and provided as a necessary component of law enforcement, are noted.

Conclusions. Having analyzed all the components of the scientific question, conclusions were made regarding the place of discretion in the law enforcement process and ways to overcome the identified scientific problem were proposed. Emphasizing the risks that are caused by the existence of discretion in law enforcement, namely: the application of legal norms not in accordance with the content that is invested in the legal norm by the legislator; realization of one's own interest in the implementation of legal dogma; one-sided law enforcement, there is a need to overcome the relevant negative circumstances. Ways to overcome the specified conditions that allow the enforcer to implement his own will are: determination of the grounds for making a relevant authoritative decision or committing an authoritative act; establishment of meaningful diversity of the evaluative concept that may take place during the implementation of the legal norm, taking into account the multifaceted circumstances that may arise in legal relations; regulate relations that are not directly subject to the law.