السلطة التقديرية في القرار الإداري : دراسة مقارنة

Abstract

Abstract : The subject of the discretionary power of management is one of the important and delicate issues in administrative law and the science of public administration as a result of its association with many important matters, especially the subject of an administrative decision and the powers of management, so that almost unanimity held on the need of the administration to enjoy (generally), and the issuer of the decision, (in particular) the discretionary authority to ensure the effectiveness of the administrative work in various fields and to implement the laws, but they in return should not be of absolute disposition in the implementation of the laws according to its view through the issuance of the necessary decisions, we find that the laws specify to the management what should it follows so that it does not have the freedom to make the decision or omission to take it, in other cases the law does not impose on the management a certain conduct on the subject, so it shall be free to take the appropriate decision. Discretionary authority of management is decided under the legislations in order to exercise some of the administrative activities for which the legislator sees the need to leave the suitability assessment to the opinion of management. The legislator's role is limited at the end to draw on the general framework, leaving management free to move within this framework, including the best of technical and administrative expertise and information to the impossibility of knowing the legislator with all the details and intricacies of administrative life. The legislator has established several guidelines that management must adhere to during the exercise of its discretionary powers; no pursuer in this regard, except in the case of its deviation from these controls, thus exposing it to the control of the judiciary through both abolition and compensation The research acquires its importance as it highlights the discretionary authority of management in administrative decision-making because of its great importance for the study of administrative law and administrative work, especially after the expansion of the role of the legal state and its intervention in the vast majority of decisions related to economic and social life (where the role of the administrative judiciary arises in establishing the principle of legality, if the administration had abused the power granted to it and abused the individual centers, and to face that power through the updated judicial oversight. Nevertheless, it has not received its share of study and research in the Kingdom of Bahrain to understand this power in integrated scientific and practical way because that understanding is the only way to limit the abuse of that power in the face of individuals. The importance of the research is illustrated by illustrating the differing doctrinal views and the situation of the judiciary and comparative legislation of the theory of discretionary power, given the serious implications if it goes against the public interest and seeks to achieve goals and objectives contrary to legality. Finally, the research is considered a useful source for researchers in general and employees of public utilities who have the authority to issue the administrative decision in particular. The contribution is through determining the general framework of discretionary power in administrative decision-making and disclosing its concept and the legal adoption to avoid its negative effects; and the coordination of legislative and judicial efforts through control of legality and judicial oversight developed to reduce them; and through what might be added by the results of this research and the resulting recommendations, the included facts, the various doctrinal views, and information as they finally lead to the possibility of putting this power under control and being able to put legislation and legal principles that ensure the facing of them in the case of abuse by the issuer of the decision effectively and comprehensively Based on the above, the research has been divided into three chapters preceded by an introduction and followed by a conclusion, and it is as follows: In the first chapter, we deal with the study of legitimacy as the basis of administrative discretion. In preparation for the link, which brings us to the focus of the research, we deal with the nature of legitimacy and the idea of ​​discretion in administrative decision-making. It has been divided into three sections, respectively, in which we study the concept of the principle of legality, then the concept of administrative decision-making, and finally, the concept of discretion. In the second chapter, we deal with the scope of the bases of administrative decision-making relating to discretionary authority. We also explained the situation of legislation and comparative administrative justice, as settled by the jurisprudence of divergent views. As these bases were studied in-depth, we divided them into three sections: discretionary power and the basis of the reason for the administrative decision; discretionary power and the basis of the situation in the administrative decision; discretionary power; and the basis of the aim of the administrative decision The third chapter, was dedicated to the study of judicial restrictions on the management discretionary power presented in the cancellation control and control of compensation and suitability, also we reviewed the most prominent judicial tireless efforts in order to reduce the abuse of the discretionary authority by the administrative management in comparative legislation and in particular the situation of the Bahraini Administrative Justice of updated judicial oversight of the and the important judicial applications of them.