Separation and balance of power and discretionary power in public administration

Oana Saramet ()
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Oana Saramet: Faculty of Law, „Transilvania” University of Brasov, Romania

Juridical Tribune - Review of Comparative and International Law, 2018, vol. 8, issue 2, 437-452

Abstract: Separation and balance of powers is one of the fundamental principles which is a fundamental element of the rule of law in any contemporary. The recognition of this principle does not imply that even public administration authorities must have a rigid behaviour, and that they are not allowed to have and exercise a discretionary power, a right of appreciation. However, the exercise of such power or right must be within the limits of that principle and, implicitly, of the principle of legality. Nowdays, we can observe that any public authority, as well as those in the sphere of public administration, tries to force the limits of its discretionary power, or such a behaviour could affect the correct and constitutional functioning of the rule of law. This article is intended to be only an initial approach to identifying the constitutional aspects relevant to the proposed theme by using methods such as comparative or systemic method. Thus, we want to identify those constitutional mechanisms that constitutional legislators have established to prevent overcoming the limits of this discretionary power. Later, through other articles, we will have the opportunity to identify the risk factors that arise in such situations, as well as possible solutions to reduce or even eliminate these factors.

Keywords: separation and balance of powers; discretionary power; public administration; excess of power. (search for similar items in EconPapers)
JEL-codes: K10 K23 (search for similar items in EconPapers)
Date: 2018
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