Đorđe Tasić o slobodnoj oceni (diskrecionoj vlasti)

Abstract

U ovom analitičkom, delom i kritičkom zapisu, izučen je Tasićev i tasićevski ogled o pravnom institutu slobodne ocene, postavljen kako na doktrinarnoj i uporednoj, tako i na praktičnoj ravni. Proniknuto je u njegovu bogatu i iznijansiranu misao, osobito u gledište o razlici između pravnog tumačenja i slobodne ocene, kao i o granicama ove druge. Takođe, prikazani su oblici prekoračenja vlasti pri diskrecionom odlučivanju, sa stanovišta sudske kontrole upravnih akata i zaštite subjektivnih prava. Na završetku priloga je vrednosni stav, praćen polemičkim tonovima.

Tasic's crucial thesis is that between discretionary power and interpretation of law there is no difference at all, both in terms of quality and the 'results' ensuing, so that such difference may be found only in the way of vesting the relevant agency with that power. I am not, however, sure that this distinction is only in teams of level of intensity, and still less that it has the character of the initial point or of essential element. In short, and in contrast to Tasic's qualification, I think that the distinction between interpretation and the discretionary evaluation in decision-making is of essential character, while the techniques of their putting into statute are only derived consequence. The real root of this difference in views is found in the character of a given legal matter. If, namely, a situation in real life is that delicate and subtle and excessively 'filled out' with specific and unforeseen and changeable parameters - the law-maker may Leave over that fluid space to the direct subject implementing the precept, in such a way 'putting down' some quantity of making norms from the general to the individual level. Put in a concise way, in case of free, discretionary power of decision-making those ruling are the elements of subjective and of the individual. They are followed by recognizable legal shores, while in case of 'restricted interpretation, the dominating substratum is the one of the relatively objective and general, and its determinants are more or less firmly shaped and defined by the norms. Great contribution of Tasic is that he has elaborated in the most detailed manner the external and, more particularly, internal frameworks of discretionary power. He has harmonized and made them more noble by introducing eternally modern and progressive requirements of rationality and morality. By all means, he has succeeded in such a way to promote the ideal balance between the preservation of the core of discretionary power in deciding as against an ever more complete judicial protection of the nights of citizens and of legality within the discussed issue.