The adversarial principle. The principle of procedural equality of the parties

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2019-04-14 07:20:34

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The Basic law of the Russian Federation, declared the equality of rights and freedoms of its citizens regardless of gender, religion, race, nationality, creed and origin. The Constitution guarantees the equality of all, without exception, before the law and the adversarial principle in judicial proceedings. These postulates are reflected and continued in the procedural rules of civil and criminal proceedings.

the adversarial principle

This article will answer questions about what the principle of competitiveness and equality of all before the court, and what the nature of these procedural categories.

General interpretation

Despite some differences of civil and criminal processes, the adversarial principle and equality of the parties provides for uniform interpretation of the legal norm lies in the fact that persons involved in the proceedings, have the same ability to use acceptable means to protect its position in order to defend their case. The court is the authority, which shall monitor compliance with the declared principle, obliged to provide equal conditions for the parties in the administration of justice and is intended to establish the truth in each particular case.

the adversarial principle

The Principle of competition presupposes that the parties should use their rights in order to resolve the dispute in their favor. The initiative of each person in this case is presumed. Every person by themselves or through a representative must use the entire Arsenal and a set of actions for their protection, this can be very legal knowledge and methods, the statement of petitions, taking of evidence and so on.

The Court in every situation must be objective and impartial and not advocate for any side.

Equality in the civil process

Cases on the protection of the rights of citizens and legal persons in connection with personal relationships, economic and commercial disputes are considered in arbitration courts and courts of General jurisdiction.

Regardless of the type of dispute procedure codes are encouraged to respect the equality of the parties and their competitiveness.

The Concept of the principle

Under the equality of parties to civil procedural law understands an equal set of rights that the parties may have in the course of the proceedings in court, namely: the plaintiff and the defendant can equally participate in the examination of evidence, file petitions, give explanations, to call witnesses, participate in debate, to demand the recusal of the court.

the adversarial principle in civil proceedings

The person involved in litigation may not abuse the opportunity so as not to infringe on the rights of the other party. Endless motions to adjourn, the breaks in trials aimed at delaying the process, can the court be regarded as unfair, and in satisfaction of them may be denied. Such actions of the judge are unable to indicate that preference is given to one side and violated the rights of another. The court in any case is solely as an arbitration party and independent arbitrator.

The Law States that the court may not act in any way that the parties saw that it puts a person in an advantageous position over the other. According to this norm, the judge may verbal expressions, nods, affirmative statements to cast doubt on their impartiality.

Participants in the process have the same privileges

Each person can apply a certain algorithm of actions: to speak in support of their arguments, to disclose evidence. The court shall conduct the process so that the time allotted for opening positions at the sides is equal. Of course, you need to adhere strictly to the rules given at the hearing is given a set period of time, in accordance with the schedule of consideration of cases, and interruption for the speaker, who stepped aside from the merits of the dispute, is not a diminution of his rights.

A judgment shall be made only after proceedings

participants of criminal proceedings

The Court is unable to predetermine the outcome of a court fight, despite the seemingly obvious facts, cannot apply certain legal norms, such as the omission of the limitation period, if the participants are not stated. Any actions of the judge beyond the limits of ethics and law, can be appealed by the parties by contactingqualification Board or to the President of the court. If parties have any doubts about a fair resolution of the dispute, they can declare branch to the judge, but you need to give strong evidence of misconduct by court staff, proven not unfounded, and written facts or recording.

The Optionality of participants in the process

Persons involved in the case have the right to dispose of their procedural and substantive rights. They can protect their interests actively influence the occurrence, course and termination of civil process, with the aim of restoring their violated rights. The principles of optionality and competition, many authors consider fundamental to civil proceedings. They define the mechanism of occurrence, development and end of the civil case in General.

The adversarial Principle in the civil process

In the proceedings provides proof to stakeholders of their arguments and legal positions of all of the measures permitted by law. Since the burden of proof the court imposes on the parties, the outcome also depends on correctly chosen method of protection of activity of the participants in the gathering of evidence, timely filed petitions, the correct assessment of enemy action.

The adversarial Principle in civil proceedings provides that, in order to respond to the ongoing second side of the steps. A person involved in the case, to be previously acquainted with their contents. The obligation to submit written evidence not only of the court but of the parties to the dispute is pervoosnovnoe. Only by knowing the contents of the opponent's position, you can choose the tactics, able to prejudice the success of the case.

principle of equality

If participants have not fully used their rights, they bear the risk of adverse consequences. Any alleged claim should be reviewed within three months from the date of treatment, so it is advisable not to break the law and do not require satisfaction of the petition about bringing other persons who call additional witnesses and the taking of evidence in the last date before the end of the term. The court considered such a requirement, the right to refuse and refer it to the principle of competition and the prohibition of abuse of procedural rights.

Use the adversarial principle in court does not mean to turn the courtroom into a duel or fight between lawyers and attorneys. Its essence – a dispute between two parties before the court. Litigation is not a game, but a way of achieving legal truth, and understand the equality and the principle of adversarial proceedings is required in the context of legislative norms. To exercise their rights reasonably required, with respect for the rights of the opponent and respecting him and the court.

Criminal procedure: the adversarial principle

The Constitution of the Russian Federation in the part 3 of article 123 specifies that the process of litigation is based on competition and equality. Providing a fundamental beginning, the main law of the country does not identify or disclose his specific content.

The Principle of adversarial process consists of three mandatory conditions:

  • Separation of procedural functions;
  • Equality of the parties;
  • Impartiality.

Each side has its own functions

The Principle of competition is characterized by the separation of procedural functions. Each side has its own powers. Meanwhile, as soon as the participants in criminal proceedings to enter into the dispute process, they have procedural equality, that is equal part of human rights. The opposite parties in criminal proceedings are the indictment in the face of the Prosecutor, the victim, private Prosecutor and the civil claimant on the one hand and the defendants in the person of the defendant, the accused, their representative, a lawyer and a civil defendant on the other. The participants in criminal proceedings equally enjoy the right of submission of evidence to their study, the statement of petitions.

principle of adversarial process

Regardless of the fact that one of the parties can be punished, and the other has a certain power privileges, namely, to the charging bias requirements designed to punish the offender, both can count on equal treatment on the part of the presiding officer.

The Court has the final decision, and they are separated from the functions of the defense and the prosecution. The court shouldto create the procedural conditions that the parties could equally exercise their procedural rights. Persons on behalf of the state participating in the prosecution of a person in conflict with the law must respect the interests of the defendant and of the defendant as the person and the citizen, based on the presumption of innocence.

Criminal proceedings and equality of arms

Criminal proceedings are fundamentally different from civil as in its objectives aimed at finding and punishing persons who violate the law and the legal position of the parties. If in fact, and in another section of law the parties have opposing interests, the equality of the parties is characteristic rather for the civil law relations, rather than for the criminal process, because on the one hand is the person, which is punishable by law, and on the other hand – a state designed to punish by choosing the penalties. The ratio of capabilities is highly contingent: in one case, and in another - the whole apparatus in the form of bodies of inquiry, investigation, prosecution.

The Right to protection, qualified legal assistance to the accused or the defendant is a guarantee of rights and equality of the parties, as the prosecution is presented by professional law enforcement officers who have the appropriate education. In cases when a person cannot because of certain reasons to hire a lawyer, he must provide free counsel.

Another component of the equality of the parties assumes the principle of presumption of innocence. This concept includes a set of legal norms, the meaning of which boils down to the fact that while in the manner prescribed by law is not proved the guilt of the accused or of the defendant, and the fault is not confirmed by verdict, every person is considered innocent.

the implementation of the adversarial principle

On the Basis of the provisions of this rule, the court is obliged to inspect the arguments of the prosecution and give them a proper assessment. No person against whom a criminal case should not prove his innocence, on the contrary, it is the task of the investigation authorities and inquiry. All evidence must be legally obtained. If they were obtained through violence or threats, the prosecution cannot refer to them. And finally, one of the main postulates: all the doubt in guilt must be interpreted in favor of the defendant.

Impartiality

Category, without which the implementation of the principle of adversarial proceedings impossible. The court must ensure the impartial and fair consideration of the criminal case, all actions of the court should be directed to an independent assessment of the parties ' evidence. If the Prosecutor does not support the prosecution, the court may on its own initiative to continue the proceedings.

Conclusion

An Inviolable observance of the legal norms established by Federal laws and the Constitution of our country on issues of equality and adversarial nature of the trial, will help to avoid legal errors and result in the imposition of a just and lawful decision. The principle of competition, optionality and equality of the parties – the fundamental beginning of the trial.

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