Adversarial procedures in criminal, civil, arbitration and administrative proceedings: the search for unreasonable differences

Abstract

An attempt has been made to assess the content and implementation of the adversarial principle in the criminal process from the standpoint of comparing specific norms and institutions with their sectoral counterparts in other procedural sectors. It is proposed to replace the ideologically saturated discussion about the benefits and harms of competitiveness for the criminal process with an assessment of the state of its specific institutions. It was revealed that a number of institutions of the criminal process have a non-competitive nature, among them are preventive measures, the return of the criminal case by the court to the prosecutor, monetary recovery, forensic examination, termination of the criminal case in connection with the reconciliation of the parties, appeal and cassation appeal, review of the case on newly opened and new circumstances, etc. Separate borrowings of norms from arbitration, civil and administrative proceedings, which are of a pronounced adversarial nature, are proposed to correct the identified problems of the criminal process.