Social and Legal Studios

Abstract

The inadmissibility of vesting a dissentient (the judge or the juror) with the right of petition for valid judgements’ review is substantiated. It is proved that handing the legal dispute among the bench members in a higher court without parties’ will obviously contradicts the principle of adversary trial. Vesting a bench member with the right of petition for valid judgements’ review will make the court initiative/active, that “suits” the party to the legal dispute, but is not the feature of the body of justice. The arguments against researchers’ recommendations on giving the bench member’s dissenting opinion the meaning of the “ground” for the automatic case review by a higher court have been expressed. The inadmissibility of a situation in which any criminal case with the bench member’s dissenting opinion rendered would be reviewed by a higher court regardless of the involved parties’ will is proved. Rendering a dissenting opinion is not an automatic indication of the judgment’s illegitimacy. The law violation may be assumed. But just this ground is clearly not sufficient to review a valid judgment (since it would be contrary to the principle of legal certainty). The recommendation on taking minutes of the bench members’ advisement, with entering in the number of votes cast up solving each of the issues to be voted within rendering the judgment is not convincing. The implementation of this suggestion would negate the secrecy of the bench members’ advisement

Keywords: dissenting opinion, procedural consequences, principle of adversary trial

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