Disproportionate procedural activity of the court in ascertaining the facts in proceedings under the CSP in the context of the violation of the right to „equality of arms“ and the principle of adversarial proceedings

Abstract

The contribution deals with the issue of adversarial litigation according to the provisions of the Civil Litigation Process. The adversariality of the trial means that two contentious parties with an adversarial interest in the outcome of the civil process are opposed to each other. The applicant and the defendant are engaged in procedural activity towards the outcome of the proceedings which would have benefited them. It is not inconceivable that the outcome of the proceedings should equally satisfy both parties to the dispute in an adversarial position. However, the court’s approach to the adversarial nature of the disputed proceedings is perceived by the practice problematically, since the courts often, even in proceedings under the Civil Procedure Code, often apply institutes typical of non-contentious proceedings, i.e. they actively conduct the questioning of parties or witnesses, proactively assuage facts that are not disputed in proceedings and are often not claimed by anyone.