The Swedish Code of Judicial Procedure (Rättegångsbalken, RB) states that a judgment has binding effects and that the same matter can not be tried twice (17 ch. 11 §). The rule expresses the concept res judicata. It exists to benefit the administration of justice and to an effective economy of justice administration. It also brings security to parties in knowing a conflict has come to a final end. Moreover, the regulation is supposed to direct parties to prepare with all means required, before engaging the court with their dispute. The inconvenience with 11 § is that it is not foreseeable. It can cause a matter, that has not been examined by the court, to be covered by the binding effects – given the legal consequence of the new motion is either the same or alternative and economically equivalent to the previous one. Res judicata then prevents a new examination of the matter, even though the practical causes differ. Thus, it can be questioned if 11 § indeed provides security and predictability to disputing parties. This legal state is a consequence of a vaguely formulated law, the way it is interpreted by the Swedish Supreme Court and in legal scholar. In this essay I examine whether the rule in 11 § is better suited to be formulated by disputing parties themselves, than exclusively through hard law. Should the possibilities for disputing parties to make procedural agreements be expanded, and accordingly allowing parties to gain further insight and control over the binding effects of 17 ch. 11 § RB? The method used to answer this question is legal dogmatics. On the basis of established sources within the Swedish legal system – such as the Law, its motives, rulings from the Swedish Highest Court and legal doctrine – legal dogmatics is sufficient to establish the current legal situation, de lege lata. At the same time the method provides room for a critical perspective on the legal system and opens up for a discussion on what form the legal system should take, de lege ferenda. The conclusion presented in the essay is this. In civil disputes the conflicting parties in question have a major impact over the trial’s framework, on the basis of the principle of dispositions. In accordance with this it is logical for the legal system to allow the parties also to have an influence over the binding effects of 17 ch. 11 § RB. Conflicting parties are in some aspects well suited to make procedural agreements, especially in the form of vindicated settlements. This model, if interpreted in the procedural legal system, could result in predictability for conflicting parties and benefit the economy of justice administration.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-175486 |
| Date | January 2019 |
| Creators | Hård af Segerstad, Rebecka |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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