CIVIL PROCEDURE IN SWEDEN

Transcription

1 CIVIL PROCEDURE IN SWEDEN Joel Eriksson, doctoral candidate, civil procedure Civil Procedure in Sweden Goal of the lecture: To provide an overview of the main areas and functions of Swedish civil procedure Main legislation is the Swedish Code of Judicial Procedure, Rättegångsbalken (RB), SFS 1942:740 You have translated parts in your statutes booklet It can also be found as a DS (governmental review publication), which is named DS 1998:65. n N.B. this complete translation is from 1998 (not up to date!). More info on Swedish procedure and the court system at (The Swedish National Courts Administration), amongst other things an extensive SWE/ENG procedural glossary. 1

2 Sweden s Court Structure Administrative and ordinary courts Administrative courts, 12, (deal with disputes between private persons and the authorities, thus reviewing appealed administrative authority decisions). Typical cases: tax, environmental, social securities, compulsory care/comittment, local government decisions, migration (there are migration courts in Stockholm, Gothenburg, Malmö, and Luleå). Ordinary Courts Deal with: n Criminal cases as well as n Civil law cases Typical civil law claims in Sweden: Payment claims, breach of contract claims (damages), consumer claims, construction law claims, family law claims (custody, alimony, divorce, inheritence), aso Swedens Court Structure The court hierarchy regarding the ordinary court system: District courts (Tingsrätt), 48 of them, RB Ch 1 Appellate courts (Hovrätt), 6 of them, RB Ch 2 Supreme court (Högsta Domstolen), 16 Justices (14 presiding), RB Ch 3 Special courts/boards Land and environmental courts (5), Rent and tenancy tribunals (8), The labour court, The market court, The patent court, Freedom of the press/freedom of expression cases (trial by 9 person jury) The National Board for Consumer Complaint (Allmänna Reklamationsnämnden), which issues non-binding decisions. Private dispute resolution, Arbitration, The Arbitration Act, SFS 1999:116 2

3 The Bench The composition/constitution of judges in civil law cases: Three legally trained judges, RB 1:3a (main rule) or One legally trained judge, RB 1:3 although: If the court considers it sufficient, and the case is simple one judge, RB 1:3a III Always one legally trained judge, RB 1:3d n In civil cases open to out of court settlement, if value of the claim does not exceed half a base amount according to the National Insurance Act (2018 the base amount is SEK/2= SEK) Family law cases, one legally trained judge and three lay judges, Children and Parents Code, Föräldrabalken (FB), FB 20:1 Types of Cases Normal civil cases/claims Small claims Value of claim not more than SEK, RB 1:3d Court matters Not really claims but still matters that the courts decide on or administrate: n Changing a personal name, appointment of guardian/ personal administrator, review of debt enforcement, bankruptcy/reconstruction n Court matters are governed by a simplified type of legislation, the Court Matters Act (Ärendelagen) 3

4 General Principles Governing the Procedures ECHR, Art 6.1 Fair trial (Swedish law since 1995) The right to contradiction and equality of arms Principles of: Party disposition (RB 17:3), and the courts Ex Officio powers: n Direction of procedures (RB 42:8 and RB 43:4) n Jura Novit Curia The dynamic between these two principles depends on whether it is an action open to out-of court settlement, which in turn depends on whether the case is based on optional or non-optional civil law (if it is a dispositive or non-dispositive case). General Principles Governing the Procedures Principles of: Oral proceedings, RB 43:5 Immediacy, RB 17:2 Concentration, RB 43:11 Proceedings in open court, RB 5:1, RF 1:9/2:11 4

5 The General Structure of a Civil Case Initiation of action application for a summons Summons (from the court) Answer from defendant Preparatory stage Main hearing Deliberation and judgment Appeal and/or Legal force of judgment Enforcement The General Structure of a Civil Case Initiation of plaintiff, summons, defendant s answer Contents of a summons application, RB 42:2 n distinct claim n detailed account of circumstances invoked as basis for claim n specification of means of evidence and theme of proof n circumstances rendering the court competent (if needed) Contents of the defendant s answer, RB 42:7 n objections regarding procedural hindrance n are the claims admitted or contested n the basis for the defendant s claim and the circumstances made in defence n specification of means of evidence and theme of proof 5

6 Actions One can make two forms of actions: Action concerning a performance, RB 13:1 Declatory claim, RB 13:2 Performance, asking the court to order the defendant to perform something. Most common to pay Also, may be an order to practically perform something (f e hand something over), or to cease doing something (f e stop using a copyrighted name). Declatory claim, seeks to determine whether a legal relationship exists. For example, asking the court to decide whether there is a contractual agreement as such between the parties. The preparatory stage Written and/or oral, RB 42:9 Purpose of the preparatory stage (RB 42:8): n elucidate the parties claims, objections and the meaning of the circumstances they want to allege n find out to which extent the parties disagree about the relevant facts of the case n evidence review n finalize the case for judgment n find out if it is possible for the parties so settle the case Except for truly simple cases, there is usually a preparatory session where the parties meet, RB 42:9 6

7 Main hearing Main rule: a case is determined after a main hearing, RB 42:18. Main hearing in simplified form, RB 42:20 II Main hearing, RB Ch 43 n pleadings and presentation of case from the parties n written and oral evidence n summations Main hearing evidence, RB Ch 35 Principles of: Freedom of evidence (the parties), RB 35:6 Free evaluation of evidence (the court), RB 35:1 Very few rules regarding inadmissibility of evidence, the one example is RB 35:7, evidence obviously without importance 7

8 Judgments, RB Ch 17 The court must deliberate, RB 17:9 Judgment Must be in writing (RB 17:5) Must contain (RB 17:7): n facts stating which court, and the date and time of the judgment n the parties and their counsel n the final judgment n summary of the parties demands and objections, including grounds n reasons for the final judgment If not appealed, the judgment will acquire legal force, and will become legally binding, RB 17:11 Appeals All civil law cases require a leave of appeal to be tried by the appellate court, RB 49:12 Leave of appeal will be granted if: n there are grounds to doubt the correctness of the district court s findings n it is necessary in order for the appellate court to assess the correctness of the district court s findings n it is of importance for the guidance on the application of law n otherwise extraordinary reasons for appeal More detailed rules on the appeal of civil law cases in RB Ch 50 8

9 Enforcement of judgments Carried out by the Swedish Enforcement Authority (Kronofogdemyndigheten) Rules on enforcement is found in The Enforcement Act (Utsökningsbalken, UB), SFS 1981:774 To be able to enforce, one must have a right to execution, complete list in UB 3:1 n For example, a court judgment which has acquired legal force, always carries a right to execution, UB 3:1 1p CIVIL PROCEDURE IN SWEDEN THE END Joel Eriksson, doctoral candidate, civil procedure 9