En ny talan om samma sak - Om innebörden av facta supervenientia och om utformandet av kärandens talan

Sammanfattning: The rules on legal force are much debated in the doctrine of civil procedure law. The legal force is not absolute. The legal force is limited, among other things, in terms of time by factum superveniens/facta supervenientia. Facta supervenientia are circumstances that could not be referred to in a first pro-cess and which, without being hindered by the legal force of the previous judgement, are allowed to be referred to in a new process. The objective of this essay is to analyze the scope of the negative legal force in a situation where the plaintiff in a new process refer to circumstances that may constitute facta supervenientia. To achieve the objective of the essay, I give answers to the following questions: (1) what type of circumstances may constitute facta supervenientia? and (2) when must circumstances occur or become known to the party in order to be alleged as facta supervenientia?. Based on the scope of the negative legal force, I also answer: (3) what considerations should the plaintiff make when the plaintiff is to formulate his original claim?. To be able to give answers to all questions, the identity of the subject is decisive. The essay therefore initially analyzes what constitutes “the same subject”. The bill to the Code of Judicial Procedure does not illuminate facta supervenientia. In my research, I have for that reason primarily used court practice and doctrine. I have therefor primarily applied the legal dogmatic method, which is used for determining the applicable law with the help of generally accepted sources of law. However, in order to be able to analyze appropriate considerations when formulating a claim, I have used the legal analytical method. The entire essay is thereto characterized by a process economics perspective. In summary, my conclusion is that only legal facts that are relevant to the subject can constitute facta supervenientia. Evidentiary facts cannot constitute facta supervenientia. In addition, the circumstances must occur after the first judgement has gained legal force in order to constitute facta super-venientia. The decisive time is thus the time when the previous judgement becomes legally binding and the circumstance must occur after the decisive point in time. It is not enough that a party becomes aware of the circum-stance after the decisive time. This definition of facta supervenientia means a clear dividing line between the possibility of petition for a new trial and the possibility of a new claim due to facta supervenientia. When the plaintiff formulate his original claim in a first process, the plaintiff should con-sider course of events, party position in any contractual relationship with the defendant and relevant legal consequences. In the event of a claim for specific performance, there is, however, a possibility to claim an obligation to fulfil something, which comes to effect only when another obligation is not fulfilled (ch. 13 1 § 2 p. of the Code of Judicial Procedure). This means, for an example, the plaintiff can claim to receive certain property and, if the property cannot be handed over, damages. Such a claim is economically advantageous, because the plaintiff then avoids a possible second pro-cess.