Jura novit curia

Sammanfattning: Iura novit curia implies that the parties cannot, with binding effect for the court, choose which law should be applied. Nor can they choose how the law should be interpreted or applied. The purpose of this paper was to investigate whether the extent of the principle of iura novit curia in Swedish law is balanced. If not so, the aim is to provide suggestions for a better solution. Iura novit curia has manly three functions: a social function, to stabilize the application of the law. The principle at hand offers both positive and negative effects on the predictability. The court may apply a law which the parties had no reason to anticipate. This causes the application of the law to be surprising. Thus, this has negative effects on the predictability. However, it is also conceivable that iura novit curia offers positive effects concerning the predictability, but in a more general perspective. Behind this lies the idea that it would be impossible to regard the application of law as an expression of “gällande rätt” if the judgements were based on the parties dispositions of the law. Some influence is however given to the parties when it comes to the legal qualification, which was illustrated in NJA 1983 s. 3. It’s difficult to draw any conclusion from this case more than the fact that the parties do have some influence. The problem with surprising application of law has been solved by a recommendation that the court should allow the parties to comment on the qualification which the court has made. One problem with this method is that the courts impartiality can come into questioning. Also it’s only a recommendation which means that surprising application of law still can occur. With regard to the interpretation and application of law the parties have no influence. They do, however, have the opportunity speak their own opinions on how the law should be interpreted and applied. Surprising application of law is also contrary to the “dispositionsprincip” (a principle which determines the parties influence on the process). This principle contains all of the possibilities the parties have to bind the court by. This principle is, in brief, based on the idea that individuals should have the opportunity to themselves choose how to defend their economic interests. “Dispostionsprincipen” contain some possibilities of which the parties can affect the application of the law. In summary the parties do have some possibilities through these to bind the court to their legal qualification. And these cover more of a possibility to do so than the above mentioned influence. My conclusion is that the principle of iura novit curia is balanced as insofar concerning functions of the principle. The problems however, are not adequately solved. My proposed solution is that there should be a “åberopsbörda” (which means that the court cannot regard any circumstances which the parties have not mentioned) regarding which law should be applied. This way the problem with surprising application of law is solved and still de interests iura novit curia aims to protect would not be violated.