Oseriösa anspråk - när man inte har rätt att få sin talan prövad

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Författare: David Bardavid; [2008]

Nyckelord: Processrätt; Law and Political Science;

Sammanfattning: One of the basic principles of Swedish law is that everyone is entitled to have his/her claims determined by a court and that the judgment should be given after a hearing. The main rule is that the plaintiff can claim whatever he/she wants, even if it seems absurd. This is a right also given by the European Convention of the human rights article 6:1, which says that everyone is entitled to a public hearing by a court. In this essay the exceptions are dealt with - when a person is not entitled to have his/her claims determined by the court. Firstly, this essay will deal with the issue of different prohibited claims. This is to help the reader to distinguish these issues from the main issues that come secondly. The main issues deal with immediate dismissal because of evidently groundless claims and dismissal of claims because they are contrary to law or against public policy (pactum turpe). Lack of standing is a compulsory procedural hindrance. An action with a lack of standing is to be dismissed. Another procedural hindrance is an agreement of arbitration. The Swedish Act of Damages 3rd chapter article 7 prohibits action against the state because of decision made by the government, the Swedish Parliament, the Supreme Court or the Supreme Administrative Court. Actions against states, diplomats and others enjoying immunity are also to be dismissed. The court has a possibility to immediately dismiss an action without issuing summons if the claims do not comprise legal reason or if it is otherwise obvious that the claims are obviously unfounded, according to the Swedish Code of Judicial Procedure (RB) 42nd chapter article 5. Generally there is a strong presumption to issue the summons. The whole action has to be unfounded if the provision is to be applied. In case when a default judgment is issued against the defendant according to RB 44th chapter article 8, the plaintiff's stance is to be taken for granted if it is not contrary to what is generally known. An appeal can also be dismissed immediately without being issued if it is obviously unfounded. The rules are similar to RB 42nd chapter article 5. Even if the court has issued an appeal it could still be dismissed if the court later finds it obviously unfounded. An agreement has to be in compliance with public policy to be sanctioned by the legal system. This derives from fundamental legal principles. It is for the courts to decide if a specific agreement is void. It doesn't necessarily mean that the agreement lacks all legal consequences just because it is void. To dismiss claims because of an agreement contrary to law or against public policy is motivated by a public interest of nullity character. Such a situation should therefore be regarded ex officio by the court.

  HÄR KAN DU HÄMTA UPPSATSEN I FULLTEXT. (följ länken till nästa sida)