Sak varom förlikning är tillåten? Inslag av tvingande civilrätt i dispositiva tvistemål

Sammanfattning: The relationship between the principle of disposition and the ex officio inquiry principle reflects the fundamental balance between the influence of the parties and the court in Swedish civil proceedings. The principles restrict and are lim-ited by each other to varying extent depending on the nature of the individual case. The principle of disposition regulates the influence of the parties on the pro-cess and generally means that the court is bound by the parties’ claims and the invocation of legal facts and evidence. The ex officio inquiry principle regu-lates the court’s influence on the process and the court’s ability to intervene ex officio in the proceedings. Freedom of contract constitutes the starting point in civil law, but mandatory protective legislation, primarily motivated by considerations of public interest and care for the weaker party, restricts this freedom. Mandatory protective legislation can be partially or strictly indispositive in time and scope. The paper investigates the extent to which the ex officio inquiry principle ap-plies in disputes that involve elements of mandatory civil law. The study shows that the scope varies depending on the purpose of the regulation and whether the mandatory nature of civil law is strict or partial. The conclusion is that in dispositive disputes, mandatory civil law established to protect third parties or public interests should be considered ex officio by the court. Mandatory substantive law that only protects one party or is preclu-sive in nature should not normally be considered. However, the requirements of EU law for the effective application of substantive EU law may expand the court’s obligation to ex officio consider mandatory civil law, primarily when it aims to protect a weaker party. Furthermore, the court should generally exer-cise substantive case management to a greater extent when the case involves civil law established for the benefit of the weaker party.