Det anspråkslösa anspråket - Hur mycket civilprocessrätt får det egentligen plats i ett brottmål? — En studie i tillämpningen av bevisregler vid en kumulation av målsägandens enskilda anspråk och åklagarens åtal

Sammanfattning: The subject of this essay is court cases where a plaintiff's claim for compensation is based on the fact that the person concerned has been a victim of a crime. More specifically, this essay concerns the plaintiff’s possibility to make the individual claim simultaneously with the prosecutor’s claim for criminal liability. The inquiry focuses on evidence and whether the principles applicable in civil cases have any impact when civil claims are made at a criminal trail. Within the frames hereof, the essay mainly focuses on the standard of evidence and the burden of proof, with emphasis on the aforementioned. The standard of evidence in criminal cases is set higher than in civil cases. The main question of this essay is whether this higher standard of evidence is applicable also for the individual claims made by the victim of the crime, when cumulated with the criminal case. It is concluded that this is a complicated question to which no satisfactory answer has been provided thus far within the Swedish jurisprudence. The Swedish courts, however, has developed a practice that derives from chapter 29 Section 6 of the Code of Judicial Procedure (Rättegångsbalken). The purpose of the section is to clarify the court’s handling of cumulated cases when it comes to voting. It states that the courts are tied to their own ruling in the case of criminal responsibility, when they thereafter have to decide over the case of the plaintiff’s individual claims. Because the standard of evidence is dissimilar in the two different types of cases, the Swedish courts uses the section to apply the higher standard of evidence to both cases, mainly because they often are based on the same facts. There are no precedent cases that clarifies this issue. This essay addresses this approach and concludes that there is a significant lack of relevant legal foundation to back it up, within the frames of rule of law. The section in question was constructed in the 1940’s and at the time discussions regarding different standards of evidence had neither reached the Supreme Court, nor the academy. The purpose of the sections therefore was not for it to have such implications with regard to the plaintiffs litigation. Furthermore, the purposes and functions of the civil law system effectively gets undermined by this practice. While analyzing these results, alternative approaches and their implications are discussed.