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Ta hissen till HD: En undersökning av de fall som genom hänskjutande från tingsrätten kommit upp för prövning i Högsta domstolen
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.
2017 (Swedish)Independent thesis Advanced level (professional degree), 20 credits / 30 HE creditsStudent thesisAlternative title
Take the leap to the Supreme Court : An examination of the cases where the district courts has submitted a particular issue in the case for decision by the Supreme Court (English)
Abstract [en]

The Supreme Court’s most important task today is probably to, through their precedent, lead the legislative development forward and to ensure that the legislature and the standards that the legislature subsequently creates are compatible with the constitutional and EU law. In that sense, the Supreme Court also creates its own standards.

Now and then the district courts, with the parties, in an action amenable to out-of-court settlement, identifies a point of law that has not been answered neither in the legislative history nor by court practice. In those cases, it could be favourable for the legal process if the parties had the option to ask the Supreme Court to answer the question, instead of going through the court hierarchy to get the matter resolved. This would favour all parties since both costs and time can be saved.

Since July 1, 1989, this is a possibility. According to chapter 56 article 13 of the Swedish Code of Judicial Procedure, a district court can, with the consent of the parties, submit a particular issue in the case for decision by the Supreme Court.

The provision is discretionary, which means that it is the district court that determines if the rule should be applied. The issue in question must however be a precedent issue. In the end, it is the Supreme Court that has the final say and decides whether leave to appeal should be permitted or not.

The purpose of the provisions origin was to strengthen the Supreme Court’s precedent-forming role without largely burdening the court’s workload. After the advent in 1989, only 37 cases have taken the leap to the Supreme Court which is probably far fewer than it was hoped for. The reason for this may be that the institute, despite the fact that the possibility soon has existed for 30 years, is still relatively unknown. Another reason may be that district courts are, and have been, reluctant to propose to use it, even when the possibility has arisen.

Therefore, I believe that a first step to tackle the precedent drought that still exists could be to make the parties and their legal representatives more aware of the possibility, and also to encourage the district courts to, to a greater extent than today, take the initiative and propose the submitting to the Supreme Court. If this does not result in more” leap-cases”, another resort could be to also include arbitration in the regulation.

Place, publisher, year, edition, pages
2017. , p. 73
Keywords [sv]
Processrätt, Civilrätt, Högsta Domstolen, Hänskjutande av prejudikatfråga
National Category
Law
Identifiers
URN: urn:nbn:se:uu:diva-321585OAI: oai:DiVA.org:uu-321585DiVA, id: diva2:1093979
Educational program
Law Programme
Supervisors
Examiners
Available from: 2017-07-04 Created: 2017-05-08 Last updated: 2017-07-17Bibliographically approved

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