THE PROCEDURE LAW COMMITTEE’S PROPOSAL FOR THE COURT CODE.
One can distinguish two stages in the work on a process reform, which began in the last half of the 19th century and then, with longer or shorter interruptions, was carried out, with regard to replacing the procedural code in the 1734 law with a new procedural law. During the first of these stages, the Law Committee’s and the Law Committee’s proposals, as well as the New Law Committee’s report in principle, were submitted.
While the Law Committee and the Law Committee’s proposals mainly aimed to change in detail or to complete our current procedural law, the New Law Committee proposed more far-reaching and radical changes therein. But all these three reform efforts had in common that they maintained the main principle of the procedural procedure, according to which legal cases are decided on the basis of writing: minutes, pleadings, or other written documents.
The Process Commission’s report of December 15, 1926, the KM’s bill to the 1931 Riksdag concerning the main grounds for a process reform, and the Process Law Committee’s proposal for a procedural code with reasons, dated November 29, 1938, belong to the latter of the two mentioned stages. 1
In the period after the introduction of the New Law Committee’s principle report, people in wider circles in our country, among those who had any interest at all in a process of reform
and possess some expertise in the subject, have become convinced that a new Swedish procedural law must be based on the principles of the procedural procedure, which are still, regardless of their considerable age, described as modern, and which already long ago had to determine foreign procedural legislation , namely the principles of orality and immediacy. The Process Commission, which took an overly critical stance towards our existing judicial system, recommended a radical reshaping of it in connection with these basic principles.
The strong reprisals, which were directed from different quarters against the commission’s report, caused the above-mentioned king. the proposition, about which at large seen, it can be said that it did not to the extent that the commission wanted to break with the existing, especially within it, that it took more into account the value of, yes to no small extent the necessity of, that the orally presented procedural material through protocol keeping (or another device) is preserved for future use. Following the guidelines for a process reform, which were thus commissioned, and in accordance with the additional directives in the same direction, which were given by the Riksdag, the Process Law Committee’s proposal has been prepared. What Is An Example Of A Procedural Law?
The proposal in question covers both main types of process (in the narrower sense), civil process and criminal process. I have the review I will employ in the following, but it does not may become excessively bulky, and limited to civil proceedings, except as far as the statutes are concerned, which are common to both types of proceedings. Details, which lack principal interest, do not come into consideration at all.
That it is primarily a question of the rules for the procedural procedure, is already clear from the hints given above.
Other main parts of the proposal relate to the judiciary and the evidence. As far as the judiciary is concerned, it is, as is now generally understood, that the procedure must be decisive for the court organization and not conversely the court organization for the procedure.
To what extent the administration of justice satisfies the requirements that must be placed on the same, depends essentially on how the procedure is organized, and it is clear that the courts should be so organized that they are fully sent to maintain the procedure, as it is regulated in the law. My intention is not to enter into any review of the proposed rules regarding the courts to a greater extent than that question cannot be
THE PROCEDURE LAW COMMITTEE’S PROPOSAL FOR THE COURT CODE. SOME NOTES AND REFLECTIONS. 3
is not taken into account, whether these rules prepare the courts a composition that enables them to fulfill their task. 1
As the rules on evidence form an extremely important part of the content of the procedural law and to a large extent determine the design of the procedure, I hope to be able to emphasize in a later article what I have found particularly remarkable within it. A few remarks will also be devoted to the proposal’s regulation of certain other institutes.
Before examining the factual content of the proposal to the extent that the above statements suggest, a few reminders regarding formal issues may be appropriate here.
Regarding a bill, which was added with a claim to replace the procedural code of 1734, famous for its distinguished style, as a law, one cannot help but adhere to the purely formal wording. In doing so, it may not be the intention to set up the aforementioned procedural code as a pattern in stylistic terms, which should be followed as far as possible. Its style cannot nowadays be achieved and, moreover, would not be suitable for a modern team with its extensiveness of abstractly held or often detailed rules. In the current bill, the language is, in my opinion, generally correct, simple, and easy to understand. That some exceptions occur in a bill of such large scope as the present one is quite natural and could hardly have been completely avoided. Granted, however, during the further course of teamwork, the shortcomings that may be found to be at hand should be cured. 2