Helsingin yliopisto


Helsingin yliopiston verkkojulkaisut

Helsingfors universitet, Helsinki 2006

Tillgången till den andra instansen i tvistemål

Anna Nylund

Doktorsavhandling, juni 2006.
Helsingfors universitet, juridiska fakulteten, institutionen för straff- och processrätt samt juridikens allmänna studier.

Almost all western European countries face challenges of access to the second courts. The problem of how to restrict access to the second courts in order for the courts to be able to focus on essential cases is neither new, nor rare. At present, the question is of vital importance in Finland as dissatisfaction with the current procedure in the second courts is wide spread. In chapter 1 the research problem and its context are introduced and defined. Some terminological questions are addressed.

The conceptual, theoretical and methodological foundations of the thesis are laid in chapter 2. The theoretical framework evolves, on the one hand, from the nature of legal principles, and on the other hand, from the theory of critical legal positivism. In the thesis a distinction is made between principles and another category of fairly closely related aspects which could be called "guiding-stars". The methodology applied in the thesis could be described as normative-critical jurisprudence, drawing on comparative law. In the part discussing methodology, the focus is on problems concerning comparative law in general and legal transplants in particular.

The framework of alternative ways of regulating access to the second courts is formed within the realms of the European Convention on Human Rights and the Finnish constitution. As the focus has generally been on criminal matters, there are many open questions regarding civil litigation and access to the second courts. Thus, an analysis of both sources of restriction is done in chapter 3.

In chapter 4, the historical development of the second courts in Finland is discussed. The focus is especially on the functions of and access to the second courts in civil litigation.

The problem of limiting access to the second courts is approached from within civil litigation. In the thesis, restrictions arising within civil litigation are investigated. Three categories of standards or mainstays of civil litigation are identified.

The first category is the functions of civil litigation, which are discussed in chapter 5. The discussion about these functions has regrettably not been a lively one in Finland, even though civil litigation is facing new expectations.

The second category consists of civil litigation principles. In chapter 6 the main focus is on three principles. The principle of fair trial is discussed both from an international point of view and from a comparative point of view, drawing examples from other Nordic countries and Germany. The principle of the right to present one's case, originating in German law, is discussed as a possible legal transplant. Additionally, the triple principle of orality, immediacy and concentration is analysed as a complex and multifaceted norm.

In chapter 7, the guiding-stars, i.e. the issues relating to civil litigation as an appropriate tool for dispute resolution, are examined. In addition to promptness, certainty, and inexpensiveness, reliability and flexibility are discussed.

The current and proposed Finnish legislation concerning the procedure in the second courts in general, and access to the second courts in particular, is analysed in chapter 8. The rules concerning seulonta (screening), which is the main way of restricting access to the second courts, are difficult to interpret due to their problematic relation to rules about oral hearings. The rules were drafted swiftly; consequently, the analysis of the situation was insufficient. The wording of the rules gives the impression that seulonta is an alternative procedure instead of a hindrance to regular proceedings in the second court. Consequently, the rules can be interpreted in several different ways, posing problems to the courts. The question is also: is seulonta in concord with the mainstays of civil litigation identified in the thesis? In chapters 9, 10 and 11, Swedish, Norwegian and German law are respectively discussed. All three countries have recently made amendments to rules about access to the second courts. Each chapter commences with a general presentation of the proceedings in the second courts. After that, the focus turns to the ways in which access to full proceedings is restricted in each country.

The procedure in Sweden is fairly similar to Finland except a leave to appeal is needed for small claims. The proposed changes are also interesting as they seemingly take Sweden on a very different path than Finland. The important questions are how much Swedish law actually differs from Finnish law and how the proposed changes affect the situation.

Swedish law has been abandoned in favour of Norwegian law as a source for new conceptions and solutions to problems. Seulonta is supposedly taken from Norwegian law, but the question remains how truthful this claim is. Norwegian civil litigation is highly interesting, as it has recently undergone fundamental changes beginning in January of 2006. Also, there are a surprisingly high number of differences between Norwegian and Finnish law; accordingly, the axiom of similarity between Nordic countries can be questioned in this particular case. In turn, German lawyers already have a few years experience of proceedings based on similar premises and solutions as in Norwegian law. German law is interesting both as a source of information about the impact of the reforms and as a source for new conceptions and ideas about how second courts could handle cases. Germany has already some experience of a system similar to the Norwegian silning, making it an interesting object of comparison. Further on, the lively discussion about the recent changes means Germany cannot be disregarded in a discussion de lege ferenda.

In chapter 12, the different ways of restricting access to the second courts in Swedish, Norwegian and German law are compared. Pure models of the principal institutions are developed as a tool to analyse related institutions in a non-national context. In order to find out whether there are any real differences between leave to appeal and other ways of dismissing cases without full investigation, the pure models are compared. Finally, the procedure in the second courts in Finland and seulonta in particular are compared with the countries mentioned above.

The final chapter is a synthesis and a final appraisal of the different alternatives arising from the pure models and other observations about proceedings in the legal systems examined. These alternatives are then scrutinised in the light of the mainstays of civil procedure, discussed in chapters 5-7, and of Finnish legal tradition, discussed in chapter 4, and of current problems, discussed in chapter 8. The thesis culminates in recommendations de lege ferenda on how to restrict access to the second courts without inappropriately restricting access to justice.

The title page of the publication

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Senast uppdaterad 03.05.2006

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