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There are basic provisions for precautionary measures in civil cases in Chapter 15 of the Code of Judicial Procedure. The general rule is that no enforcement measure with regard to a civil law claim can take place until a court has judged the case. The provisions concerning precautionary measures are an exception to this rule. The precautionary measures generally aim to ensure that the losing party performs what is required of him or her following a future court decision.
The most common precautionary measure is sequestration, which means that an applicant can have any property that the other party holds taken possession of, or have the opposite party’s right of disposition withdrawn in some other way.
According to Chapter 15, Section 1 of the Code of Judicial Procedure, sequestration may be granted to ensure the future execution of a judgement with regard to a claim. As a principal rule, the sequestration decision in accordance with this provision is to be worded in such a way that property belonging to the debtor to cover the value of a certain specified amount claimed is sequestrated. In exceptional cases, the decision may, however, state what property may be subject to execution.
Sequestration may also be granted to ensure the future execution of a judgement with regard to a superior right to certain property (Chapter 15, Section 2 of the Code of Judicial Procedure). Examples of such judgements are those that include decisions that the plaintiff is declared to have a superior right to certain shares over the defendant, as well as those where the defendant is obliged to immediately hand over the shares.
In Chapter 5, Section 3 of the Code of Judicial Procedure there is a general provision concerning the court’s right to prescribe a suitable measure to safeguard the applicant’s right. This provision is, for instance, applied in actions for injunctions. A claim for confirmation that the defendant is not entitled to work with certain goods specified in a competition clause has also been deemed to fall within the scope of the provision.
In addition, according to Chapter 15, Section 4 of the Code of Judicial Procedure, the court may in cases of a superior right to certain property decree the return of the dissipated asset, etc.
It is moreover stated in Chapter 15, Section 5, subsection 3 of the Code of Judicial Procedure that an interim precautionary measure may be granted under certain conditions.
In addition to this, there are also separate provisions concerning precautionary measures within some special fields, e.g. patent law.
Decisions on precautionary measures are granted by the court where the court action is pending. If the court action is not pending, the same provisions concerning the court of competent jurisdiction apply on the whole as for civil cases in general.
The court cannot raise the question of precautionary measures of its own accord. It is therefore a requirement that the party wishing such a decision submits a motion for this. If the court case is not pending, the motion must be submitted in writing.
There is no requirement for an applicant to be assisted or represented by a solicitor. Legal proceedings at Swedish courts are free of charge, with the exception of an application fee that is presently SEK 450 (about EUR 50).
In order for measures in accordance with Chapter 15, Sections 1-3 of the Code of Judicial Procedure to be granted, it is a condition that the actual main issues (e.g. a claim in accordance with Section 1) can be the subject of a court case or examination by another similar procedure. The latter includes arbitration procedures.
The Supreme Court has deemed that sequestration or other precautionary measures in accordance with Chapter 15 of the Code of Judicial Procedure can also be granted with regard to claims that are to be tried by foreign courts if the court’s decision is to be executed in this country.
In order for sequestration in accordance with Chapter 15, Sections 1 – 3 of the Code of Judicial Procedure to be granted, the following conditions must also be met:
The execution of decisions concerning sequestration for claims consists in seizing property up to a certain value. With regard to execution, the same principles mainly apply as in the case of distraint. There will, however, be no question of selling the property.
In principle, any kind of property may be seized during execution. The property may be movable or immovable.
Certain property may not be seized. This is the case with "benefice property", by which is meant inter alia:.
Property may also be protected under separate regulations. This may be the case with, for instance, damages.
Sequestration for claims may not be applied to pay etc. before it has been paid and can be seized.
When property has been subject to sequestration for debts, the defendant may not transfer the property. Nor may the defendant dispose of them in any other manner to the detriment of the applicant. The Enforcement Service may, however, allow exceptions to the prohibition on disposal if there are special grounds. Any disposal that contravenes the prohibition may result in criminal liability.
When a measure in accordance with Chapter 15, Sections 1 – 3 of the Code of Judicial Procedure has been granted, the applicant shall, if the action has not yet been brought, raise a case with regard to the matter within one month of the decision. If the claim is to be examined by another procedure, the applicant is instead to take measures in accordance with what is prescribed for that procedure.
If the measure is granted in the interim, the decision is to be sent to the parties and the defendant is to be ordered to comment on the decision. If such comments are received, the court is to submit the question of whether the measure should stand for fresh examination at once.
A measure is to be immediately revoked if, after it has been granted, security is provided that satisfies the purpose of the measure.
A matter of precautionary measures is to be determined through a decision both when it arises as a procedural issue in connection with the trying of a case and when the issue of precautionary measures is independent.
In both situations, the decision may be appealed against by the person that the decision goes against. A person who wishes to appeal against the decision of a district court is to do this in writing within three weeks of the date that the decision was issued. If the decision has not been issued at a sitting, and it has not been announced at any sitting when the decision is to be issued, the time limit for appeal will be reckoned from the date that the appellant received the decision. The appeal is to be placed before the court of appeal but is to be submitted to the district court.
If the district court has rejected an application for precautionary measures in a civil case in accordance with Chapter 15 of the Code of Judicial Procedure or revoked a decision regarding such a measure, the court of appeal may immediately allow the measure to apply until further notice. If the district court has granted such a measure or declared that the decision may be executed although it is not yet final and absolute, the court of appeal may immediately decide that the district court’s decision may not be executed until further notice.Top
Last update: 29-08-2006