Advanced

Att återbära egendom vid aktiebolags konkurs - En jämförelse mellan konkurslagens återvinningsregler och aktiebolagslagens återbäringsregler

Nordenberg, Dan (2007)
Department of Law
Abstract
The purpose of this thesis was to describe, interpret and compare the set of rules in Swedish civil law regarding repayment of unlawful transactions done before a Limited Company has become bankrupt. This paper is merely based on the rules of refunding according to the Bankruptcy Act and the rules invented to prevent illegal dividend of profit in limited companies according to the Limited Company Act i.a. Company Act. The report was conducted in accordance with traditional legal method through the use of regular sources applied in legal studies. In harmony with the purpose of these rules, to protect the company creditors from destructive actions, the result demonstrates that these two set of rules has a partly unison applicable sphere. The... (More)
The purpose of this thesis was to describe, interpret and compare the set of rules in Swedish civil law regarding repayment of unlawful transactions done before a Limited Company has become bankrupt. This paper is merely based on the rules of refunding according to the Bankruptcy Act and the rules invented to prevent illegal dividend of profit in limited companies according to the Limited Company Act i.a. Company Act. The report was conducted in accordance with traditional legal method through the use of regular sources applied in legal studies. In harmony with the purpose of these rules, to protect the company creditors from destructive actions, the result demonstrates that these two set of rules has a partly unison applicable sphere. The largest overlap connecting these legal fields is rules concerning ''repayment of gifts'' but also other similarities are pointed out. Even so, different judicial verdicts can be expected depending on which legal ground the claim is made i.e. whether the claim is based on the Bankruptcy Act or the Company Act. The Bankruptcy Act is found to have a broader applicableness in general then the Company Act. In the analysis it is suggested that legal principles concerning refunding established in Bankruptcy law in several cases can be applied in analogy regarding issues within the Company law area and reversed e.g. the principle stating that credit to an insolvent debtor is to be seen as a gift i.e. a giving transaction without service in return. The topic whether a claim of refunding is a demand of the property itself or a demand of compensation is discussed. The outcome affects the scope of the invalidity issue and has also an impact on the location of ownership. The issue is clarified in the situation when the property comes to the firsthand receivers. Clearly, the claim of refunding is under these circumstances a demand of the property in question. Then the property comes in the possession of third party however, the law fields divides. In Bankruptcy law the principle are maintained. When the property is passed on to a second hand receiver the claim is still a demand of the object. In contrast, the Company law fields regard the claim as a demand of compensation for the loss. The legal position regarding the issue whether an illegal dividend of profit can be healed afterwards through compensating actions is considered to be unclear in Company law. As regards an illegal transaction in opposition to the ''rule of blocking'' established to protect the share capital it is implicated that healing never can be relieving. When it comes to the ''rule of precaution'' however, the legal status of healing is most uncertain and the topic cannot be replied with sufficient certainty. (Less)
Please use this url to cite or link to this publication:
author
Nordenberg, Dan
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Förmögenhetsrätt, Associationsrätt, Civilrätt; oklassificerad
language
Swedish
id
1560700
date added to LUP
2010-03-08 15:55:27
date last changed
2010-03-08 15:55:27
@misc{1560700,
  abstract     = {The purpose of this thesis was to describe, interpret and compare the set of rules in Swedish civil law regarding repayment of unlawful transactions done before a Limited Company has become bankrupt. This paper is merely based on the rules of refunding according to the Bankruptcy Act and the rules invented to prevent illegal dividend of profit in limited companies according to the Limited Company Act i.a. Company Act. The report was conducted in accordance with traditional legal method through the use of regular sources applied in legal studies. In harmony with the purpose of these rules, to protect the company creditors from destructive actions, the result demonstrates that these two set of rules has a partly unison applicable sphere. The largest overlap connecting these legal fields is rules concerning ''repayment of gifts'' but also other similarities are pointed out. Even so, different judicial verdicts can be expected depending on which legal ground the claim is made i.e. whether the claim is based on the Bankruptcy Act or the Company Act. The Bankruptcy Act is found to have a broader applicableness in general then the Company Act. In the analysis it is suggested that legal principles concerning refunding established in Bankruptcy law in several cases can be applied in analogy regarding issues within the Company law area and reversed e.g. the principle stating that credit to an insolvent debtor is to be seen as a gift i.e. a giving transaction without service in return. The topic whether a claim of refunding is a demand of the property itself or a demand of compensation is discussed. The outcome affects the scope of the invalidity issue and has also an impact on the location of ownership. The issue is clarified in the situation when the property comes to the firsthand receivers. Clearly, the claim of refunding is under these circumstances a demand of the property in question. Then the property comes in the possession of third party however, the law fields divides. In Bankruptcy law the principle are maintained. When the property is passed on to a second hand receiver the claim is still a demand of the object. In contrast, the Company law fields regard the claim as a demand of compensation for the loss. The legal position regarding the issue whether an illegal dividend of profit can be healed afterwards through compensating actions is considered to be unclear in Company law. As regards an illegal transaction in opposition to the ''rule of blocking'' established to protect the share capital it is implicated that healing never can be relieving. When it comes to the ''rule of precaution'' however, the legal status of healing is most uncertain and the topic cannot be replied with sufficient certainty.},
  author       = {Nordenberg, Dan},
  keyword      = {Förmögenhetsrätt,Associationsrätt,Civilrätt; oklassificerad},
  language     = {swe},
  note         = {Student Paper},
  title        = {Att återbära egendom vid aktiebolags konkurs - En jämförelse mellan konkurslagens återvinningsregler och aktiebolagslagens återbäringsregler},
  year         = {2007},
}