Styrelseledamöters personliga betalningsansvar vid kapitalbrist - Ett regelsystem i behov av förändring?

Sammanfattning: Provisions regarding involuntary liquidation of companies, due to capital deficiency, have been enforced under Swedish regulation for a long period of time. The overall purpose of the regulation is to set a limit on the time period an unprofitable company may continue to trade before its operations must cease through liquidation. Thus, protecting the creditors of the company from a situation where the company’s assets are consumed prior to the commencement of a liquidation of the company. As a means of exerting pressure, the legislator has implemented a pattern of actions, which the board of directors is required to comply with at a time when half of the share capital has been consumed. If the board of directors fail to act in accordance with the provisions, then they risk becoming jointly and severally liable for all the obligations that the company incurred during the period of liability. The provisions have been criticised for being ambiguous and for creating a competitive disadvantage to the Swedish corporation as a legal form. Furthermore, the fact that the provisions are based on a company’s insufficiency, rather than its insolvency, has been criticised to cause the provisions to trigger too late, at a time when it is inevitable that the company will become insolvent. It has also been discussed whether the statutory minimum level of share capital should undergo further reductions or completely be abolished. If such an amendment is carried out, the provisions regarding involuntary liquidation need to be changed. In previous discussions a framework called wrongful trading, which is enforced under English law, has been proposed as a possible substitution to the current Swedish regulation. This regulation is triggered at a time when the company becomes insolvent and the actions of the board of directors, in the period just before, are examined. The purpose of this thesis is to investigate whether wrongful trading constitutes a more effective regulation than the current provisions regarding involuntary liquidation. As a means of highlighting the advantages and disadvantages with each of the regulations, this thesis studies the Swedish provisions regarding involuntary liquidation and the English regulation regarding wrongful trading. It is argued that wrongful trading constitutes a more effective regulation than the current provisions. The inclusion of such a provision in Swedish law would generate several advantages; above all, it would trigger the directors’ duty to act at an earlier stage than is the case under the current regulation. Overall, such regulation would be more adaptable and benefit corporate creditors to a greater extent.