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Sammanfattning: A value transfer means that a limited company makes a payment without compensation to someone else. There are different types of value transfers, but the one to be discussed within the scope of this thesis is the covert value transfer. The definition of a covert value transfer is found in chapter 17 section 1 paragraph 1 period 4 of the Swedish Companies Act and is defined as “another business event causing a company’s assets to be reduced and not being of a purely commercial nature for the company”. Such value transfers are unlawful, unless all shareholders have agreed to implement them. The problem is how the delimitation should be made between, on the one hand, a covert value transfer and on the other hand a bad business deal on the part of the company. The fact that a business deal ex post is revealed to have contained an element which was not of a purely commercial nature does not mean that it should be classified as a value transfer. Therefore one of the key issues this thesis sets out to investigate is whether it is possible to draw a line between what is to be considered a bad business deal and when a covert value transfer is considered to exist. The other key issue regards who can be the recipient of a covert value transfer, and more specifically the question of whether it is possible to carry out a covert value transfer to someone entirely outside the company. In August of 2018, Erik Nerep, professor in Swedish and International Trade Law at the Stockholm School of Economics, published an essay, in which he argues that covert value transfers are only possible to carry out to recipients who are shareholders in the company or to the shareholders’ related parties. In light of Nerep’s essay, the question of the recipient circle will be investigated. The conclusion regarding the first question is that it is not possible to draw a clear boundary between when a transaction constitutes a bad business deal and when it is considered a covert value transfer. This is because of the ambiguity of the text of the law and the legislative history. This ambiguity has given rise to different opinions in the jurisprudence. In the end, it will be a matter for the Supreme Court to decide how the problem should be solved. Regarding who can be the recipient of a covert value transfer, the conclusion is that the law should be interpreted as meaning that anyone, not just shareholders and their related parties should be considered to be included by the scope of the law regarding covert value transfers. This conclusion is reached since it is required by the purpose of the law, which is to protect the company’s creditors.
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