Skit i borgenärerna! - En analys av undgående av personligt betalningsansvar genom minskning av aktiekapitalet

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: This thesis examines the possibility for the board of a limited company to avoid personal liability for a company’s new commitments during capital deficiency. Capital deficiency is when there is no coverage for at least half of the share capital. The rules on involuntary liquidity in case of capital deficiency are designed to protect the creditors’ interest of the share capital and to ensure that the share capital is not fully consumed before bankruptcy is inevitable. The rules imply a duty for the board, when they have reason to assume capital deficiency, to adopt a certain pattern of action that will ensure either coverage of the capital deficiency or liquidation of the company. If the board fails to undertake these measures, a personal liability will be incurred for the new obligations that the company undertakes during this time. The responsibility is supposed to induce the board to take actions according to the pattern, so that the interests of creditors are protected either by the capital deficiency being recovered or that the company is liquidated before it is completely emptied of assets. One way to recover the capital deficiency is to reduce the registered share capital. This is considered to be practically important in situations where capital deficiency is not an actual risk of rapid, negative economic development as the share capital is sufficient for the business pursued. This thesis has investigated whether such a reduction should be permitted to recover the capital deficiency when the board has an insight in the fact that bankruptcy is inevitable for the company in the near future. The conclusion is that such a procedure should not be permitted, as it contradicts the purpose of the rules of involuntary liquidation, since it threatens the creditors’ legitimate interest for the protection of the share capital and with the result that the rules becomes ineffective.

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