När skulder inte betyder skuld

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: The law of bankruptcy debtors has historically changed in a relatively comprehensive manner. In Roman law enslavement and similar treatment was the common consequence. In some cases the debtor could obtain relief, but this was an exception. Throughout history, the trend has gone towards a more lenient treatment of the bankrupt debtor. Today, for the legal entity, the exception is no longer an exception but the main rule. Punishment of various kinds will only be utilized in exceptional cases. However, it is not only the bankruptcy law that is relevant to the bankrupt, Swedish legislature nowadays consists of a wide spectrum of different rules that affect, or at least theoretically to affect the debtor's behavior in bankruptcy and while facing bankruptcy. Examples of these rules are, in addition to bankruptcy law, the liability of the Companies Act, the personal liability of certain taxes and duties and the criminal provisions of the Penal Code. The listed rules are rules of liability, rules that in different ways enacts a responsibility for the debtor or a representative of the debtor at various undesirable actions. In addition to these liability rules there are also other rules that may affect the debtor's conduct. An example of such law is the Wage Guaranty Act, which is directed towards the workers, but wage guaranty also has enabled a new type of fraud, which in turn made the bankruptcies into something attractive as it is a prerequisite for the wage guaranty to be approved. That these rules affect the debtor's conduct is reasonably clear, but the question is how and how much, or if there are other phenomena outside the legal sphere, also are affecting the conduct. There are many legal sociological theories that intend to provide answers to these questions. It is the sociology of law’s task to answer the question of how the law affects society, although this is not the only task for this branch of science. There are legal sociological theories dealing with both what the law’s task is and to what extent these tasks are met. These theories concerns law in general and when applied to the bankruptcy law, we see that the bankruptcy law has tasks that may not be visible at first glance. For example, the personal liability of the Tax Procedure Act functions both as a way to distribute benefits and drawbacks, and to affect the actions taken by individuals. Moreover, the legislation has some presumptive effects that were not intended by the legislator. For instance the Wage Guaranty Act sometimes has the unintended effect of fraud. The criminal provisions of Chapter 11 Penal Code do not undoubtedly have the effect that the legislator intended. In summary, it is difficult to make forecasts of the legislation’s impact on the individual.

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