Välbehövlig lag - men vilken effekt? - En rättsvetenskaplig uppsats om lagen om företagsrekonstruktion

Sammanfattning: Companies that are not competitive and does not have liquid assets to run their business has to be liquidated. Different insolvency proceedings such as bankruptcy therefor exist to liquidate these companies. However, a special law to reconstruct viable companies that are currently in an economic crisis, but have good prospects has been sought after. On the basis of a bill presented in 1995 the act (1996:764) (LFR) entered into force in 1996. LFR has now been in force for over 20 years and various revisions of the legislation have been made. Despite these various revisions, there is no doubt that neither the act's purpose or its function is achieved. The motive of this paper is to examine which improvements can be made for that purpose to be achieved. The purpose of LFR is to reduce the number of unnecessary bankruptcies of viable businesses. However this objective is not achieved, which statistics clearly show, and the reasons why are numerous. All causes are not dealt with in this essay as it is limited to the application and conditions of the grant. Roughly speaking, there are four conditions that must be met for an application. Debtor Companies should be traders and illiquid. In addition, a formal and substantive examination of the application has to be made. The substantive examination is that the court should make a future forecast if the company’s reorganisation is likely to be successful. The investigation shows that there rarely is a problem for the court to determine whether a debtor company is a trader and if it can be assumed that the purpose of the reconstruction is achieved. This is related to the fact that the application is often inadequate, which hampers the courts future forecast if reconstruction can be successful. The study further shows that there is a lot of improvement to be made. That applications received too late is a big problem. This is because the company's financial position is often so poor that there is no reconstruction. In the American court this problem has been solved by clauses that favour the debtor company if applications are received on time. Incomplete applications are causing big problems, but a way to deal with the problem is that different minimum requirements are set out in LFR. For example, it should clearly indicate what the application should contain and what the minimum requirements are for an application. A minimum requirement could be that there is a lower limit for how bad the economy of a company can be for an application not to be granted, something that does not exist today. The conclusion is that the law does not achieve its purpose and the reasons why are numerous. This paper examines some improvements that should be made for the application and basis of the grant.