Ansvarsgenombrott - En komparativ utblick över svensk och norsk rätt

Sammanfattning: The essay deals with the breakthrough of the limited liability of a shareholder in a Swedish and Norwegian context. It is a fundamental principle of Swedish and Western corporate law that a shareholder is not personally responsible for the obligations of the company. In Sweden, this is expressed through Chapter 1 § 3 of the Swedish Companies Act (“Companies Act”). The fact that this absence of liability cannot easily be ignored is in principal an equally essential idea. However, this absence is not without exception. In accordance with Chapter 29, Section 3 of the Swedish Companies Act, a shareholder is liable for damages that he or she has, contributing to a violation certain norms, deliberately or negligently caused to the company, another shareholder or a third party. Although these exemptions provided for by law haven’t caused legal scholars or for that matter the courts any sleepless nights, questions have arisen whether, in addition to these exemptions, it can be said to exist a legal norm, with the meaning that the limited liability can be set aside even without the support in law. In Sweden, the current legal situation can be summarized as follows. A claim to disregard the limited liability of shareholder and which is made on the grounds of an unwritten rule of corporate law, is unlikely to have any success before the courts. The question on whether or not such a rule actually exists has been the subject matter of several articles, books and a special government report on the possible codification of a rule of that sort but it’s not possible to draw any type of conclusion. HD dealt with the issue as recently as in NJA 2014 s. 877, and although the interpretations of the ruling is not entirely consistent, the door to an application of an unwritten rule with the ability to set aside the limited liability of a shareholder is, at least for the time being, temporarily closed.