Förtäckta värdeöverföringar : En komplicerad lovlighetsprövning

Sammanfattning: The phenomenon of corporation law called covert transfers of value is a controversial topic whose regulation is not always easy to understand. However, it is expressed in 17: 1 p. 4 ABL which states "another business event that causes the company's wealth to decrease and does not have a purely commercial character to the company". The rule thus states that such a business event is a transfer of value in the sense of company law. However, what 17:1 p. 4 ABL really means and whether and how a covert value transfer is actually allowed is not always obvious. The thesis deals with Chapter 17. ABL, which regulates transfers of value from the company, partly to answer the question of how covert transfers of value are regulated in accordance with Swedish law and partly whether the regulation of covert transfers of value can pose risks to the company's creditors and shareholders. These questions are two of the three questions the thesis seeks to answer. An understanding of the concept of transfers of value is central to the thesis and therefore all types of transfers of value are dealt with. However, covert transfers of value are dealt with to the greatest extent, partly because of the purpose and questions of the thesis and partly because of its lack of clarity in relation to other types of transfers of value. The thesis also analyzes two legal cases which contributes with examples of how the assessment of covert transfers of value is carried out. The purpose of the thesis is also to analyze and explain how Norwegian, Danish and Finnish company law deals with covert transfers of value. The third question is thus whether Swedish regulation of covert transfers of value can evolve with inspiration from other Nordic law. An investigation of each country's regulation of how transfers of value may be made and how each country's creditor protection rules are formed is also appropriate. The analysis of the thesis presents relevant criticism of the general systematics in Chapter 17. ABL as well of the difficulties regarding application and interpretation of Chapter 17. ABL. An hypothetical example is also presented which deals with a covert transfer of value. The example is designed according to previously stated interpretation problems which the specific transfer of value in the example illustrates. After a subsequent summary and analysis of how the other Nordic countries' corporation law regulates transfers of value, a “de lege ferenda” reasoning is conducted with the aim of assessing whether Swedish regulation can evolve with inspiration from the regulations of the aforementioned countries. After finding that some inspiration can facilitate the interpretation of Chapter 17. ABL in general and the regulation of covert transfers of value in particular, two rules of my own are also presented. The first rule of the two is based on Nordic law. The second rule is based on the thesis investigation and analysis of transfers of value as a whole, rather than directly on the basis of other Nordic law. The second rule is also recommended in the light of the hypothetical example previously analyzed.