Det allmänna aktiebolagsrättsliga låneförbudet- Med särskilt fokus på begreppet penninglån

Detta är en Kandidat-uppsats från Lunds universitet/Institutionen för handelsrätt

Sammanfattning: The primary aim of the paper is to answer what is meant by the concept of money lending. Secondary questions to be answered are when a transaction constitutes a violation of the general prohibition of lending. As a general rule, the prohibition on lending means that a limited liability company may not make loans of money to shareholders, directors and others who are part of the "prohibited circle". A large part of the assessment of what constitutes a prohibited loan has to do with how we understand and interpret the criterion of money lending. In civil law, money lending refers to an advance of funds based on a contract between two parties. This means that a money loan is not a beneficial transfer, which distinguishes the transaction from other types of value transfers. In assessing whether a transaction is caught by the loan prohibition, the payment should be contrasted with other related concepts. The distinction between the general prohibition on loans and similar transactions is not always entirely clear. Violators of the loan prohibition risk a variety of sanctions, both civil and criminal. The legislator's motives behind the introduction of a loan prohibition were twofold, to protect creditors and to prevent tax evasion. The general loan prohibition is debated in the doctrine, and much stems from the criminal sanctions and the legislator's choice to regulate tax law in the area of company law. Penal sanctions mean that the principle of legality must be considered when interpreting the concept of money lending. In the precedent NJA 2021 p 388I, the creditor protection was not at risk when the transfer was made. According to the HD, this was of importance for the outcome of the case. The HD concluded that under the circumstances described, it could not consider the payment as a money loan. If the circumstances of the transaction are such that there is reason to expect that at the next shareholders' meeting a profit distribution will be decided in an amount corresponding to the amount paid out, the general prohibition on loans has not been violated. On the other hand, the HD does not clearly address the question of whether the transaction was a money loan or not. The HD says that the payment should not be "regarded" as a money loan. The fact that something should not be "seen" as a money loan does not mean in plain language that the payment de facto was not a money loan according to my interpretation.

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