Konkursboets rättsliga ställning efter avslutad konkurs - Om upplösta konkursbons rättskapacitet och partsbehörighet

Sammanfattning: The purpose of the thesis is to contribute to the understanding of the legal status of the bankruptcy estate and to examine the extent to which a bankruptcy estate can be recognised as having legal capacity and party capacity after the completion of the bankruptcy. The bankruptcy estate is a legal entity that has both legal capacity and party capacity. When the bankruptcy is completed, the bankruptcy estate is dissolved and therefore as a rule loses both its legal capacity and its party capacity. Despite the dissolution, there are several cases in which the bankruptcy estate has been recognised as having the possibility to take legal action and procedural measures. A legal dogmatic method is used to examine when the bankruptcy estate has the need for and the possibility to be recognised as having legal capacity and party capacity despite the completion of the bankruptcy proceedings. It can be concluded that the bankruptcy estate has the need and the possibility to be recognised as having legal capacity and party capacity in three situations; when there is an ongoing proceeding at the completion of the bankruptcy, when an asset that was not included in the original distribution proposal or the write-off decision is to be post-distributed to the creditors, and when there are proceedings related to the post-distribution or bankruptcy proceedings. Regarding ongoing proceedings at the time of the completion of the bankruptcy, it is possible to recognise the bankruptcy estate party capacity in proceedings that were either ongoing at the completion of the bankruptcy or proceedings that have been appealed before the completion. To ensure that the main purpose of the bankruptcy is fulfilled, it is argued in the thesis that it should also be possible to recognise the bankruptcy estate party capacity to take over or enter into unknown proceedings of the bankruptcy debtor that were ongoing at the time of the bankruptcy’s completion or to appeal against the outcome of proceedings concluded after the completion of the bankruptcy. Regarding post-distribution, a post-distributable asset may consist of more assets than money than are in the immediate possession of the bankruptcy trustee. For post-distribution to take place, the bankruptcy estate must be recognised as having the legal capacity to collect and convert the post-distributable asset into distributable funds. Based on a comparison with the liquidator’s powers, it is also argued that the bankruptcy trustee has the right to request judicial assistance from the Enforcement Authority to collect the asset. However, the legal position is unclear if the post-distributive assets are disputed or require more extensive measures to be converted into distributable funds. In the case Ö 3646-22 the Supreme Court stated that the bankruptcy estate only has party capacity in exceptional cases, as the bankruptcy trustee’s actions are limited to actions that are part of the post-distribution process. Based on an analogy with the liquidator’s powers, it is argued in the thesis that this statement is restrictive and that leads to practical problems regarding the post-disruption proceedings. The statement also leads to an inconsistent treatment of the party capacity of dissolved legal entities and the powers of the legal entity’s representatives. For the post-distribution procedure to fulfil its function and to ensure the main purpose of the bankruptcy procedure, it is argued in the thesis that the Supreme Court’s assessment is restrictive and limits the possibilities to ensure the main purpose of the bankruptcy procedure. The outcome of the decision means that the possibilities of recognising the dissolved bankruptcy estates party capacity are likely to be limited. In most cases, the bankruptcy trustee will be obliged to sell the subject of the dispute and distribute the purchase price to the creditors. Some exceptions to the Supreme Court’s statement have been identified. In addition to proceedings that are ongoing when the bankruptcy is completed, it should be possible to recognise the bankruptcy estate party capacity in proceedings that arise from an appeal against the Enforcement Agency’s decision to warrant judicial assistance. It should also be possible to recognise the bankruptcy estate party capacity in proceedings that are related to the bankruptcy or post-distribution proceedings. In relation to the post-distribution proceedings, it should also be possible to recognise the bankruptcy estate party capacity where the legal action is of such a nature that it can be considered a decommissioning measure. For example, it should be possible for the bankruptcy estate to bring a claim for specific performance before the court if the right of the bankruptcy estate has been established by a previous claim for declaratory judgment. However, the legal position is still considered unclear, and it is to be expected that the Supreme Court will have to take a stance on which exceptions should be accepted in future cases.