Läkande av kapitalbrist - något om kapitaltillskott och dess återbetalning

Sammanfattning: The essay deals with topics related to the rules on compulsory liquidation due to lack of capital in Chapter 25, Sections 13-20 of the Swedish Companies Act (ABL), primarily focusing on how capital deficiency can be remedied through various forms of capital injections and how these can be repaid to the contributor. In NJA 1988 p. 620, it is stated that a capital injection only remedies the capi-tal deficiency if the company is not obligated to repay the injection. The re-payment is therefore dependent on the existence of distributable profits and a resolution on repayment at a general meeting of shareholders. The essay examines the majority requirement for such a resolution at the gen-eral meeting. It is concluded that such a resolution deviates from the presumed profit purpose in the Swedish Companies Act and that the principle of equali-ty may be violated in certain cases due to the resolution. Therefore, a unani-mous resolution at the general meeting is required for repayment to take place. The essay investigates whether it is possible to circumvent the high majority requirement by introducing a provision in the articles of association that over-rides the profit purpose until the capital injection has been repaid. Such a pro-vision would allow repayment to be decided by a simple majority, but never-theless, unanimity among those present at the general meeting is required to introduce the provision into the articles of association. One question addressed, which has been extensively discussed in legal litera-ture, is whether a capital injection can remedy a capital deficiency if it is ac-companied by a repayment condition directed towards the company, but where repayment can only be claimed in the event of liquidation. In my opin-ion, it is not consistent with the rules and preparatory works of the provisions on the control balance sheet to exempt private injections that bind the company to repayment in liquidation from being recognized as liabilities