Abandonering i svensk rätt - En de lege ferenda analys av abandoneringsinstitutet i svensk rätt med komparativa utgångspunkter

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Swedish law does not have a statutory provision regarding abandonment (UK: disclaimer of onerous property), the right for a bankruptcy estate to disown property with a legally binding effect, meaning that the estate does not answer to any obligations connected to the disowned property. However, The Swedish Supreme Court has in its ruling NJA 2004 s. 777 established that a trustee’s decision to abandon property can constitute an acceptable management measure, and is therefore considered to be a lawful action. This precedent has though been heavily criticized since it has given rise to practical inconveniences and a handful of unanswered legal difficulties. This thesis aims to investigate whether or not Swedish law should incorporate a statutory abandonment provision. To fulfill this purpose, this thesis first and foremost defines what ought to be abandonment’s position in Swedish law. NJA 2004 s. 777 and a number of verdicts from The Swedish Supreme Court and the Land and Environmental Court of Appeal respectively will act as a point of departure for this investigation. Relevant comments and discussions in doctrine are also presented. Thereafter, this thesis will investigate abandonment’s legal position in Norway and the Netherlands. Finally, this thesis will identify and discuss the different aspects that must be taken into consideration when designing a statutory abandonment provision. This thesis identifies a handful of undesirable consequences because of the above-named verdict. The Swedish Supreme Court ruled that a decision to abandon property can be revoked by the trustee. This stance however, means that trustees can speculate with property at the expense of their debtors. Also, question marks are being raised whether or not abandonment can be done with full discharge of any liabilities. Since the decision can be revoked whenever, the property at hand never actually leaves the bankruptcy estate’s sphere of legal power. The Supreme Court has not either shed any light on how the right to abandonment responds to obligations that derive from environmental law or tax law. However, the Land and Environmental Court of Appeal has in its verdict MÖD 2015:19 ruled that a bankruptcy estate can not abandon property to avoid any environmental obligations. The premises set for abandonment in NJA 2004 s. 777 can thus be said to be poorly tailored to other laws already in place. This thesis’ comparative findings show a broad right to abandonment in Norway, prescribed by a detailed statutory provision. The trustee must document the time and date when a decision is made, since this is when the decision’s legal effects enter into force. The provision also describes that the debtor must account for any arisen surplus if abandoned property were to be sold. Two interesting aspects can be found in Norwegian doctrine. First of all, even property with environmental obligations can be abandoned. Secondly, the trustee can be considered to be obligated to abandon property if this leads to the best outcome for the bankruptcy estate. The right to abandonment is not as generous in the Netherlands. A statutory provision grants abandonment to the debtor for compassionate reasons, but this right is being used much more freely in practice. Through a series of verdicts it has been established that property with a negative value can not be abandoned by the estate, this approach is fueled by a stance that third parties shall not have to bear the costs of the negative property. Finally, this thesis identifies a number of aspects that should be considered when designing a statutory abandonment provision. First and foremost, both formal requirements and the legal effects of the decision should be part of the provision. Additionally, the provision should regulate how, and when, a decision to abandon property can be revoked. Also, the issue of revocation in regards to other unaffiliated third parties must be addressed. In my opinion, a Swedish statutory provision should also prescribe that debtors must account for any surplus if abandoned property were to be sold. Last but not least, a future statutory provision should offer clear answers as to how the right to abandonment correlates to any environmental and/or tax obligations that burden the property at hand. Regarding those obligations, this thesis also offers an alternative argument to justify any environmental liabilities for the bankruptcy estate. This is because, as this thesis will show, the argument used by the Land and Environmental Court of Appeal is not legally valid.

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