Förmånsrätt : Har alla borgenärer lika rätt?
By the time the law of preferential right was legislated the purpose of the law was to give all creditors equal rights. The purpose of this master’s thesis is to analyze the law in force and unravel whether the purpose of the law has been fulfilled or not. If a deviation has been made I will decide whether it can be justified.
Since 1st of January 2004 the preferential right regarding taxes has been abolished. Since then the claims of the Government do not have any preferential right. Wages still have a preferential right. Since the law of the Governmental wage guarantee was legislated the Government now pays the workers claims and then take over the preferential right regarding wages.
When a company has gone bankrupt there is a possibility to apply recovery in order to bring back property to the bankrupt’s estate Regarding the Government’s claims regarding taxes, recovery is prohibited.
There is a regulation in the criminal code called favouritism of creditors which is related to the rules of recovery. The criteria in order to break this regulation are the same as regarding the rules of recovery. This leads to that if a debtor pays the Government the debtor does not break the regulation in the criminal code.
In addition to this the Government has an opportunity to receive payment by using the regulation called the legal representative’s responsibility. This regulation means that the legal representative of a company is obliged to pay the company’s taxes if the company is not able to.
By this I draw the conclusion that the purpose of the law of preferential right has not been fulfilled. By looking at the regulations I come to the conclusion that the Government has an advantage that no other creditor will be able to achieve. The workers are the only creditors, despite the Government, who are guaranteed payment through the Governmental wage guarantee. This is a deviation which, according to me is justified because of the fact that workers have a greater need for protection than other creditors. There is also a need to have a division in the law of preferential right because every claim has arisen in a different way. The advantage of the Government is, according to me, not justified because this leads to the fact that the Government is the only creditor except workers who is considered being in need of protection.
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