Att likvidera reglerna omtvångslikvidation av aktiebolag vid kapitalbrist : En rättsanalys av förslaget i SOU 2023:34 om att ersätta tvångslikvidationsreglerna med solvensbaserade regler, i syfte att ge ett mer ändamålsenligt skydd

Sammanfattning: The Swedish legislation regarding culpulsory liquidation and personal liability has been heavily criticized. In the beginning of July 2023, a proposal was published from an inquiry regarding how to prevent and counter criminal and dishonest use of corporations. One of the proposals that suggested to change the Swedish legislation was the elimination of the rules of compulsory liquidation and personal liability. In this essay a legal analysis of the changes and it ́s effects are made with the current legislation as a starting point. The rules of compulsory liquidation in the Companies Act (aktiebolagslag 2005:551) set a limit on how far a loss-making company can be run before it has consequenses on the board of directors and the company itself. When there is reason to suppose that the company ́s equity (net assets) falls below half of the registered share capital, the rules ordain the directors to follow a certain pattern of conduct. The measures lead either to the company being re-capitalised or liquidated. If the directors misuse the rules or do not follow all the predescribed steps, the directors responsible becomes equally personally liable for the obligations incurred by the company during the whole period of the negligence. It has been questioned whether the rules are still appropriate and critics also claim that the rules nowadays hollow the protection of creditors that the rules in fact aimed to maintain. The critics have elucidated that it is mote relevant to ensure that a company is able to pay its debts as they fall due, than having assets exceeding its debts. Amongst other arguments the rules are also criticized for being too complex and difficult to uphold in an efficient matter. The inquiry ́s suggestion to replace the rules of compulsory liquidation with rules of solvency aimes to protect the creditors while giving the positive effect that of easing companies’ regulatory burden. The rules of solvency shall be better suited for the purpose, more clarified and expedient than the rules of compulsory liquidation. A strenghtening of the creditor’s protection is done by enacting that the directors continuously have a responsibility to ensure that the company ́s financial position is satisfactory in relations to the company ́s creditors. This financial assessment includes a check that the company ́s equity and liquidity correspond to the nature, scope and risks of the business. From the summarised conclusions that have been made in this essay there is only one reasonable proposal. The suggestions that the inquiry has made are in general welcomed. Although, there are some diffuse definitions and terms in the proposed legislation that may have bigger inpacts of Swedish corporates and the comporate law than the inquiry has shown. Even some of the bigger parts of the proposal can be criticized. The reparations suggested are weaker than the penalty5of personal liability. This will increase the criminal use of corporates and decrease the possibility for creditors to succeed in their claims. The final conclusion, that the rules proposed by the inquiry are to be advised against, should not be interpreted as a fully dismissal of the changes. As a whole, the proposal is more efficient and appropriate in its protection of creditors and the company ́s capital. There are details in the proposed legislation that needs to be more elaborated. It is motivated to look into the possibility of combining the proposal with at least personal liability. It would make the system more similar to the brittish system of wrongful trading, which has been recommended by many law professionals.