Tvångslikvidation på grund av kapitalbrist - En balansgång mellan två intressen?

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

Författare: Jan Reinprecht; [2017]

Nyckelord: Associationsrätt; Law and Political Science;

Sammanfattning: Since 1895, there have been provisions on compulsory liquidation due to capital shortage. Today, the provisions are found in the Swedish Companies Act (ABL) chapter 25 art. 13-20. The rules stipulate that the board is, under certain conditions, obliged to act. When this duty to act arises for the board, is stated in ABL chapter 25 art. 13: The board shall immediately draw up a control balance sheet when there is reason to assume that the company's equity is less than half of the registered capital (the critical limit). If the control balance sheet shows that there really is a critical capital shortage, meaning that an actual critical capital shortage has been confirmed, the board shall convene a first control meeting of shareholders. If the shareholders, at this first control meeting, do not take a decision to liquidate, a respite period starts to run. During this respite, the shareholders have eight months to try to heal the shortage. The whole shortage must be restored. If the shareholders fail to cope with the shortage within the time limit, at the end of the respite, an obligation to liquidate occurs. ABL chap. 25 art. 18 stipulates the conditions under which the board may suffer from personal payment liability. Thus, if the board fails to draw up a control balance sheet, fails to convene a first control meeting or fails to apply for liquidation, the board members may suffer personal payment liability. Under certain circumstances, other company representatives and shareholders may also suffer from personal payment liability. From older legislative history, the statements were sparse regarding what the purpose of the legislation really was. In the 1940s it was said that the idea was to promote health in the limited company system. In the 1970s it was stated that as a limited company operates without personal liability, the business should not be able to continue when most of the share capital has been lost. However, around the turn of the century, the legislator made more statements about the purpose of the regulation. Ultimately, it was said, the purpose was to protect the company's creditors against all capital being consumed before the liquidation process had started. Furthermore, it was said that the personal payment liability was a pressure measure to make the board comply with the act-based action pattern. The liability provisions were meant to push the board into action. However, there were more statements made. The legislator also stated that it is not intended that companies that are viable should be forced into liquidation. In other legislative history, this has been repeated, namely that it is not the legislator's intention to force viable companies to liquidate. It has also been stated that it may often be impossible to heal the capital shortage if too little time is given to the owners, and in that case liquidation would lead to unnecessary value destruction. The purpose of this work has been to first review the provisions on compulsory liquidation due to capital shortage. Following the review of the provisions, there is then a discussion in which the starting point for the discussion is the legislator's statement that the provisions are in place to protect the creditors. The purpose of the discussion is to investigate, with the help of the previous review, whether the creditor's protection is decisive, or if the legislator also considers other interests. The investigation shows that it is not as easy as just talking about a creditor's protection when talking about the regulatory system in question. The starting point is the creditor's protection, but it shows that the legislator does not intend to force companies, that have a real opportunity to survive, into liquidation with these provisions. Thus, a need to safeguard the interests of the shareholders is made visible. The conclusion drawn is, that there is a balancing act between the creditor protection and the shareholder interest, where the creditors' need for protection stands against the shareholders' interest in not to be forced into liquidation.

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