Var går gränsen för dåliga affärer? - En undersökning av rekvisitet ”inte har rent affärsmässig karaktär för bolaget” i 17 kap. 1 § 1st. p 4 aktiebolagslagen
Sammanfattning: This bachelor’s thesis covers the topic of how to distinguish poor business practices from undervalued transactions. The topic of undervalued transactions has been extensively debated in the Swedish jurisprudence, which has resulted in the development of two different methods for determining the commercial nature of a transaction. The first method uses an objective necessary condition, while the second one uses a subjective necessary condition. When the most recent Swedish Companies Act came into force from 1 January 2006, the legislator decided to end the debate by selecting the first method as the preferred solution. The legislator decided to define the necessary condition as “not being of a purely commercial nature for the company.” (Chapter 17 1 § 1st. p 4). In addition, the legislator provided some guidance in the government bill regarding how to interpret the text. The problem with the definition is that it is vague, which makes it difficult to determine how to apply the law. Furthermore, the guidance from the legislator is unclear, which makes it open to interpretation. The purpose of this paper is to investigate how the necessary condition is interpreted by the legislator, courts, and doctrine. Furthermore, I will describe the two methods and evaluate their strengths and weaknesses with regard to the objectives of the legislation. This essay concludes that the legislator’s objective method has got several weaknesses regarding the predictability and the risk to label bad business practices as undervalue transactions. Therefore, I suggest that the legislator to opt for the other method.
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