Konkursrätten : – om konkursboet ses som en association i tvångslikvidation med borgenärerna som medlemmar

• Main Author: Söderlund, Jenny
• Format: Doctoral or Postdoctoral Thesis
• Language: Swedish
• Published: Uppsala universitet, Juridiska fakulteten 2009
• Subjects: Konkursbo; utdelning; konkursförvaltning; konkursbofrågor; medlemsfrågor; konkursgäldenärsfrågor; Private law; Civilrätt; Iceland
• Online Access: http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-110497

The legal discourse about bankruptcy matters is blurred and often inconsistent as regards the legal classification. That is detrimental, because the legal classification determines not the final and multilayered rule, but the starting point for the legal argumentation and several fundamental issues of law, such as the creditors’ relation to the bankruptcy estate, the character of debtor’s divestment and the ownership of the estate. Bankruptcy can, in short, be classified as a complex civil litigation between partly the creditors and the debtor, partly the creditors mutually (the Litigation Theory), complemented by a principle that the debtor loses his legal capacity upon the opening of the proceeding (the Administration Theory). Another possibility is that bankruptcy should be regarded as a general distraint upon debtor’s assets, legally domiciled in the law of distraint. A third alternative is that bankruptcy is a trust for the distribution of debtor’s assets, similar to the division which must be made when a person is dead or disappeared (the Distribution Theory). A fourth possibility is that bankruptcy should be analyzed in the law of corporate entities. Then, bankruptcy briefly means that a bankruptcy estate is formed and immediately put into winding up (the Corporate Theory). The hallmarks of the Corporate theory are the special features that the creditors (neither the debtor nor the stakeholders or the property right holders) are members (shareholders) in the bankruptcy estate (the debtor only has the right to the residuals when the distribution is made) and that the ownership of the assets is legally transferred to the bankruptcy estate. The purpose of the thesis is to elucidate the ambiguity of the legal discourse and to present the Corporate Theory, which, in my opinion, has important advantages. The thesis starts with an introduction which is followed by some historical and comparative remarks (chapter 2 regarding Roman law and the law of the other Nordic countries except for Iceland). Chapter 3 ...